Citation Nr: 1327545 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 11-01 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for degenerative disc disease with left sided stenosis. 2. Entitlement to service connection for degenerative disc disease with left sided stenosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Larson, Associate Counsel INTRODUCTION The Veteran had active service from October 1980 to March 1983. This matter comes to the Board of Veterans' Appeals ("Board") on appeal from an April 2010 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Sioux Falls, South Dakota which denied the Veteran's petition to reopen. The Board has reviewed the Veteran's electronic record ("Virtual VA") prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The RO denied the Veteran's claim of service connection for degenerative disc disease with left sided stenosis last denied in February 2006 decision. The Veteran did not appeal. 2. The Veteran's application reopen his claim based on new and material evidence was denied in May 2008. The Veteran did not appeal. 3. The evidence added to the record since the May 2008 rating decision was neither previously submitted to agency decision makers nor cumulative and redundant of the evidence on record; it relates to an unestablished fact necessary to substantiate the claim. 4. The preponderance of the evidence in the reopened claim is against a finding that the Veteran has a back disorder related to service. CONCLUSIONS OF LAW 1. The evidence received since the May 2008 rating decision that denied the Veteran's attempt to reopen his claim for service connection for degenerative disc disease with left sided stenosis is new and material and thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria to establish service connection for degenerative disc disease with left sided stenosis are not met or approximated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 ("VCAA"), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, proper notice must be provided to the claimant before the initial unfavorable adjudication by the RO. 38 C.F.R. § 3.159(b)(1); Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). With regards to new and material evidence claims, the Court held that the VCAA notice requirements require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. Kent v. Nicholson, 20 Vet. App. 1, 11 (2006). The Board is reopening the Veteran's claim for service connection for degenerative disc disease. Thus, any deficiencies in notice are considered harmless and non-prejudicial. With regards to service connection, for the VA to satisfy its duty to notify, it must inform the claimant of any medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice applies to three distinct types of information: 1) information that is necessary to substantiate the claim; 2) information that VA will seek to provide; and 3) information that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, proper notice must be provided to the claimant before the initial unfavorable adjudication by the RO. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The United States Court of Appeals for Veterans Claims held that the VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with a letter in March 2010 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. The letter was received prior to the initial adjudication of the Veteran's claims. Thus, the Board concludes that the duty to notify has been met. To satisfy its duty to assist, the VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A. This includes assisting the claimant in obtaining necessary medical examinations and opinions. Id. The VA must provide a medical examination when there is competent evidence of a current disability, evidence of an in-service injury, an indication that the current disability may be associated with service, and insufficient competent medical evidence on file to reach a decision. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board concludes that the duty to assist has also been met. The Veteran's service treatment records ("STRs") were obtained, as well as the totality of his VA and private treatment records. Although the Veteran's claim is presently reopened, the conduct of a VA examination is not necessary. As will be explained below, although the Board must presumed the credibility of newly-submitted evidence in an application for reopening a claim, (i.e., apart from any other evidence of record) the presumption does not survive once the claim is reopened. The source of the newly-obtained evidence is not credible, and the Veteran has not alleged there are any relevant outstanding private medical treatment records beyond what was submitted in his bid to reopen his claim. New and Material Evidence The Veteran's claim for entitlement to service connection for degenerative disc disease was previously denied by an August 2004 rating decision. This decision was reconsidered following a January 2005 hearing, but was denied in an April 2005 decision. The May 2005 decision was reconsidered and denied again in a February 2006 decision. This decision was not appealed and became final. 38 U.S.C.A. § 7105(c). The Veteran tried to reopen his claim but was denied in a May 2008 rating decision, which also became final. Id. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). Evidence is new when it has not been previously submitted to the VA. It is material when by itself or when considered with previous evidence of record, the evidence relates to an unestablished fact necessary to substantiate the claim. Such evidence cannot be cumulative or redundant of the evidence of record at the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West , 12 Vet.App. 312 (1999). Evidence will satisfy the reasonable possibility standard when, considered with the old evidence, it would at least trigger the VA's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In an application to reopen a previously denied claim, the Board must examine evidence which has been submitted since the last prior final RO or Board decision which denied the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Here, the last final decision is the May 2008 denial of the Veteran's application to reopen his previously denied claim. In support of his current application to reopen his claim, the Veteran has submitted two pieces of evidence: a signed statement by a former girlfriend and medical records from 2009. Neither piece of evidence was considered in the May 2008 decision, thus they are both "new" for purposes of this analysis. While the Veteran's 2009 medical records from Dakota Orthopedics are "new," they are not "material." The records consist of a single entry with an addendum reflecting treatment by Dakota Orthopedics in October 2009. The record discusses the Veteran's current back condition and the prescribed treatment. It does not contain any evidence regarding the etiology of the Veteran's degenerative disc disease. Thus, the records are not "material" evidence. See generally Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). The statement by the Veteran's former girlfriend is "material." Evidence received subsequent to the prior final rating decision is presumed credible for the purposes of reopening the claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The ex-girlfriend recalled the change in the Veteran's physical capability after a fall in service in 1981 or 1982, including the need for the Veteran to see the chiropractor every month, his problems with pain and fatigue, his need to stretch, and his inability "do any of the things we enjoyed before his injury." These statements are "material" because without regard to any other evidence previously of record, they tend to substantiate that the Veteran has had back symptoms following his discharge from service. The Veteran was denied because he failed to establish a nexus linking his in service injury to his current disability due to the myriad of injuries suffered post-service. Presuming the credibility of this statement, it tends to substantiate the Veteran's claim. Thus, the evidence is both "new" and "material;" therefore the claim must be reopened. III. Service Connection The Board concludes that the Veteran will not be prejudiced by fully adjudicating his service connection claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when adjudicating a question not addressed by the RO, the Board must consider whether the claimant has been prejudiced by any notice deficiencies). The Veteran was provided with VCAA notice in March 2010 detailing not only what the evidence must show to reopen a previously denied claim, but also for a service connection claim. Furthermore, in an October 2010 statement to the VA, the Veteran indicated that he had no more medical evidence to submit and requested the VA to "continue to process my claim." Thus, the Board will now decide the Veteran's claim for service connection for degenerative disc disease. The Veteran contends that his current degenerative disc disease condition relates back to an in-service back injury. He states that he has had chronic back pain since an in-service incident in 1982. Service connection will be granted if it is shown that the veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to any medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that the Board may accept one medical opinion and reject others with explanation of the reasons and bases for such findings. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board cannot make its own independent medical determinations, and must have plausible reasons based upon medical evidence in the record for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinksi, 1 Vet. Appl. 171 (1991)). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. The Federal Circuit held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") However, a veteran is not competent enough to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In order to grant a veteran's claim for a service connected disability, the VA must examine the evidence and determine whether the claim is supported or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the documentation of a matter, the VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Veteran has a current disability. He has been diagnosed with degenerative disc disease with life sided stenosis, including at his June 2004 VA examination. The Veteran's STRs show two occurrences of back-related treatment. In March 1982, the Veteran was examined for hepatitis-like symptoms. There, he complained of lower back pain. In September 1982, he complained of lower back pain after lifting heavy loads. He received a diagnosis of a back strain. On the Veteran's separation from service examination, his spine was listed as normal, and no complaints about back pain were noted. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Although the Veteran had two instances of back related symptoms in service, the record shows that these symptoms did not continue after service. Instead, in June 1984, the Veteran sought treatment for lower back pain resulting from a work related incident a few days prior. One month later, he again sought treatment for lower back pain, and informed the examiner of an automobile accident three weeks prior. Again in November 1992, he sought treatment for lower back pain after attempting to lift a hog at work. Critically in view of his current allegation that he has had continuous back pain since service, as well as that of his ex-girlfriend, the examiner noted the Veteran "[s]tates he was asymptomatic until the time of his injury." The Veteran was treated for thoracolumbar pain in February 1997 and upper back pain in October 1999, which the examiner writes the Veteran hurt while changing a window in his home. While at work in November 2003, the Veteran fell 18 feet off of a roof and hurt his lower back. The Veteran submitted the totality of his records from both Neurosurgical Associates and Sioux Valley Hospital for lower back treatment. Those records contain consultations regarding potential procedures, as well as the records of the actual May 2004 surgery. The Veteran had a fusion procedure performed on the lower back, as well as a minimal access discectomy. The records contain various diagnoses of degenerative disc disease at the L4-5 and L5-S1 levels, as well as mild compression fractures of T12 and L1 vertebrae subsequent to the fall. The Veteran submitted an April 2004 consultation from a doctor regarding his back condition following a work related 18 foot fall from a roof that happened in November 2003. He was found to have a compression fracture and disc rupture. In that consultation, the doctor noted "severe old degenerative disk [sic] disease with bulging at L5-S1." In addition to the treatment records, the Veteran submitted a December 2004 impairment rating report from Sioux Falls Physical Medicine regarding his back injury subsequent to the fall and surgery. Of interest, the Veteran does not report any in-service back injury and subsequent pain to the examiner when questioned about his past medical history. The Veteran did report his 1984 automobile accident, as well as a work-related injury in the 1990s that affected his wrist. The examiner concludes the Veteran possessed "a 20% whole-person impairment for his history of disc prolapsed and herniation at L4-5 and his fusion at L4-5 and L5-S1. He would have a 5% whole-person impairment for the compression fracture at L2." The report is silent on the etiology of the Veteran's back condition. The Veteran received a VA examination in June 2004. The examiner reviewed the entire claims file in detail. The examiner noted all of the above incidents that happed to the Veteran, both in service and after service. The Veteran reported that he had experienced back pain "since 1984 military service." The examiner noted that the Veteran experienced a constant, sharp pain in the lower lumbar spine. The examiner concluded that the injury the Veteran experienced in service was "less than likely the contributory factor to his lumbar disease," and again noted the various back-related incidents the Veteran experienced since discharge. The Veteran testified in March 2005 that he injured his back in service in 1982 and experienced chronic pain. He indicated that he would obtain a buddy statement to corroborate his version of the incident and his subjective complaints since the incident, as well as a medical opinion establishing the etiology of his condition. He also stated that for the past 25 years, the only type of work he's done has been "strenuous." The Veteran's ex-girlfriend has alleged that she recalled his back pain since service. The medical records consist of a single entry with an addendum covering the Veteran's trip to Dakota Orthopedics in October 2009. The record discusses the Veteran's current back condition and the prescribed treatment. The Board concludes that the preponderance of the evidence is against the establishment of a nexus between the Veteran's in-service injury and his current lower back disability. The evidence supporting the establishment of a nexus is the Veteran's own statements of pain since his in-service incident, one reference to "old" degenerative disc disease in a private medical opinion, and his ex-girlfriend's statements regarding the change in the Veteran's life after his in-service incident. The private medical opinion is not probative because it does not further expound on the etiology of the degenerative disc disease beyond labeling it as "old, " especially in light of the overwhelming evidence of the Veteran's admission and record evidence indicating strenuous jobs for the past 25 years, with work related accidents as well as an automobile accident happening over that time. The Veteran was discharged from active duty with no back complaints or findings. While he is competent to report pain since that time, he is not credible. As noted, on more than one occasion, including at Sioux Falls Physical Medicine following his work related fall in 2003, the Veteran did not mention any in-service incident and subsequent pain to either a doctor or chiropractor when asked about his medical history. Similarly, the statement of the Veteran's ex-girlfriend is not credible. It is the only instance of support for the Veteran's pain complaints immediately surrounding his in-service incident and is contradicted by the Veteran's own pre-discharge examination account. The June 2004 VA examination is highly probative. The examiner reviewed the entirety of the Veteran's claims file. The examiner concluded that the in-service fall was less than likely the contributory factor of the Veteran's current condition, believing that the car accident and work-related injuries were more than likely the contributory factors. He also pointed out two periods of time when the Veteran did not seek medical attention: from 1984 to 1992 and from 1998 to 2003, which contradicts the Veteran's claims of chronic back pain since his in-service incident. While the Veteran is competent to discuss his in-service incident and his pain, he cannot by himself establish a medical etiology of his degenerative disc disease. As the Board concludes that the VA examination outweighs the evidence presented in the Veteran's favor, a nexus has not been established linking his current disability to his in-service injury. Because the preponderance of the evidence is against the establishment of a nexus between the Veteran's degenerative disk disease and his in-service back injury, the Veteran's service connection claim is denied. ORDER New and material evidence having been received; the Veteran's claim for service connection for degenerative disc disease with left sided stenosis is reopened. Entitlement to service connection for degenerative disc disease with left sided stenosis is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs