Citation Nr: 1329207 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-07 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a back condition. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a cervical spine condition (neck condition). 3. Entitlement to service connection for an acquired psychiatric condition, to include anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1976 to August 1979. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The issues of entitlement to service connection for back and neck conditions were previously denied in a September 2007 statement of the case. The Veteran did not timely file new evidence or a substantive appeal, so the decision is now final. The Veteran filed his current claim in October 2008. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The RO denied the Veteran's claims for entitlement to service connection for back and neck conditions in a September 2007 statement of the case. The Veteran was notified of the decision, but did not timely file new evidence or a substantive appeal. 2. Evidence obtained since the time of the September 2007 statement of the case does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for the Veteran's back or neck conditions. 3. The evidence does not establish the Veteran's current psychiatric condition, to include depression and anxiety disorders, either began during, or were otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The September 2007 statement of the case which denied entitlement to service connection for the Veteran's back condition is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). 2. The September 2007 statement of the case which denied entitlement to service connection for the Veteran's neck condition is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). 3. The criteria for service connection for an acquired psychiatric condition, to include anxiety, have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran's previous claims for entitlement to service connection for back and neck conditions were denied by a September 2007 statement of the case. The Veteran did not timely file new evidence or a substantive appeal within 60 days and the decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented to reopen the claim. At the time of the September 2007 statement of the case the evidence included service treatment records, VA treatment records from December 2005 to February 2006, and private treatment records from Dr. C.C. for November 2004 through 2005, Advanced Radiology from June 2006, Dr. Olin from September 2006, and Open MRI from November 2006. In October 2008 the Veteran sought to reopen his previously denied claims. Considerable additional evidence has been presented in conjunction with the claim to reopen, including updated VA treatment records from July 2007 through October 2009, the report from a VA joint examination in September 2008, and additional statements from the Veteran and his representative. Additionally, the Veteran submitted a private record from Open MRI in October 2006 directly to the Board, and waived consideration by the agency of original jurisdiction. As such, the Board finds this additional private treatment record may be properly considered by the Board. The Board finds the evidence summarized above was not previously submitted to the VA before the RO's September 2007 decision. This evidence is therefore "new." The Board will now turn to a discussion of whether this evidence is "material" in each of the Veteran's claims in turn. The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decisionmakers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court explained this standard is intended to be a low threshold. Id. Additionally, evidence is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Back Although the Veteran has submitted new evidence pertaining to his back condition since the September 2007 statement of the case, as discussed below the Board does not find this new evidence to be material. In the September 2007 statement of the case the RO found that although the evidence established the Veteran currently had moderate degenerative disc disease of his lumbar spine, the evidence did not establish the Veteran's current condition was incurred in or caused by his military service. The RO explained service treatment records fail to show any complaint of or treatment for a back condition during service. Post-service treatment records do not show degenerative disc disease until 2006, nearly thirty years after the Veteran separated from military service and after a post-service work-related injury. The Board finds the Veteran's newly submitted evidence continues to reflect the Veteran has moderate degenerative disc disease in his lumbar spine. However, the Veteran's claim was not previously denied for failure to establish he currently has a disability. Rather, his claim was denied for failure to establish his current back condition began during, or was otherwise caused by, his military service. The Board finds the newly submitted medical evidence does not include any opinion relating the Veteran's back condition to his military service. Therefore the new medical evidence is not material. The Board notes in his November 2011 written statement the Veteran asserted that he had scoliosis and fusion of his back, spine, and neck before entering military service. He alleged these conditions caused difficulties during his military service, including being held back for two weeks of retraining during basic training. The Board notes that the service treatment records do not support the Veteran's contentions, as he is noted to have normal spine at both entrance and separation examinations. However, even if presumed credible the Veteran's lay assertions would at best establish he had a back condition of scoliosis which pre- existed his military service. However, the medical evidence does not establish the Veteran currently has scoliosis of his back. Additionally, the Veteran's lay assertions do not suggest his currently diagnosed back condition of degenerative disc disease of the lumbar spine began during, or was otherwise caused by, his military service. Therefore, the Board finds the Veteran's lay assertions do not address the reason the Veteran's claim was denied, that is whether his currently diagnosed lumbar degenerative disc disease is related to his military service. Simply stated, the new evidence does not associate the current back condition with the Veteran's military service in the 1970's. Based on the foregoing, the Board finds the new evidence does not establish that the Veteran's currently diagnosed back condition began during, or was otherwise caused by, his military service. As such, the Board finds the newly submitted evidence is not material. Because the Veteran has not submitted new and material evidence regarding his currently diagnosed lumbar degenerative disc disease, the Board finds the Veteran's claim for service connection for a back condition is not reopened and remains denied. Neck The Board also finds that although the Veteran has submitted new evidence pertaining to his neck condition since the September 2007 statement of the case this new evidence is not material. In the September 2007 statement of the case the RO denied the Veteran's claim for service connection for a neck condition. The RO noted that the Veteran did complain of stiff neck for two days during military service and was diagnosed with muscle sprain. However, the RO found this condition was not chronic and the July 1979 separation examination noted normal neck condition. The RO continued that post-service records established the Veteran had a work-related injury in November 2004 (many years after service). The RO found all post-service treatment notes found the Veteran's neck condition was related to his post-service job injury and not his military service, and denied the Veteran's claim for service- connection. The Board finds the Veteran's newly submitted evidence continues to reflect the Veteran currently has a chronic neck condition. However, as above, the Veteran's claim was not previously denied for failure to establish he currently has a disability. Rather, his claim was denied for failure to establish his current neck condition began during, or was otherwise caused by, his military service. The Board finds that none of the newly submitted medical evidence serves to relate the Veteran's neck condition to his military service. Therefore, the newly submitted medical evidence is not "material." In his November 2011 written statement the Veteran asserted that his neck problems continued to get worse since his exit from active duty. While this specific document written by the Veteran had not previously been submitted to the VA, the Board finds the Veteran had made similar assertions in his original claim for service connection. In the September 2007 statement of the case the RO previously contemplated the Veteran's assertions of continuity of symptomatology since military service, but found the Veteran's assertions were not supported by competent evidence. As such, the Veteran's lay allegations that his neck pain continued since military service have already been considered by the RO in previous determinations (it is not a "new" contention). Therefore this lay assertion by the Veteran is not "new" evidence. The new evidence does not relate the Veteran's neck disability to his military service in the 1970's. Based on the foregoing, the Board finds the Veteran has not submitted any new and material evidence which relates to the previously unestablished fact that his current neck condition began during, or was otherwise cause by, his military service. As such, the evidence submitted since September 2007 is not material and does not reasonable result in substantiation of the claim under Shade. The Veteran's claim for service connection for a neck disability is therefore not reopened and remains denied. Service Connection for Acquired Psychiatric Condition The Veteran is also seeking service connection for an acquired psychiatric condition, to include anxiety. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The medical evidence does establish the Veteran currently has a psychiatric condition. The record reflects he has been alternatively diagnosed with anxiety disorder and depression disorder, as well as received treatment for abuse of alcohol and cannabis, as well as pathological gambling. However, as will be discussed, the Board does not find the Veteran's currently diagnosed psychiatric condition is related to the Veteran's military service. Service treatment records were reviewed and do not establish the Veteran made any complaint of, or received any treatment for, any psychiatric condition during military service. At his July 1979 separation examination the Veteran's psychiatric condition was noted to be normal. In the accompanying report of medical history the Veteran denied ever being treated for a mental health condition. Therefore, the Board finds the evidence does not establish the Veteran was treated for a psychiatric condition during his military service, providing some evidence against this claim. The medical records also fail to establish the Veteran developed a psychiatric condition shortly after his military service. Instead, the earliest psychiatric treatment records are from 2001, over twenty years after the Veteran separated from military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). More persuasively, the Veteran filed separate claims for service connection during this interim period, including claims for service connection for hearing loss and a knee condition filed less than a year after he separated from military service. However, the Veteran made no mention of any psychiatric condition at that time. The filing for service connection of other complaints soon after service establishes that the Veteran was aware of VA and the process for filing disability claims for service connection, and the failure to seek service connection for psychiatric condition weighs against the conclusion that he was experiencing a psychiatric condition at that time. Instead, the Veteran did not file the current claim until 2008. Therefore, the Board finds the Veteran's failure to file a claim for service connection for a psychiatric condition or seek medical treatment for at least twenty years after he separated from service probative, providing some limited evidence against his own claim that he has had this problem since service. Finally, the Board notes that the medical evidence of record does not otherwise relate the Veteran's currently diagnosed psychiatric condition to his military service. The record does not include the medical opinion of any professional relating the Veteran's psychiatric condition to his military service. Instead, when a VA medical care provider asked the Veteran to identify the stressors for his current psychiatric condition in August 2009 the Veteran listed homelessness, bankruptcy, financial stressors, child support, and custody issues. The Veteran notably did not list his previous military service as a stressor. Therefore, the Board finds the medical evidence of record does not relate the Veteran's current anxiety and depressive disorders to his military service, including statements made by the Veteran himself during medical treatment. Based on all of the foregoing the Board finds the evidence does not establish the Veteran's currently diagnosed psychiatric conditions, including depressive and anxiety disorders, are related to his military service. Service treatment records do not establish the Veteran had any psychiatric condition during military service, and the evidence does not establish the Veteran sought treatment or benefits for any psychiatric condition until more than twenty years after separating from military service. Finally, the medical evidence, including statements made by the Veteran during the course of treatment, does not otherwise relate his current psychiatric condition to his military service. Therefore the Veteran's claim for service-connection for a psychiatric condition is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). With regards to the claims for service connection for neck and back conditions, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him 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. In the present case, required notice was provided by letters dated in August and October 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Both letters also informed the Veteran how disability ratings and effective dates were established. The October 2008 letter provided the notice required by Kent for the Veteran's claims for neck and back conditions. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Board notes that the Veteran was not provided a VA examination regarding any of the three claims discussed above. However, as will be discussed the Board finds no VA examination was required in any of these claims. The Board will first address the Veteran's claims to reopen service connection for back and neck conditions. VA regulations provide that no VA examination is required unless new and material evidence is presented to reopen a previously adjudicated claim. 38 U.S.C.A. § 5103A(d)(1, 2); 38 C.F.R. § 3.159(c)(4); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Because the Board found the Veteran did not submit new and material evidence in either of these claims the claims were not reopened and no examinations were required. In regards to the Veteran's claim for service connection for a psychiatric condition, the Board notes an examination is not always required to satisfy the duty to assist. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Although the evidence establishes the Veteran has a current psychiatric disability, as discussed above the record does not contain any probative evidence indicating his current disability may be related to his military service. As such, the requirements of McLendon were not met and no VA examination was required. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER New and material evidence has not been presented to reopen a claim for entitlement to service connection for the Veteran's back condition, the claim is not reopened, and the appeal is denied. New and material evidence has not been presented to reopen a claim for entitlement to service connection for the Veteran's neck condition, the claim is not reopened, and the appeal is denied. The Veteran's claim for service connection for an acquired psychiatric condition is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs