Citation Nr: 1329819 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-08 498A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a chronic back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from December 1963 to January 1964. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which determined that new and material evidence had not been received so as to reopen a claim of entitlement to service connection for a chronic back disability. Thus, 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, as is reflected by the characterization of the claim on the title page. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). In October 2011, the Veteran requested a Board hearing before a Veterans Law Judge sitting at his local RO. That hearing was scheduled for July 2012 and documentation of record reflects that the Veteran contacted VA in May 2012 to cancel it. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of an August 2013 Appellant's Brief, presented by the Veteran's representative. FINDINGS OF FACT 1. In a final December 2001 rating decision, the RO determined that new and material evidence sufficient to reopen a claim of entitlement to service connection for a chronic back disability had not been received. 2. Evidence associated with the claims file since the December 2001 denial of the claim, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the previously denied claim for service connection at issue, and/or does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2001 decision in which the RO determined that new and material evidence sufficient to reopen a claim of entitlement to service connection for a chronic back disability had not been received is final. 38 U.S.C.A. § 7105 (West 1991) [(West 2002)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001) [(2012)]. 2. As evidence received since the December 2001 final rating decision is not new and material, the criteria for reopening the previously denied service connection claim for a chronic back disability are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 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); 38 C.F.R. § 3.159(b)(1). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (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 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. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2007 letter, sent prior to the initial unfavorable decision issued in April 2008, the AOJ advised the Veteran of the evidence and information necessary to substantiate his application to reopen his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Specifically, the Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the AOJ included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The letter also provided the definition of new and material evidence, the evidence and information necessary to substantiate the underlying service connection claim, and explained the reasons and bases for the prior denial of the claim. Specifically, the Veteran was advised that his claim was previously denied in a December 2001 rating decision because there was no evidence to show that his back condition was chronic in service, that a pre-existing condition was aggravated by service, or that a back disorder had been present from the date of discharge to the present. See Kent, supra. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the claim on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service VA and private treatment records were obtained. The file also contains private medical records and documents from the Social Security Administration. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board notes that the Veteran has not been provided with a VA examination in the instant case; however, the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(c)(1),(2) and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. As the Veteran's claim is not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with his appeal. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Background Historically, the RO denied an original service connection claim for a back condition in a September 1995 rating decision. In that decision the RO explained that, while the Veteran was seen for muscle strain and pain in service (January 1964), the January 1964 separation examination report was negative for abnormalities of the back/spine. In denying the claim, the RO concluded that the condition was acute and resolved with no residuals at separation. The September 1995 determination was appealed and in a decision issued in December 1997, the Board denied the claim. In that decision, the Board determined that evidence clearly and unmistakably reflected that the Veteran had a pre-existing back condition, caused by an injury sustained in January 1963 when he slipped at work falling 16 to 17 feet onto his back, for which he filed and won a worker's compensation claim. Also noted was evidence indicating that the Veteran sustained an acute back injury at work in early October 1968, following which he underwent a lumbar laminectomy at L4-L5. The Board decision also mentioned private medical records revealing that the Veteran injured his back again in March 1986, while lifting materials at his job as a roofer; following which in September 1986, he underwent L3-L4 laminectomy for removal of a large herniated disc. In April 2001, the Veteran filed an application to reopen the claim. In a rating action of December 2001, the RO determined that new and material evidence had not been received to reopen the claim. It was explained that new and material evidence in this case would relate to the material issue of whether a back condition, which existed prior to service, was made permanently worse by service. The RO indicated that the new evidence submitted for the file consisted of VA outpatient records dated in 1999, 2000, and 2001, about 35 years after the Veteran's discharge from service, indicating that the Veteran continued to be seen for complaints of chronic back pain, without any discussion of a relationship to service based on incurrence or aggravation. As will be discussed further herein, an appeal of such decision was not timely perfected and, therefore, the December 2001 rating decision is final. In July 2007, the Veteran filed to reopen the claim again. He stated that he injured his back prior to service while working for the railroad and opined that service had made the condition much worse, requiring numerous surgeries thereafter. Evidence added to the file since the April 2001 rating action includes VA medical reports from September 1998 to February 2003, describing the Veteran's symptoms and treatment, without pertinent reference to service. Private medical records of Dr. W. dated from May 1977 to January 2002, document on-going treatment for low back pain, without reference to service. The file also contains a January 1978 decision from the Ohio Bureau of Worker's Compensation as well as supporting records from Doctor's Hospital dated in 1976 and 1977, relating to a 1973 injury sustained at work, for which medical treatment was approved. Also added to the file was a lay statement of T.E.K. describing the Veteran's occupational pre-service injury of 1963. Also received were VA records dated from June 2006 to June 2011, documenting the Veteran's on-going treatment for back problems and mentioning a history of 6 back surgeries (October 2006), without reference to service incurrence or aggravation. In July 2011 records and a decision from the Social Security Administration (SSA) were received. Records reflect that the Veteran reported that a back condition first started bothering him in 1963. He indicated that he stopped working in 1991 and became unable to work in February 2006. The records contained no reference to service incurrence or aggravation. Analysis The Veteran seeks to reopen his claim of entitlement to service connection for a chronic back disability. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As indicated in the preceding section, the September 1995 rating decision that initially denied service connection for a back condition was timely appealed the Board and, in a December 1997 decision, the Board denied the Veteran's claim. As the Veteran did not appeal to the Court, such decision is final. Additionally, the December 2001 rating decision that determined that new and material evidence sufficient to reopen a claim of entitlement to service connection for a chronic back disability had not been received is final. In this regard, the Board notes that the Veteran was advised of his appellate rights in December 2001. Thereafter, he entered a notice of disagreement as to the decision in March 2002 and a statement of the case was issued in March 2003. However, the Veteran did not file a timely substantive appeal. In this regard, no further communication regarding his claim of entitlement to service connection for a back disability was received until July 2007, when VA received his application to reopen such claim. Therefore, the December 2001 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991) [(West 2002)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001) [(2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable. Specifically, while additional evidence consisting of VA and private treatment records were associated with the claims file subsequent to the December 2001 rating decision, such were considered in the March 2003 statement of the case. Moreover, such evidence is not new and material as it does not address a relationship between the Veteran's back disorder and his military service. Therefore, no new and material evidence pertaining to the Veteran's claim for service connection for a back disorder was received prior to the expiration of the appeal period stemming from the December 2001 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). In the rating action of December 2001, the RO determined that new and material evidence had not been presented to reopen the claim and explained that new and material evidence in this case would relate to the material issue of whether a back condition, which existed prior to service, was made permanently worse by service. Accordingly, the critical inquiry in this case involves whether new and material evidence relating to in-service/service-related aggravation, or even for the sake of completeness, incurrence of a low back condition, has been presented. Having reviewed the evidence in its entirety, particularly including that added to the record since the December 2001 rating action, the Board concludes that new and material evidence has not been presented and the claim may not be reopened. With respect to VA records dated from 1998 to 2011, this evidence merely describes the Veteran's on-going back symptoms and treatment, without pertinent reference to service. Private medical records of Dr. W. dated from May 1977 to January 2002, similarly document on-going treatment for back problems, without reference to service. In Morton v. Principi, 3 Vet. App. 508 (1992), the Court held that medical records merely describing the Veteran's current condition are not material to the issue of service connection and are not sufficient to reopen a claim for service connection based upon new and material evidence. In a related case, the Court held that medical evidence which merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of nexus evidence (i.e., a connection to a service-related event or condition), does not constitute new and material evidence. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994). Essentially, the aforementioned evidence added to the file since December 2001 is new, but it does not address or relate to the matter of evidence of service-related aggravation of a pre-existing back condition, or of service incurrence; and therefore, the evidence is not material. Evidence dated in the 1970's from Ohio Bureau of Worker's Compensation as well as supporting records from Doctor's Hospital dated in 1976 and 1977, relating to a specific injury of 1973 injury sustained at work, as well as SSA records contained no reference to service incurrence or aggravation, and as such while new, the evidence is not material. Also added to the file was a July 2007 lay statement of T.E.K. relating solely to the Veteran's occupational pre-service injury of January 1963. Again, while new, this evidence is immaterial to any events of service. In addition to the medical evidence discussed above, the Board has considered the written assertions of the Veteran (including his July 2007 statement), as well those advanced by his representative (August 2013 brief), on his behalf. However, no such evidence provides a basis to reopen the claim. In this regard, the Board points out that statements, like the Veteran's of July 2007, simply reemphasizing factual evidence already documented and his position and opinions previously considered in the prior final decision are not new or sufficient to reopen the claim. Reid v. Derwinski, 2 Vet. App. 312 (1992). To the extent that any new contentions and arguments have been raised since the December 2001 rating decision, the Board is mindful that the Court has held that presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence under 38 U.S.C. § 5108. See also Untalan v. Nicholson, 20 Vet. App. 467 (2006). As indicated, no additional, pertinent evidence has been presented. Under these circumstances, the Board concludes that the criteria for reopening the service connection claim for a chronic back disability are not met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received to reopen a claim of entitlement to service connection for a chronic back disability, the appeal is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs