Citation Nr: 1333996 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-26 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to December 1977. This matter is on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the appeal is currently with the RO in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge in January 2011. A transcript of the hearing is of record. FINDINGS OF FACT 1. A January 1995 rating decision denied service connection for a lumbar spine disability. 2. An October 2008 rating decision, the RO denied the Veteran's application to reopen a claim of entitlement to service connection for a lumbar spine disability. 3. The evidence added to the record since the October 2008 decision became final, when viewed by itself or in the context of the entire record, does not relate to an unestablished fact that is necessary to substantiate the claim of service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied service connection for a lumbar spine disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The evidence received subsequent to the October 2008 rating decision is not new and material, and the requirements to reopen the claim of entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in July 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. There are additional notice requirements for claims to reopen based on submission of new and material evidence, such as notifying a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the July 2009 letter adequately described the basis of the last final denial of the claim, and informed him of what evidence is required in order to reopen it. Therefore, adequate notice was provided to the Veteran prior to the initial adjudication of his claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA also has a duty to assist a Veteran in the development of a claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service medical records and VA outpatient treatment records. Further, the RO has obtained the treatment records that the Veteran identified as relevant to his claim. He has also submitted statements in support of his claim. A VA examination with respect to the issue on appeal was also obtained in March 2010. 38 C.F.R. § 3.159(c)(4) (2012). The Board notes that VA need not conduct an examination with respect to the claim of whether new and material evidence has been received to reopen previously denied claim because the duty to assist applies to a claim to reopen only if new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4) (2012); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). However, when VA undertakes to provide a VA examination, it must nevertheless ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds that the VA examination obtained is more than adequate. It is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Prior decisions of the Board and the RO are final and may be reopened only upon receipt of additional evidence which is both new and material. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002). In order for evidence to be sufficient to reopen a previously disallowed 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). If it is determined that new and material evidence has been submitted, the claim must be reopened. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is 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. However, 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) (2012). If VA finds that the submitted evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, it should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any will be evaluated to determine whether that evidence is new and material. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is presumed unless it is patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran originally submitted a claim seeking service connection for a low back disability in February 1995, which was denied by the RO in July 1995. At that time, the RO recognized that he complained of low back pain and radiating pain in the lower extremities while on active duty. However, it was also noted that his discharge examination was normal, and that there were no further complaints until 1985, where he stated that he injured his back in a post-service work-related incident. Therefore, the RO concluded that his complaints of back pain in service were not representative of a chronic disorder, and that his current complaints were not related to his active duty complaints. The Veteran submitted an application to reopen his previously denied claim in May 2008. In an October 2008 rating decision, the RO again denied that claim on the basis that none of the evidence submitted since the July 1995 decision was both new and material, as none of it indicated that his current spine disorder was related to service. He did not appeal that decision, nor did he submit any new and material evidence within a year of the October 2008 rating decision. Buie v. Shinseki, 24 Vet. App. 242 (2011). That represents the last final denial of the claim. The evidence of record prior to the last final denial of the claim included the Veteran's service medical records, and National Guard physical examinations from 1983, 1987, and 1991. The evidence also included private treatment records from 1985 and 1986 which detailed the surgical procedures he underwent to the spine, and additional private treatment records from 1991 and 1992, which detailed an exacerbation of his prior lumbar spine injury. The evidence added since the last final denial of the claim includes VA treatment records from 2008 and 2009, a radiographic imaging report of the lumbar spine from May 2009, and a VA examination in March 2010. While the Veteran listed in May 2009 locations where he received private treatment, those records were previously acquired and were reviewed prior to the last final denial of the claim. After a review of the evidence submitted since the last final denial of the claim, the Board determines that none of it is both new and material, and reopening the claim is not warranted. First, regarding the VA treatment records, the Veteran first sought treatment from a VA facility in April 2009. On that occasion, he stated that he injured his back while working at a service station, and received some sort of legal settlement to compensate for his injuries. Far from any assertion that his spine disorder was related to service, he appears to explicitly state that it was due to a post-service incident. Moreover, while he complained of back pain in June 2009, there was no indication that any back disorder was related to service, nor was there any indication of such a relationship in the radiographic imaging report from May 2009. Finally, the remaining VA treatment records do not address his lumbar spine complaints. Thus, while that evidence is new in that it was not of record prior to the last final denial of the claim, it is not material, as it does not relate to an unestablished fact necessary to support entitlement to service connection. Next, the Veteran underwent a VA examination in March 2010 that was specifically directed toward his lumbar spine complaints. While that examination was very thorough, none of the information in the examination report creates a reasonable possibility of an allowance of the claim. Specifically, while the Veteran stated that he continued to experience back pain, and took hydrocodone to reduce it, the examiner noted that the Veteran was treated for a pulled muscle in service, but that a National Guard examination in 1983 was normal. After reviewing the Veteran's claims file and conducting a thorough examination, the examiner opined that it was less likely than not that the Veteran's lumbar spine disorder was related to his complaints in service. In providing that opinion, the examiner noted that the Veteran was examined on only one occasion while on active duty and, according to subsequent treatment records, he appeared to do well until he experienced an on the job injury in 1985. It was only after that injury that he underwent surgery. The VA examination is very thorough and comprehensively reviews the prior evidence and the current extent of the Veteran's lumbar spine disorder. However, while that evidence is new in that it was not of record prior to the last final denial of the claim, it is not material, as it does not relate to an unestablished fact necessary to support entitlement to service connection, nor does it create a reasonable possibility of substantiating the claim were the claim to be reopened. In fact, not only does the evidence not support a relationship, the examiner specifically opined that it was less likely that any relationship to service existed. The Veteran did not assert that his symptoms had existed since service on that occasion. Therefore, there is no basis to reopen the claim based on the findings of the VA examiner. The Board has also considered the Veteran's continued statements that his current lumbar spine disability is related to service. However, those claims are duplicative of the statements already included in the claims file and considered in the prior final decisions. Therefore, those statements are not new, but are merely recitations of the statements the Veteran previously made, and are redundant. Reid v. Derwinski, 2 Vet. App. 312 (1992). Therefore, the Veteran's statements are not new and material evidence. The Board concludes that new and material evidence has not been submitted to reopen a claim of entitlement to service connection for a lumbar spine disability, and the application to reopen the claim is denied. ORDER New and material evidence having not been submitted to reopen a claim of entitlement to service connection for a lumbar spine disorder, and the claim remains denied. ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs