Citation Nr: 1334275 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-45 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a sinus disorder. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to service connection for a bilateral knee disability. 6. Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Lori Chism, Esq. ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from March 1986 to March 1990. This case comes before the Board the Veteran's Appeals (Board) on appeal of a July 2009 and an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it (there is no increased rating issue before the Board), and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (2002). FINDINGS OF FACT 1. The Veteran's claim of service connection for a back disability was most recently denied by an April 1991 rating decision. The Veteran did not file an appeal; thus, the rating decision became final. 2. Evidence received since the April 1991 rating decision with respect to a back disability is new and material and does raise a reasonable possibility of substantiating the Veteran's claim of service connection for a back disability. 3. The Veteran's claim of service connection for a sinus disorder was most recently denied by an April 1991 rating decision. The Veteran did not file an appeal; thus, the rating decision became final. 4. No new and material evidence has been received since the April 1991 rating decision with respect to a sinus disorder. 5. The Veteran has been diagnosed with a chronic back disability. 6. The Veteran has not been diagnosed with a chronic left shoulder disability at any point during the appeal period. 7. The Veteran has not been diagnosed with a chronic bilateral knee disability at any point during the appeal period. 8. The Veteran has not been diagnosed with a chronic right leg disability at any point during the appeal period. CONCLUSIONS OF LAW 1. The April 1991 RO rating decision denying the Veteran's claim of entitlement to service connection for a back disability and a sinus disorder is final. 38 U.S.C.A. § 7266 (2002); 38 C.F.R. §§ 3.104(a), 3.160(d) (2012). 2. The criteria for reopening the claim of service connection for a back disability have been met. 38 U.S.C.A. § 5108 (2002); 38 C.F.R. § 3.156 (2012). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for a sinus disorder. 38 U.S.C.A. § 5108 (2002); 38 C.F.R. § 3.156 (2012). 4. The criteria for service connection for a back disability have been met. 38 U.S.C.A. § 1131 (2002); 38 C.F.R. § 3.303 (2012). 5. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. § 1131 (2002); 38 C.F.R. § 3.303 (2012). 6. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. § 1131 (2002); 38 C.F.R. § 3.303 (2012). 7. The criteria for service connection for a right leg disability have not been met. 38 U.S.C.A. § 1131 (2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material In an April 1991 rating decision, the RO denied the Veteran's initial claim of service connection for a back disorder and a sinus disorder. At the time, the RO considered service treatment and medical records in forming their decision. The RO determined that the Veteran had a preexisting back disability and that the disability was not aggravated by service and denied service connection for a back disability. Further, the RO acknowledged that the Veteran was treated for respiratory related symptoms during service, but noted that there was no record of recurrence or complications during the rest of service and there was no evidence of a residual disability upon separation from service. The Veteran was notified of his appellate rights in the April 1991 rating decision and he did not initiate an appeal. The decision is final. 38 U.S.C.A. § 7266; 38 C.F.R. §§ 20.302, 20.1103. Moreover, during the one-year period following the RO decision, no new and material evidence was received requiring readjudication of the claim. See Bond v. Shinseki, 659 F.3d 1362 (2011). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a); 38 U.S.C.A. § 5108; see also Kightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A. Back Disability The newly submitted evidence submitted by the Veteran are medical journal articles related to his condition. These articles discuss the prospect that it is possible, though not commonly recognized, that lumbar and thoracoscoliosis can progress during adulthood. See L. Rillardon and P. Guigui, Spinal Deformity in the Adult, Presse Med (November 27, 2009), http://www.ncbi.nlm.nih.gov/pubmed/10605482. An additional article submitted discusses how adult onset spinal deformities are present with pain and neurological symptoms compared to adolescents and that treatment of adult spinal deformity differs substantially from that of adolescents. See Robert F. Heary, Evaluation and Treatment of Adult Spinal Deformity, J Neurosurg Spine (July 2004), http://www.ncbi.nlm.nih.gov/pubmed/15291014. The evidence submitted since the April 1991 rating decision is new and material evidence. The evidence submitted by the Veteran is "new" because it had not been previously submitted to VA for consideration. The evidence is material because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. Specifically, the evidence, presumed credible, addresses whether the Veteran has adult onset scoliosis that was first diagnosed in service. Justus, 3 Vet. App. at 513 (1992). Thus, the Board finds that the medical journal articles (which were not before the RO many years ago) are new and material with respect to the issue of service connection for a back disability. This evidence is not cumulative of prior records because it provides evidence that it is possible that the Veteran's condition began during service. The new evidence, presumed credible for the purposes of reopening, is therefore relevant and probative and raises a reasonable possibility of substantiating the Veteran's claim for service connection. Consequently, the request to reopen his previously denied claim of entitlement to service connection for a back disability is granted. 38 C.F.R. § 3.156(a). B. Sinus Disorder Service connection for a sinus disorder was denied by an April 1991 rating decision. The RO determined that the Veteran's sinus disorder was not caused or aggravated by his active service because "service medical records show treatment for respiratory problems during June, 1987 and sinusitis during May, 1987. However, there is no record of recurrence or complication during the rest of your service and no residual disability was indicated on your service examination of February 17, 1989." See April 1991 Rating Decision. During the appeal period, the Veteran has not submitted any evidence to support the reopening of his service connection claim. In fact, the Veteran has not even provided an additional argument in support of his claim for service connection in conjunction with application to reopen. Without submission of new and material evidence, reopening the Veteran's claim of service connection for a sinus disorder is not warranted. II. Service Connection Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000). 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 exist which does not satisfactorily prove or disprove the claim. See U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 (2012). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity symptomatology." Savage, 10 Vet. App. at 496. A. Back Disability The Veteran asserts entitlement to service connection for a low back disability as directly related to his period of active service. Specifically, he contends that he was diagnosed with a back disability in service, and has suffered from a back disability since. The last most recent denial of the Veteran's service connection claim for a back disability was in April 1991. At the time, the RO determined the Veteran was not entitled to service connection for his back disability because, "service records show that your back condition existed before you entered military service. Nothing occurred in service to cause permanent aggravation of that disability." See April 1991 Rating Decision. However, upon closer review of the Veteran's entrance examinations into military service, the Veteran's spine and musculoskeletal system was noted as normal upon clinical evaluation. See March 1985 Report of Medical Examination. Further, the Veteran reported on his report of medical history that he had no recurrent back pain. See March 1985 Report of Medical History. This evidence leads the Board to conclude that the Veteran's back disability was not noted prior to entering active military service. Therefore, as a result, the Veteran is presumed sound upon entering military service and the RO failed to establish that there was clear and unmistakable evidence to rebut the presumption of soundness at entrance. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.304(b) (2012). Further, and perhaps more importantly in this case, even if the Board assumes that the Veteran's case clearly and unmistakably existed prior to service (scoliosis would not simply begin during service, as the Veteran appears to suggest, and the Veteran's own statement during service would seem to support the finding that he had some problem prior to service), but was simply not detected until the Veteran entered service, the VA would still have to rebut the presumption that this condition was not aggravated by service. In this case, the presumption of aggravation is important. A preexisting disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a preexisting condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the preexisting condition increased in severity during service, pursuant to 38 C.F.R. § 3.306. See VAOPGCPREC 3-2003 (July 16, 2003). In addition, the usual effects of medical and surgical treatment in service, provided to ameliorate a preexisting condition, will not be considered service connected unless the disorder is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). A review of the Veteran's service treatment records indicate that the Veteran was diagnosed with scoliosis in service. In February 1987, service treatment records note that the Veteran was seen for subjective complaints of pain in the upper back between the shoulder blades. It was during this examination that the Veteran told the examiner that a physician, during basic training, said that he had a curvature of the spine to the right and that people often notice that he leans forward and to the right. See February 1987 Service Treatment Records. In August 1988, service treatment records show that Veteran was diagnosed with scoliosis of the back with symptoms of muscle spasms and tenderness and was sent for an orthopedic examination. See August 1988 Service Treatment Records. In September 1988, the Veteran went back to seek treatment for his back pain. See September 1988 Service Treatment Records. The Veteran submitted several private treatment records showing that he has been seen frequently over the last six to seven years for back pain. See January 2006 Methodist Occupational Health Center Report; June 2008 Clarion Health Methodist Radiology Report; June 2008 Report from Dr. Robert Habig. The evidence provided shows that the Veteran's disability does not affect his ability to work but that he needs to receive injections for pain. See January 2006 Methodist Occupational Health Center Report. The Veteran submitted a radiology report showing that he is receiving treatment for his back and had a MRI of the lumbar spine. The impression from the MRI was that the Veteran suffered from a herniated disc at L5-S1 with moderate impingement of the right S1 nerve root. Additional evidence that the Veteran has submitted from Dr. Habig, indicates that he has been subjectively complaining of low back disability on a continuous basis for the last twenty years. Further, Dr. Habig. diagnosed the Veteran with pain in the lumbar region of his back. See June 2008 Report from Dr. Habig. A Veteran need only demonstrate that there is an approximate balance of positive and negative in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in "relative equipoise the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the instant case, even though the private physician, Dr. Habig, does not provide an etiological opinion creating a nexus between the Veteran's current symptomology and his active service, the Board observes that service connection may be established upon showing a continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Savage, 10 Vet. App. at 495-96. Furthermore, the Board observes that the Veteran reported back pain during service and following discharge from service and he filed his original claim within one year after separating from service, suggesting, that the back problem became worse during service. The Veteran is competent to report (1) symptoms observable to a layperson, e.g., back pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of continuity of symptomatology sufficient to establish service connection based on the private medical opinions submitted by the Veteran. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is competent to report back pain, and has indicated that he has suffered from back pain in service and since separation from service. Absent contradictory evidence of record, the Board finds the Veteran's statements credible. Based on the foregoing discussion, the Board finds the evidence of record to be at least in equipoise regarding service connection. As such, resolving all doubt in favor of the Veteran, the Board concludes that service connection for a back disability is warranted. The question of whether the herniated disc at L5-S1 with moderate impingement of the right S1 nerve root is connected to the now service connected back disability is not before the Board at this time. B. Left Shoulder, Bilateral Knee and Right Leg Disabilities The Veteran asserts entitlement to service connection for a left shoulder disability, bilateral knee disability and a right leg disability as directly related to his period of active service. See May 2008 VA Form 119. Significantly, there is no competent evidence of record to indicate that he has been diagnosed with any of the disabilities mentioned above at any point during the appeal period. See McCain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exist if the diagnosed disability is present at the time of the claim or during the pendency of that claim.) A review of the Veteran's service treatment records pertaining to his period of active service are void of any complaints, injury or treatment of the left shoulder, the knees or the right leg. Further, the Veteran waived his right to undergo a medical examination upon separation from service. See February 1990 Medical Examination for Separation Statement of Option. Additionally, the Veteran sought to re-enlist into the Naval Reserves and upon review on his report of medical examination for his upper extremities and lower extremities are noted as normal upon clinical evaluation. See December 1998 Report of Medical Examination, providing evidence against this claim. Lastly, on the Veteran's report of medical history, given upon his re-enlistment and signed by the Veteran, he stated that he did not have or had ever had swollen or painful joints, cramping of the legs or bone, joint or other deformity. See December 1998 Report of Medical History. The Board acknowledges the Veteran's current complaints of right leg pain. However, pain is not, in and of itself, a disability for the purposes of service connection. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted), appeal dismissed, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Veteran has not identified any competent medical records that may support a diagnosis of a left shoulder, a bilateral knee or a right leg disability at this time. Therefore, the Board has not basis to grant these claims. The available evidence, including the Veteran's own prior statements, would provide evidence against these claims. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a left shoulder disability, bilateral knee disability and a right leg disability are not warranted. Duties to Assist and Notify When VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Veteran received notification prior to the initial unfavorable agency decisions in July 2009 and October 2009. The Veteran received notification through the May 2008 and December 2008 notice letters sent by the RO. The Veteran's claim was subsequently readjudicated, most recently in an October 2010 supplemental statement of the case. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records have been associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. See 38 C.F.R. § 3.159(c)(4). The Board acknowledges that the Veteran has not been afforded an examination with respect to his claims, and an examination is not warranted. See 38 C.F.R. § 3.159(c)(4) (2012). VA has a duty to provide a VA examination when the record lacks evidence to decide the appellant's claim and there is evidence of (1) a current disability, (2) an in-service event, injury or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the probative record is silent for an in-service event, injury or disease related to the Veteran's claim of a left shoulder disability, bilateral knee disability and a left leg disability. The elements of McLendon have not been satisfied; therefore, VA is not required to obtain a VA medical opinion in conjunction with the instant claim. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. ORDER New and material evidence having been received, the claim of service connection for a back disability is reopened; to this extent only, the claim is granted. New and material evidence sufficient to reopen a claim for service connection for a sinus disorder has not been submitted; the appeal is denied. Service connection for a back disability is granted. Service connection for a left shoulder disability is denied. Service connection for a bilateral knee disability is denied. Service connection for a right leg disability is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs