Citation Nr: 1334619 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-33 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active service from June 1968 to June 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran's appeal was previously before it in January 2012. At that time, it was noted that the RO had considered the issue of service connection for a back disorder on the merits; however, a claim of service connection for a back disorder was previously denied in a September 1983 rating decision. The Board acknowledged that the Veteran's current contention is that he has a low back disorder as the result of in-service injury to the feet but found that this did not constitute a new claim but rather a claim to reopen the previously denied claim based on a new theory of entitlement, citing Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005); Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307, 312-13 (2006). The Board, therefore, recharacterized the matter as an application to reopen. Furthermore, in January 2012, the Board remanded this claim to the Appeals Management Center (AMC) for additional notice and development. At this time, the Board finds that the AMC has substantially complied with the prior remand; therefore, the Board may proceed with adjudicating the Veteran's claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. The RO denied service connection for a back disorder in a September 1983 rating decision. The Veteran did not appeal that decision, and it is final. 2. None of the new evidence received subsequent to September 1983 in support of the Veteran's claim for service connection for a back disorder is material. CONCLUSIONS OF LAW 1. The September 1983 RO rating decision that denied service connection for a back disorder is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. § 3.160(d), 20.201, 20.302 (2013). 2. New and material evidence has not been received, and the Veteran's claim for service connection for a back disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Where a Veteran seeks to reopen a previously denied claim, the notice must inform the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Notice that complies with the requirements in Kent was provided to the Veteran in January 2012 and his claim was readjudicated in February 2012. Mayfield, 444 F.3d at 1333. The duty to assist has also been met. All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the veteran of any evidence that could not be obtained. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. Generally the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim; however, in a claim to reopen VA is not obligated to provide a medical examination or obtain a medical opinion until new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). Since the Veteran has failed to submit new and material evidence to reopen his claim for service connection for a back disorder, VA was not obligated to provide him with a medical examination. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection for a back disorder was last denied by the RO in a rating decision issued in September 1983. Rating actions are final and binding based on evidence on file at the time the veteran 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 a RO decision to initiate an appeal by filing a Notice of Disagreement with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c). The Veteran did not at any time indicate disagreement with this rating decision. Therefore, it is final. 38 U.S.C.A. § 7105. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "New" evidence is defined as evidence not previously submitted to agency decision makers and "material" evidence is 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 final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The evidence received subsequent to the last final rating decision, September 1983 in the present case, is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and 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. The Veteran's claim for service connection for a back disorder was previously denied in September 1983 because service treatment records were negative for treatment or complaints relating to the back and there was no evidence that the Veteran had a back disorder that was incurred in or aggravated by his military service. New evidence received since September 1983 consists of the Veteran's statements; private treatment records from 2002, 2003 and 2006; and VA treatment records from 1996 and 2006 to 2011. In an August 2006 statement, the Veteran claimed that he has a service-related left foot disability that has caused damage to his right foot and knee and also is causing "severe pain to my lower back." In May 2007, during a telephone conversation with the Veteran, the issues he raised were clarified to include that he was seeking secondary service connection for a low back disorder due to bilateral arthritis of the feet. In his Notice of Disagreement dated in December 2007, the Veteran stated that his "lower back condition ... is a result of left foot fracture sustained at the same time that I was wounded." In contrast, on his VA Form 9 submitted in October 2008, the Veteran stated that his "lower back condition is a result of jumping from approximately 3 feet from helicopters on slopes and uneven terrain. Mostly my left foot fracture has caused me lower back problems." Yet again, in a May 2010 statement, the Veteran stated that the "[i]ssue of lower back condition as secondary to bilateral foot arthritis as a result of RPG grenade which caused me to be thrown into midair sustaining trauma to my bilateral feet with arthritis. This caused me to sustain trauma to whole body." A review of the service treatment records demonstrates the Veteran received treatment in April 1969 for an injury to his left shoulder secondary to an RPG round. There is no indication that the Veteran sustained an injury to either his feet or his low back. Separation examination reports from June 1970 fail to demonstrate any report of history of back or feet trouble or a finding of any back or feet disorder. VA examination report dated in June 1983 only shows the Veteran complained of upper back pain due to shrapnel embedded in left shoulder but no complaints of low back pain or problems with his feet related to the same incident in which he sustained the shrapnel wound to the left shoulder. VA treatment record from August 1996 (which is noted to be mostly illegible) appears to show complaints of painful joints for 15 years and an impression of polyarthralgias. Private treatment records from 2002 to 2003 demonstrate treatment for left ankle and right knee arthritis. Per the Veteran's report, his left ankle pain resulted from a broken left foot that was occurred in February 2001 when he stepped on a lump of coal while getting off a rail care while at work. None of these private treatment records show the Veteran complained of pain or any other problem with his back, especially his low back; nor is there any diagnosis of a back disorder shown. A November 2006 RRB (Rail Road Board) Claimant Medical History report shows the Veteran reported disability due to left foot deformity and osteoarthritis right knee. The onset of the left foot pain was reported by the Veteran as "since Feb 2001." The Veteran further reported that he was "unable to walk or stand starting to have back pain due to uneven stride when walking because of pain." VA treatment records fail to show any complaints of, treatment for or diagnosis of a low back disorder. The Veteran's problem list does not contain any diagnosis of a low back disorder. The only complaints of back pain seen are in May 2010 when the Veteran presented with complaints of "sudden right shoulder/upper back quadrant pain, sudden onset x 1 month." However, on a review of systems, his physician noted he reported right upper extremity paresthesias associated with positional changes, i.e., sleeping on the right side, which was self limited and resolved spontaneously. Furthermore, with regard to the Veteran's left foot arthritis, the VA treatment records show the Veteran consistently reported this was related to a work injury received in February 2001. After considering all the evidence of record, the Board finds that none of the new evidence is material to reopening the Veteran's claim for service connection for a back disorder because it fails to raise a reasonable possibility of substantiating the claim. In so far as the Veteran alleges that he has a current low back disorder as a result of bilateral arthritis of the feet that is related to service, service connection for bilateral foot arthritis, as well as for left foot fracture, was denied by the RO in the November 2007 rating decision, which is the subject of this appeal. The Veteran, however, did not appeal the denial of service connection for those disabilities and that decision is final. Consequently, service connection for bilateral foot arthritis or for fracture of the left foot has not been established. Thus any statements or evidence tending to show that the Veteran's claimed low back disorder is secondary thereto are not material because, as a matter of law, service connection based upon secondary basis cannot be granted. Thus, any such evidence would not be material to reopen the Veteran's claim for service connection for a back disorder. In addition, in so far as the Veteran claims he has a current low back disorder, the medical evidence is silent for complaints of, treatment for or a diagnosis of a current low back disorder, much less that such a condition is the result of injury in service. Consequently, the private and VA treatment records are not material evidence to reopen the claim. Furthermore, the Veteran's statements alone are not sufficient to establish the presence of a current disability. Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay evidence is considered competent and sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Most of the Veteran's statements, however, are bare allegations that he has a current low back disorder. Although he has stated once or twice that he has low back pain, 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. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, even though he is competent to relate features or symptoms within his personal knowledge, he is not competent to provide a diagnosis nor is he competent to identify the medical condition causing his symptoms. In addition, at this point, the record only indicates he has low back pain, which is not a sufficient description of his symptoms that a diagnosis may be provided by a medical professional. Finally, the Veteran has not reported a contemporaneous medical diagnosis but has only stated he has a low back condition or low back pain. Finally, in so far as the Veteran's statements relate his claimed low back disorder to an incident in service, the Board finds that these statements are incredible given that the evidence fails to demonstrate any injury in service to the Veteran's low back or that he even has a low back disorder now. The Board further finds his statements incredible given that he states that he fractured his feet (or at least the left foot) in service; however, the evidence of record clearly demonstrates that there was no treatment in service for any fracture or injury to either foot and the Veteran has consistently reported to his treating physicians, both VA and private, that he fractured his left foot in a work-related injury in February 2001, and that evidence of arthritis in the ankle did not appear until after this injury occurred. Consequently, the Board finds that the Veteran has failed to submit evidence showing he has a current low back disorder that may be related to service or to a service-connected disability thereby triggering VA's duty to assist the Veteran by providing him with a VA examination. Since the new evidence does not contain competent lay or medical evidence of a current disability much less an indication that the claimed disability or symptoms may be associated to any event, injury or disease incurred in service, VA examination is not warranted. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence is not material as it does not raise the reasonable possibility of substantiating the claim, nor does it raise the possibility of further development that might tend to substantiate the claim. The threshold for reopening a claim is low, but it is a threshold nonetheless. Shade, 24 Vet. App. at 110. The Veteran's claim to reopen for service connection for a back disorder must be denied. ORDER New and material evidence has not been received, and the Veteran's claim to reopen for service connection for a back disorder is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs