Citation Nr: 1336048 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-12 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Roger W. Rutherford, Esq. ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2008, a statement was received from the Veteran indicating that he was continuing his appeal, which the Board construes as a notice of disagreement with the February 2008 rating decision. A report of contact in October 2013 confirms that the Veteran's attorney is continuing to represent him. Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed and considered. FINDINGS OF FACT 1. A June 1997 Board decision denied entitlement to service connection for a low back disability and entitlement to service connection for a neck disability based on the determination that the evidence did not show a causal relationship between the Veteran's present back and neck disabilities and active service. 2. The Veteran did not appeal the June 1997 Board decision. 3. Evidence received since the June 1997 Board decision is cumulative or redundant, and does not raise a reasonable possibility of substantiating the service connection claims for a low back disability or a neck disability. [Continued on next page] CONCLUSIONS OF LAW 1. The June 1997 Board decision, which denied the claims of service connection for a low back disability and service connection for a neck disability, became final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013). 2. Evidence received since the June 1997 Board decision is not new and material, and therefore the claims may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) held that with regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then send a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. Id. The RO provided a VCAA notice by letter dated in September 2007. The Veteran was notified that his claims had been previously denied, and that new and material evidence was needed to substantiate the claims to reopen, and described what would constitute such new and material evidence. The letter also specifically explained the bases of the prior denials on the merits, and directed the Veteran to submit any new and material evidence showing that his low back disability and neck disability were related to service. This letter was fully compliant with the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006). VA has fulfilled its duty to assist in obtaining identified and available evidence. Service treatment records, post-service treatment records, and lay statements have been associated with the record. In a November 2007 statement the Veteran requested a VA examination. VA does not have a duty to provide the Veteran with a VA examination if the claim is not reopened. The VCAA explicitly stated that, regardless of any assistance provided to the claimant, new and material evidence must still be submitted to reopen a claim. See 38 U.S.C.A. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). As discussed above, the RO complied with VA's notification requirements and informed the Veteran of the information and evidence needed to substantiate his claims to reopen. As no new and material evidence has been submitted in conjunction with the claims to reopen, an examination is not required. Thus, with respect to the Veteran's claims, there is no additional development that needs to be undertaken or evidence that needs to be obtained. Legal Criteria In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The Board originally denied entitlement to service connection for a low back disability and a neck disability in a June 1997 decision. The Veteran did not appeal the denials, and they became final. The bases for the Board's June 1997 denials were that the evidence of record did not show that the Veteran's current low back and neck disabilities were related to his military service. The Board specifically noted the only opinion of record on the etiology of the Veteran's current back disability was a December 1985 opinion by his private treating physician, Dr. L., who directly related the Veteran's current disability to a July 1984 motor vehicle accident, and not to the Veteran's reported injury in service. The Board found that notations by other treating physicians relating the Veteran's current back and neck disabilities to his service were based upon the Veteran's self-reported history, and that the Veteran did not possess the necessary expertise to offer opinions on the etiology of a condition. At the time of the final Board decision in June 1997, the following evidence was of record: (1) the Veteran's April 1993 informal claim of service connection for a back injury and a neck injury; (2) the Veteran's service treatment records, showing treatment in March 1977, January 1978, and March 1978 for back pain, and in March 1977 for neck pain, but no findings upon examination beyond the Veteran's subjective complaints, and normal findings upon the separation examination; (3) copies of some of the service treatment records submitted by the Veteran, in which he highlighted notations of complaints of pain; (4) an October 1985 statement in which the Veteran reported he received back and neck damage in a July 1984 motor vehicle accident; (5) the transcript of a January 1994 hearing before a decision review officer in which the Veteran testified to an in-service injury to his back while doing sit-ups, an in-service injury to his neck after hitting his head while on a ship, and to treatment by a company doctor for back pain within six months of separation, though the Veteran could not remember the doctor's name; (6) post-service private treatment records including treatment for complaints of back and neck pain and back surgery in October 1985, a December 1985 progress note by Dr. L. directly relating the Veteran's current back disability to the 1984 motor vehicle accident and not any in-service injuries, and various reports by the Veteran relating the pain to service and/or the July 1984 motor vehicle accident; and (7) VA treatment records dated August 1993 through January 1994 showing a December 1993 diagnosis of degenerative joint disease in the Veteran's cervical spine, continuing treatment of the neck and back, and a few reports by the Veteran relating his neck and/or back pain to service. The evidence of record received since the June 1997 Board decision includes: (1) VA treatment records dated August 2007 through November 2007 showing ongoing treatment for back and neck pain, and the Veteran's report that his back and neck symptoms started in 1976; (2) private treatment records dated September 1979 to July 2008, showing work-related injuries to the Veteran's back in December 1980 and February 1981, and multiple complaints of back pain; (3) copies of 1978 service treatment records submitted by the Veteran; and (4) a June 1982 letter to one of the Veteran's private doctors from a chiropractor, Dr. R., opining the Veteran's current diagnoses were caused by his work. For evidence to be new and material in this matter, it would have to tend to show that the Veteran's current low back and/or neck disabilities were incurred in service, or otherwise related to his military service. On review of the evidence above, the Board finds that the evidence received since June 1997 is new, except for the additional copies of the Veteran's 1978 service treatment records, which are duplicative of those already of record. However, this new evidence is not material to the claims, as nothing added to the record relates to the reason the claims were originally denied; i.e., nothing therein shows or implies that the Veteran's current low back and neck disabilities are attributable to an event, injury, or disease during service. The Board has considered the Veteran's lay statements to providers that his neck and back disabilities are related to his military service, but these statements are merely cumulative of his statements of record at the time of the June 1997 Board decision. While the new private treatment records and the letter from his chiropractor, Dr. R., pre-date the Veteran's July 1984 motor vehicle accident, and reflect complaints of back pain by the Veteran, they do not show any complaints of pain or any diagnoses of a back and/or neck disability within one year of the Veteran's separation from active duty in June 1978. The first noted complaint of back pain is in October 1980. These records are silent as to references to an event or injury during service, silent as to any complaints by the Veteran of pain during or since service, and they do not attribute the Veteran's post-service complaints of back pain to his active duty service. Instead, the records relate the Veteran's complaints of back pain to incidents on the job, or the nature of the Veteran's post-civilian employment. The Board has considered the low back disability and neck disability claims in light of Shade, 24 Vet. App. 110. Although Shade asserts that a case must be reopened if any previously-unproven element of service connection is addressed, in this case the evidence received since June 1997 does not pertain to any element of service connection that was previously missing. Accordingly, the circumstance cited by Shade is not applicable for the low back disability claim or the neck disability claim. Although the additional treatment records and chiropractor letter constitute new evidence, they are not material in that they do not show a possibility of substantiating the Veteran's claims. Accordingly, the additional evidence received since June 1997 is not new and material, and the claim may not be reopened. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen one or both of his claims, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). [Continued on next page] ORDER As new and material evidence has not been received, reopening of the claim of service connection for a low back disability is denied. As new and material evidence has not been received, reopening of the claim of service connection for a neck disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs