Citation Nr: 1336325	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  09-46 663A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for lumbosacral strain.

2. Entitlement to service connection for lumbar degenerative disc disease. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Donohue, Counsel




INTRODUCTION

The Veteran served on active duty from June 1969 to March 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Veteran testified at a personal hearing in October 2010 before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing has been associated with the Veteran's VA claims folder.

In February 2011, the Board observed that the Veteran had recently been diagnosed with degenerative disc disease with lumbar stenosis at L4-L5.  As the RO had not implicitly or explicitly denied service connection for this disability, the Board treated it as a new claim for service connection.  This issue, along with the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for lumbosacral strain, was remanded for additional development.  

Following the February 2012 supplemental statement of the case, additional VA treatment records were associated with the Veteran's electronic claims file.  The RO has not considered this evidence in connection with the Veteran's spine disability, however, the Veteran, through his representative, waived consideration of such evidence by the Agency of original jurisdiction in an October 2013 statement. See 38 C.F.R. § 20.1304 (2013).


FINDINGS OF FACT

1. In an unappealed June 2003 rating decision, the RO confirmed and continued a prior denial of service connection for lumbosacral strain.

2. The evidence associated with the claims file subsequent to the RO's June 2003 rating decision is cumulative and redundant of evidence already of record at the time of that decision.

3. The Veteran's current lumbar degenerative disc disease did not manifest in service, within one year of service, and is unrelated to service.


CONCLUSIONS OF LAW

1. The June 2003 rating decision, which continued a prior denial of service connection for a lumbosacral strain, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013).

2. New and material evidence has not been received to reopen the claims for service connection for lumbosacral strain.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013).

3. Degenerative disc disease of the lumbar spine was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  

Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000).  

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, 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.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet.App. 112, 119 (2004). 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess, supra.

In the present case, VA issued a VCAA notice letter to the Veteran in June 2009.  This letter informed the Veteran of what evidence was required to substantiate a claim for service connection claim and of his and VA's respective duties for obtaining evidence.  

The June 2009 VCAA notice letter also informed the Veteran that his claim for a back condition had previously been denied and that in order to reopen the claim he would need to submit new and material evidence.  The letter informed the Veteran of what evidence was required to reopen his previously denied claim.  The Board notes that the language contained in the June 2009 VCAA letter substantially follows the regulatory language of 38 C.F.R. § 3.156 and complied with the holding of the Court in Kent v. Nicholson, 20 Vet.App. 1 (2006).  See also 38 C.F.R. § 3.156 (2013).

With respect to the notice requirements set forth in Dingess and the Veteran's service connection claim, elements (1) and (2), veteran status and existence of a disability, are not at issue.  Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the Board's denial of the service connection claim on appeal.  In other words, any lack advisement as to those two elements is meaningless, because a disability rating and effective date are not assigned.  The Veteran's claim is being denied based on element (3), a connection between the Veteran's service and the claimed disability.  As explained above, he has received proper VCAA notice as to his obligations and those of VA, with respect to this crucial element in the above-mentioned VCAA letter that informed him of what the evidence must show. 

In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA.

The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 

In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it.  

In this capacity, in February 2011, the Board remanded the Veteran's appeal in order to obtain a medical nexus opinion.  The Veteran's claims were then to be readjudicated.

The record reveals that the requested medical nexus statement was obtained in April 2011 and the Veteran's service connection claim was readjudicated via the February 2012 SSOC.  

While the Board recognizes that the AMC did not readjudicate the Veteran's new and material claim, this has not resulted in any prejudice to the Veteran.  Specifically, VA has received no evidence pertaining to the reason the Veteran's lumbosacral strain was previously denied.  Under these circumstances, the Board finds that waiver of RO consideration of the additional evidence is not required, and the Veteran is not prejudiced by the Board's adjudication at this time.  See 38 C.F.R. §§ 3.901, 20.1304 (2013); Bernard v. Brown, 4 Vet.App. 384 (1993).

Thus, the Board finds that there has been substantial compliance with its remand instructions.  See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).

Further, the record contains the Veteran's service treatment records, VA outpatient treatment records, The October 2010 hearing transcript, and a VA examination report and addendum. 

The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. 

As the Board will discuss in its analysis, the Veteran was provided with a VA examination in May 2010 and an addendum was obtained in April 2011.  The report of this examination and opinion reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses and opinions consistent with the evidence of record.  Supporting rationale was also provided for the opinion proffered.  See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008).  The Board therefore concludes that the examination is adequate for adjudication purposes.  See 38 C.F.R. § 4.2 (2013).  

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2013).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claim.  He exercised the option of a personal hearing and was afforded one in October 2010 as detailed in the Introduction. 

During the October 2010 hearing, the undersigned Veterans Law Judge clarified the issue on appeal, explained the concept of service connection, and attempted to identify whether there was any additional evidence that had not been associated with the Veteran's claims file.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.  

II. Law and Regulations

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2013).

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2013). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

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.

Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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) (2013).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

III. Lumbosacral strain

The RO denied the Veteran's original claim of service connection for lumbosacral strain in an August 1976 rating decision.  The Veteran appealed this decision and his claim was denied by the Board in May 1978. 

In October 2002, the Veteran sought to reopen his previously denied claim.  The RO reopened and denied the Veteran's claim in a June 2003 rating decision.  While the Veteran indicated his disagreement with this decision and a statement of the case was issued in August 2004, he did not file a timely VA Form 9 or its equivalent.  See Archbold v. Brown, 9 Vet.App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). 

The June 2003 rating decision is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2013).  As explained, the Veteran's claim for service connection may only be reopened if new and material evidence is received.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  Therefore, the Board's inquiry will be directed to the question of whether any additionally received evidence (i.e., since June 2003) raises a reasonable possibility of substantiating the Veteran's claim.

When the Veteran's claim was denied in June 2003, the record contained his service treatment records, VA treatment records, a VA examination report, and lay statements.  Based on this evidence, the RO denied the Veteran's claim on the basis that there the evidence did not show that his back disability was incurred in or aggravated by military service. 

The evidence associated with the Veteran's claims folder since the June 2003 rating decision includes VA treatment records documenting treatment for a back disability, a VA examination report and addendum which do not discuss the Veteran's lumbosacral strain, as well as the October 2010 hearing transcript and lay statements wherein the Veteran describes continuing back symptomatology. 

To the extent the recently received evidence demonstrates treatment of a current disability, the Veteran's claim was not previously denied on the basis of a lack of a current disability.  Evidence that confirms a previously established fact is cumulative.  The submitted treatment records do not document a nexus to service.  In other words, the presence of a current disability was previously of record.  Alone and in connection with evidence previously assembled, this evidence reflecting treatment for a spine disability is duplicative rather than new and material.  38 C.F.R. § 3.156(a).  Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board.  See Anglin, supra. 

To the extent to which the Veteran testified and submitted lay evidence of an in-service back injury and ongoing back symptomatology, this evidence is cumulative and redundant.  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992) (explaining testimony concerning how the claimant's ankle was injured was not new as the Veteran made that assertion many years earlier).  Specifically, the Veteran had argued as early as February 1977 that he injured his back during service and has experienced ongoing symptomatology.  Accordingly, the Veteran's October 2010 testimony and lay statements of an in-service injury and ongoing pain are duplicative of his prior arguments and does not constitute material evidence. See also Paller v. Principi, 3 Vet. App. 535, 538 (1992) ('[t]here will be a point reached, and probably fairly quickly . . . [that] the evidence being proffered has been fairly considered and that further rearticulation of already corroborated evidence is, indeed, cumulative.').

In this capacity the Board recognizes that the Veteran's allegation that he has a back disability as a result of an in-service injury have been reported in his VA treatment records.  See a March 2010 VA treatment record.  While these statements are documented in his VA treatment records, they are no different from the statements he submitted in connection with his claim for benefits. See LeShore v. Brown, 8 Vet.App. 406, 409 (1995) ('a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional').  The statements are duplicative of evidence that was previously considered by the RO.  

Thus, the additional evidence received since the June 2003 rating decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for lumbosacral strain is not reopened.

IV. Degenerative Disc Disease 

The Veteran contends that he has a back disability as a result of a fall that occurred while on active duty.  See a July 2009 statement; see also the May 2010 VA examination report.  The Veteran is not alleging that his disability is a result of combat.  As a result, the combat presumption is not for application in this case.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013).

Service treatment records document that the Veteran was seen in March 1971 for complaints of frequent urination with low back pain.  In September 1971 the Veteran sought treatment for pain in his left side.  He was diagnosed with a back strain.  

The Veteran reported that he had experienced recurrent back pain in a self-report of medical history completed during his separation examination.  A physician reviewed his comments and noted that the Veteran had recurrent back pain with a history of a kidney infection during childhood.  A clinical examination of the Veteran's spine and musculoskeletal system revealed that his spine was clinically normal.

The Veteran entered the Air Force Reserves after service.  Treatment records associated with this period of service indicate that in September 1974, the Veteran reported that he had right side back pain.  He was diagnosed with a muscular spasm.  

When evaluated for periodic examination purposes in November 1976, the Veteran stated that he experienced recurrent back pain.  The examining official's notes indicate that in March 1976, he was treated in Kingsbridge VA Hospital for low back pain and was prescribed a back brace, limited duty, and Valium.  It was noted that he experienced periodic back pain following exercise or heavy lifting.  It was further observed that there had been no sequelae or complications.  The spine and musculoskeletal system were evaluated as normal.

Accordingly, while the Veteran's February 1973 separation examination and November 1976 periodic examination revealed that his spine was clinically normal, based on his in-service complaints and diagnosis of back strain, the Board finds that an in-service injury or disease has been demonstrated.

The earliest evidence of any spine symptomatology following the Veteran's separation from service comes from a February 1976 VA treatment record which documents the Veteran's complaints of pain back pain which began two days ago.  

As alluded to in his treatment records from the Air Force Reserves, the Veteran was hospitalized in May 1976 for back pain and a myelogram.  A clinical history reported that the Veteran had lifted a heavy bag in February and experienced back pain radiating down the right thigh.  It was reported that the appellant was given a course of three weeks strict bed rest and medication without success, followed by a second course of bed rest with continued pain.  

The Veteran's discharge summary indicates that back pain resolved after several days of bed rest and that the myelogram was within normal limits.  The Veteran was discharged to home and was advised to put a board in his bed to lie supine and a pillow below his knees when his back symptoms flared up.  A discharge diagnosis of lumbar strain, rule out herniated nucleus pulposus, was recorded.

After filing his claim in 2009, the Veteran was afforded a VA examination of the spine in May 2010.  During the examination, the Veteran stated that he hurt his back after an injury and fall in the military in the early 1970s.  After conducting a physical examination, the examiner diagnosed the Veteran with multilevel degenerative disc disease with lumbar stenosis at L4-5 with subjective, but not objective, evidence of lumbar radiculopathy.  

VA treatment records during the appeal period note that the Veteran has also been diagnosed with degenerative joint disease, left lumbar radiculititis, lumbar facet joint syndrome, lumbar spinal stenosis and multilevel spondylosisis of the lumbar spine.  See July 2009 and February 2010 VA treatment records.

The Board also notes that the Veteran has provided conflicting statements of when his disability first began.  For example, during the October 2010 hearing, the Veteran testified that his disability began during service.  See the hearing transcript, page 10.  In contrast, shortly after his separation from service, the Veteran reported that he began experiencing back pain in February 1976.  See a February 1976 VA treatment record. More recently, the Veteran reported to his treating physicians that he began experiencing back pain in February 2009.  See a June 2009 VA treatment record.  

The Board notes that the Veteran is competent to report ongoing back pain because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet.App. 465, 470 (1994).  However, in light of the conflicting evidence contained in the claims file, the Board finds that his statements made to his physicians to be more probative than those made in connection with his claim for monetary benefits from the government. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence).

While the record indicates that the Veteran has a current disability, the Board observes that arthritis or degenerative disc disease was not "noted" during service or within one year of separation.  In addition, there were no characteristic manifestations sufficient to identify the disease entity during service or within one year of separation.  38 C.F.R. § 3.303(b).  As such, service connection may not be granted on a presumptive basis.  Nor may service connection be established based on continuity of symptomatology. 

As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed degenerative disc disease and his in-service disease or injury. 

As noted, the Veteran was afforded a VA examination in May 2010.  After review of the claims folder, the examiner stated that the Veteran's disability is less likely than not related to his active duty service.  The examiner then noted that "although his in-service injury may have contributed in some small extent to his current symptoms. It is less likely as not that his current symptoms are a direct result of this isolated incident."  

In February 2011, the Board observed that the opinion provided by the VA examiner was contradictory.  Specifically, while the examiner stated that the Veteran's back disability is less likely than not related to service, she also stated that an incident in 1974 (while the Veteran was in the Reserves) may have contributed to some extent to current symptoms.  As a result, the Board remanded the Veteran's claim in order to obtain a new medical opinion. 

In an April 2011 addendum, the VA examiner who completed the May 2010 examination report stated that the Veteran experienced an "isolated incident" while he was on active duty and while this may contribute to his symptoms in the future; it is unlikely to have contributed to his current spine disability. 

The Board has considered the Veteran's statements that his spine disability is the result of his active duty service.  The Board is cognizant that lay evidence may be sufficient to establish a nexus in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  However, the Veteran's opinion is lacking in specifics and is therefore accorded less probative value than the opinion described above. 

In essence, degenerative disc disease was not manifest during service or within one year of separation and is not otherwise attributable to service.  

In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for degenerative disc disease, as the third Shedden element has not been met.  The benefit sought on appeal is accordingly denied.


ORDER

The application to reopen the claim for service connection for lumbosacral strain is denied.

Service connection for lumbar degenerative disc disease is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs