Citation Nr: 1337191 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-00 208A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of right distal radius fracture and ulna dislocation (right wrist disability). 2. Entitlement to a disability rating in excess of 30 percent for right wrist disability. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to December 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue of entitlement to an increased rating for the right wrist disability is addressed in the REMAND that follows the ORDER section of this decision. The record before the Board consists of the Veteran's paper claims files and an electronic file know as Virtual VA. FINDINGS OF FACT 1. The RO reopened and denied the claim for service connection for a low back disorder, to include as secondary to the Veteran's service-connected right wrist disability in a November 2005 rating decision; the Veteran did not perfect an appeal of the rating decision. 2. The evidence added to the record subsequent to the November 2005 rating decision is duplicative or cumulative of the evidence previously of record, and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability, to include as secondary to a right wrist disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), 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. They 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 the Secretary 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the 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 v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the Veteran was provided with the required notice in a November 2008 letter. The Board notes that the November 2008 letter addressed the need for new and material evidence to reopen the previously denied claim with regard to the low back disorder, but misidentified the prior final decision. The November 2008 letter, however, correctly identify the basis for the prior final denial and informed the Veteran of the information and evidence necessary to substantiate the claim, affording the Veteran a full and fair opportunity to participate in the adjudication of the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Similarly, a September 2009 Statement of the Case and December 2011 Supplemental Statement of the Case incorrectly identified a December 1990 Board decision as the last final decision with respect to the claim, but the Veteran was not prejudiced, as the error did not change the correct information regarding the needed evidence and information with regard to the claim to reopen, and it was fully adjudicated on the proper basis. The Board also finds that VA has complied with its duty to assist the Veteran in the development of his claim to reopen. In this regard, VA obtained the Veteran's service treatment records and his post-service medical evidence. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that a VA examination was not provided but notes that VA is not required to provide a VA examination in response to a claim to reopen if new and material evidence has not been presented. See 38 C.F.R. § 3.159(c)(4). Accordingly, the Board will address the merits of the claim. Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis The record reflects that the RO initially denied the Veteran's claim for service connection for a low back disability in a February 1989 rating decision. The Veteran appealed, and the Board denied service connection by a decision dated in December 1990. The Veteran appealed the Board's decision to the Court, which affirmed the Board's decision in an April 1992 decision. The Veteran did not thereafter appeal the Court's decision. Subsequently, the Veteran filed an application to reopen the previously denied claim, in which he claimed service connection for the low back disorder as secondary to his service-connected right wrist disability. The RO denied the claim for service connection in an unappealed November 2005 rating decision. The RO essentially denied the claim because the evidence did not show that the low back disorder was related to the service-connected right wrist disability or to the Veteran's active service. The evidence associated with the record at the time of the most recent November 2005 final rating decision included the Veteran's service treatment records, which are negative for evidence of a back disability, and a November 1989 VA examination report showing a diagnosis of a lumbar strain. The record also included VA treatment records dated from June 1988 through August 2005 documenting the Veteran's reports of an in-service back injury; these records show an assessment of chronic lumbosacral strain, post-traumatic in September 1991. Private treatment records dated through June 2000 were also of record showing additional assessments of the Veteran's lumbar spine, along with records associated with the Veteran's claim for SSA benefits. Lastly, the record included the Veteran's statements indicating that he sustained a back injury in 1974 while in service due to a fall during which he fractured his right wrist. The Veteran also claimed that his low back disorder was secondary to his right wrist disability. In November 2008, the Veteran filed the current application to reopen the previously denied claim. In support of his application, he essentially claimed that the post-service medical evidence shows that his low back disorder is due to an in-service fall. He also reiterated his belief that his low back disorder is related to his service-connected right wrist disability. Evidence added to the record since the time of the November 2005 rating decision includes VA treatment records dated from June 1988 through September 2012, private treatment records dated through October 2008, and additional statements from the Veteran reiterating his previous contentions that service connection is warranted for his low back disorder. His VA and private treatment records reflect additional assessments and treatment of his low back condition and further document his reports that his low back disorder began following a fall during his active service. Also of record is a January 2008 statement from the Veteran's sister, in which she reported that the Veteran experienced back symptomatology after his discharge from the Marines. Having reviewed the evidence of record, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for a low back disorder. At the time of the last final denial in November 2005, there was no medical evidence linking the Veteran's low back disorder to his active service or his service-connected right wrist disability. Evidence submitted since that time includes VA and private treatment records documenting the Veteran's reports of an in-service back injury and showing treatment for his low back symptomatology. The Board initially notes that some of the VA and private treatment records submitted in support of the Veteran's application to reopen are duplicative of records that were previously considered, and thus are not new. Although other recently submitted VA and private treatment records are not duplicative, they are not material because they do not tend to establish a previously unestablished fact, namely that the claimed low back disorder is causally related to the Veteran's active service or was caused or aggravated by a service-connected disability. To the extent that these records reflect ongoing complaints and treatment of the Veteran's low back symptomatology, they are cumulative or redundant of previously considered evidence. Despite the Veteran's assertions to the contrary, the medical evidence added to the record still does not suggest that his low back disorder is related to his active service or his service-connected right wrist disability. Thus, the records submitted since the November 2005 rating decision do not raise a reasonable possibility of substantiating the claim. Similarly, the lay statements from the Veteran are essentially cumulative of the statements that he submitted prior to the November 2005 rating decision. Since his initial claim for service connection, he has maintained that he injured his low back disorder while on active duty and has had a low back condition since service. The RO rejected his assertion by denying his claim in the November 2005 rating decision. The statement from the Veteran's sister is new, but it does not address whether the Veteran injured his low back in service and is not competent evidence of a nexus between the Veteran's post-service low back disability and his active service or service-connected right wrist disability. Therefore, it is not material. In sum, there is still no competent evidence that the claimed low back disorder is related to the Veteran's active service, or that the disorder was caused or aggravated by a service-connected disability. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See, Shade, supra. Thus, the Board finds that new and material evidence has not been submitted, and reopening of the claim is not in order. ORDER New and material evidence having not been received, reopening of the claim of entitlement to service connection for a low back disability, to include as secondary to a right wrist disability, is denied. REMAND Unfortunately, a remand is required with respect to the Veteran's remaining claim. The Veteran seeks a disability rating higher than 30 percent for his service-connected right wrist disability. Currently, his disability is rated under Diagnostic Codes 5215-5215, which pertain to a limitation of motion of the wrist and impairment of the radius, respectively. In addition to Diagnostic Codes 5215 and 5212, the Board must consider other potentially relevant diagnostic codes in determining whether an increased rating is warranted in this case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this regard, the medical evidence currently of record does not describe certain elements of the Veteran's right wrist disability in way which allows the disability to be properly evaluated under Diagnostic Code 5212 or other relevant diagnostic codes. Specifically, the criteria of Diagnostic Codes 5210, 5211, and 5212 are based on the physical state of the Veteran's right radius and ulna bones (i.e., nonunion, malunion, loss of bone substance, and deformity). Although the Veteran was most recently provided a VA examination in February 2012, the examination report does not adequately address the criteria for evaluating the disability under these diagnostic codes. Moreover, the claims file was not reviewed by the February 2012 examiner, and thus, the examiner did not discuss a December 2008 VA examination report indicating that the Veteran has a shortened right radius, which could potentially entitle the Veteran to a higher disability rating. See 38 C.F.R. 4.71a, Diagnostic Code 5212. As the current medical evidence does not allow the Board to properly evaluate the severity of the Veteran's disability, the Veteran must be afforded a new VA examination to address these deficiencies. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (determining that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).. Additionally, a remand is required so that the RO or the Appeals Management Center (AMC) may evaluate the disability based on all of the manifestations of the disability. The medical evidence includes the Veteran's reports of experiencing neurological symptoms in his right forearm and a January 2010 VA treatment record showing findings of mild median neuropathy. At that time, the Veteran's physician commented that his issue was musculoskeletal at the right distal forearm, indicating that his symptoms may be related to his service-connected right wrist fracture. However, the RO has not addressed the Veteran's neurological symptoms or otherwise considered whether a separate or higher rating may be assigned for the right wrist disability based on any neurological impairment. Accordingly, the case is REMANDED to the RO or the AMC in Washington, D.C. for the following actions: 1. Undertake appropriate development to obtain any outstanding VA records and private medical records pertinent to the Veteran's claim. 2. Thereafter, arrange for the Veteran to be afforded a VA examination by an examiner or examiners with sufficient expertise to determine the current level of all impairment (including any neurological impairment) resulting from the Veteran's service-connected right wrist disability. The claims files and a copy of any pertinent records in Virtual VA that are not contained in the claims files should be made available to and reviewed by the examiner(s). Any indicated studies should be performed. The RO or the AMC should ensure that all information required for rating purposes is provided by the examiner(s), to include all relevant orthopedic and neurological manifestations of the service-connected right wrist disability. 3. Undertake any other indicated development. 4. Thereafter, readjudicate the remanded issue, to include consideration of all relevant diagnostic codes and rating criteria. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case and an appropriate opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs