Citation Nr: 1337649 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-18 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from April 1956 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's previously denied claim of entitlement to service connection for a low back disorder. In March 2013, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. In July 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ), seated at the RO. A transcript of the hearing has been associated with the claims file. At that time, the Veteran requested that the record be held open to allow him time to submit additional evidence. He asserted that he intended to waive RO consideration of such evidence. Indeed, the Veteran submitted additional evidence in September 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In the present case, the VLJ fully explained the issue on appeal and informed the Veteran that in order to satisfy his claim, evidence that his current low back disorder was related to his in-service low back injury was required. The VLJ suggested the submission of any evidence; any outstanding private treatment records, and asked the Veteran a number of questions as to the locations of his past and current treatment. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor have they identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and the Board can adjudicate the claim based on the current record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In a May 1990 rating decision, the RO denied the claim for service connection for a low back disorder; the Veteran did not appeal. 2. The evidence received since the May 1990 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a low back disorder. 3. Resolving all doubt in favor of the Veteran, he has experienced recurrent low back symptoms since his separation from service to the present. CONCLUSIONS OF LAW 1. The May 1990 RO decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d), 20.302 (2013). 2. New and material evidence has been received to reopen the claim for service connection for a low back disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.201 (2013). 3. A low back disorder, characterized as degenerative joint disease, spinal stenosis, facet arthropathy, and chronic muscle strain, was incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. New and Material Evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. 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 is defined as evidence not previously submitted to agency decisionmakers. 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. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that 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. Id. at 118. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this case, the Veteran's initial April 1957 claim for service connection for a low back disorder was denied in an August 1957 rating decision. The claim was initially denied because the RO found that there was no evidence of a current disability. Within one year of the RO's August 1957 rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52. As such, the August 1957 rating decision became final. However, the Veteran filed another claim for service connection for a low back disorder, in March 1990. The RO, in a May 1990 rating decision, denied the claim on its merits, without consideration of whether new and material evidence sufficient to reopen the claim had been submitted. The RO denied the claim on the basis that the Veteran's current low back disorder was too remote from service to be related to his in-service low back injury. Within one year of the RO's May 1990 rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52. As such, the May 1990 rating decision became final and represents the last final denial of the issue of entitlement to service connection for a low back disorder on the merits. The evidence of record at the time of the May 1990 RO rating decision included the Veteran's service treatment records and private treatment records, as well as the Veteran's statements. Evidence added to the record since that time includes VA and private treatment records, as well as the Veteran's statements. Significantly, the Veteran's statements, as discussed below, are competent and credible and thus probative evidence of continuous low back symptoms from the time of his separation from service to the present. Further, the VA and private treatment records include diagnoses of arthritis. Thus, as the basis for the RO's last final denial of service connection was that the Veteran's current low back disorder was too remote from service to be related to his in-service low back injury, and newly received evidence includes record of arthritis, as discussed below, a chronic disorder for VA compensation purposes, and probative evidence of recurrent low back symptoms since service, the new evidence is material. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) 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 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The United States Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is listed as a chronic condition under 38 C.F.R. § 3.309(a). Any arthritis may thus be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, arthritis may be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran separated from service in August 1956 and, as discussed above, filed his first claim for service connection for a low back disorder in April 1957, less than one year later. In a May 1957 statement, he asserted that he injured his back during service. The Veteran's service treatment records from June 1956 and July 1956 indicate that he sought treatment on numerous occasions for low back pain, and was diagnosed with slight muscle tenderness, acute low back strain, and spasm. In June 1956, X-ray examination of the spine was normal. In July 1956, he was treated with a low back cast. His August 1956 Report of Medical Examination indicates that his spine appeared normal on physical examination, and the examiner noted that the Veteran had an accident while lifting in June 1956, and was treated with a cast for two weeks, without complications or sequelae. While the RO, in its August 1957 rating decision denying the Veteran's first claim, asserted that there was no evidence of a current low back disorder "on last examination," the claims file is silent for report of any VA examination. Private treatment records dated in August 1989 demonstrate that the Veteran complained of low back pain for one week, and reported treatment with another private physician years ago. X-ray examination at that time revealed narrowing of the L4-L5 disc space. Private treatment records dated in September 1990 indicate that he complained of low back pain for two weeks, with a history of back pain. VA treatment records dated in September 1992 indicate that the Veteran complained of worsening back pain, and reported a back injury during service. A VA physician, in December 1997, treated the Veteran for low back pain and diagnosed him with degenerative joint disease with chronic low back pain. He also noted the Veteran's history of a gunshot wound in the axillary area in 1974, followed by thoracoplasty and diagnosed him also with history of disc disease of the spine status-post thoracotomy; and noted a 1976 motorcycle accident. Review of the Veteran's private treatment records indicate that after his early-1970's motorcycle accident, he was treated for neurological deficits of the left arm and face, without notation of any back injuries. VA treatment records dated in June 2007 indicate that the Veteran reported pain in the low back for four days, with paraspinal muscle spasm found on examination. During his July 2013 Board hearing, the Veteran provided recitation of his in-service low back injury and noted that he filed a claim for service connection for a low back disorder immediately upon separating from service. He reported that he did not recall his VA examination related to his original claim. He asserted that he was treated by a civilian physician after separation from service, and that he had seen physicians periodically to treat his low back pain between 1957 and the present. Private treatment records dated in September 2013 indicate that the physician reported that the Veteran had chronic low back pain, likely from a combination of facet arthropathy and chronic muscle strain, symptoms of spinal stenosis and neurogenic claudication. He noted that the Veteran had reported back pain since 1956 when he had a muscle injury during service. He noted that recent magnetic resonance imaging (MRI) revealed lumbar facet arthropathy, disc degenerative changes, and poly-radiculopathy in the legs. He opined that the Veteran's chronic back pain is multifactorial, and that his remote back injury may play a role in his chronic back pain. The Veteran is competent to report continuous or recurrent low back symptoms since separation from service, and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, at 470. The Veteran's competent and credible, and thus probative, lay statements as to continuity of low back symptoms since separation from service are bolstered by the fact that he filed a claim for service connection for a low back disorder within one year of separation from service. After resolving all reasonable doubt in the Veteran's favor, the Board finds that his current low back disorder had its onset in service. The Veteran has a current diagnosis of a low back disorder, degenerative joint disease, spinal stenosis, facet arthropathy, and chronic muscle strain, and was treated for a low back injury during service. He has demonstrated continuous or recurrent symptoms of a low back disorder since his separation from service to the present. 38 C.F.R. § 3.303(d). The Board thus finds that the evidence of record sufficiently places the onset of a low back disorder during active service. Service connection is warranted. The appeal is granted. ORDER New and material evidence having been submitted, the claim for service connection for a low back disorder is reopened; and service connection for a low back disorder, characterized as degenerative joint disease, spinal stenosis, facet arthropathy, and chronic muscle strain, is granted. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs