Citation Nr: 1410170 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-49 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Timothy M. White, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. A July 2007 Board decision denied a claim of entitlement to service connection for a low back disorder; the Veteran did not appeal that decision. 2. The evidence added to the record subsequent to the July 2007 rating decision is redundant or cumulative of the evidence previously of record or 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. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 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 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 originating agency provided the appellant with all required notice by a letter mailed in March 2010, prior to the initial adjudication of the claim. The Veteran's service treatment records are not available. VA has a heightened obligation to search for alternate medical records when service medical records are not available and must also provide an explanation to the veteran regarding VA's inability to obtain his service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). At the October 2011 hearing, the Veteran and his attorney made several assertions with respect to the Veteran's service records which must be addressed. First, the Veteran testified that he enlisted for 4 years of active duty, but that he was released from service early on a medical discharge because of the back injury he claims he incurred during service. A copy of the Veteran's discharge papers, DD 214, is of record and reflects that he served on active duty from June 1976 to December 1977, a period of 1 year, 5 months, and 24 days. However, it also indicates that the Veteran was separated under honorable conditions, and that he had 29 days of lost service. This does not document the medical separation the Veteran claims, but rather a general discharge because of lost time, a disciplinary matter. Second, the Veteran testified that he originally filed for VA benefits around 1981 and it was because he couldn't get a job because he could not pass the physical examinations for jobs due to his claimed back injury. The record reveals that the Veteran initially filed a VA educational benefits claim in February 1979. The claims file contains the Veteran's records related to his educational benefits for the period of time from 1979 to 1983. In March 1980, the Army requested the Veteran's service records from VA because of a request for a discharge upgrade. The May 1980 response was to forward a copy of the Veteran's DD 214 to the Army; the response also indicated that the VA RO did not have any of the Veteran's service treatment records. In 1983, the Army again requested copies of the Veteran's service treatment records and service personnel records from VA, and again the response was that VA did not have the records. Third, at the hearing the Veteran's attorney asserted that a search should be made at the VA ROs in Milwaukee, Wisconsin and St. Paul, Minnesota as possible locations for the Veteran's missing service records. The period of time related to the Veteran's educational benefits was from February 1979, when his file was established at the St. Paul, Minnesota RO, until 1983. During this period a 1981 document indicates transfer of the file to the VA RO in Milwaukee, Wisconsin. However, the record documents that the Veteran's service treatment records were not at the St. Paul RO as of March 1980, prior to this transfer. Accordingly, a search of the Milwaukee RO for the Veteran's service treatment records is unwarranted as the record establishes that those records were missing and not in the custody of VA prior to the point in time when the Veteran's claims file was at the Milwaukee RO. The record reflects that from the time of the filing of the original educational claim in 1979, until the Veteran informed VA that he moved to Oklahoma in May 2002, the claim has been handled by the RO in St. Paul, Minnesota. The Veteran filed his original claim for service connection for a back disability in March 2001. At that time he was living in Minnesota, and the claim was handled by the St. Paul RO. The RO was aware of the issue of missing service records and again requested copies only to be informed in January 2002 that there were no medical records at the National Personnel Records Center (NPRC). This RO has been aware of the complication of the Veteran's missing service records since March 1980, and has been shown not to be in possession of the Veteran's service records since that time. Accordingly, another search for the Veteran's VA records at the St. Paul Minnesota RO is not warranted. Fourth, the record in its entirety reveals that the Veteran has asserted he was hospitalized at three different Army hospitals during service: Fort Campbell, Fort Bragg, and Fort. Leonard Wood. VA has requested a search for additional service treatment records from each specified Army hospital. Responses from the first two were negative for treatment records. VA has received the records from the Army hospital at Fort Leonard Wood and they are of record. Despite the assertions of the Veteran and his attorney that these records show hospitalization for a back injury incurred on an obstacle course in 1976, they reveal that he was actually hospitalized for pneumonia in 1976. VA has requested service treatment records from all the alternate sources, including the Army Hospitals, identified by the Veteran. A March 2001 letter from the NPRC to the Veteran stated that, with the exception of his DD 214, the, "rest of your personnel and medical records were missing from your service record. It appears that your original medical records were sent to the Department of Veterans Affairs (VA) for use in adjudicating a claim for veteran's benefits." However, as indicated above, the only claims submitted by the Veteran prior to 2001, were for educational benefits. Those claims would not have required copies of the Veteran's service treatment records, but generally only a copy of the DD 214 which was placed in the record. Finally, at the October 2011 hearing, the Veteran was informed that the record would be held open for 60 days to afford him the opportunity to submit medical evidence linking his current back disability to service and copies of post-service employment and union physical examination reports. Almost two and a half years later, no such evidence has been submitted. To restate, the record also reflects that VA has conducted multiple attempts to obtain the Veteran's service treatment records, including from alternate sources, and all available service treatment records and relevant post-service treatment records have been obtained. Neither the Veteran nor his attorney has identified any additional, existing 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). 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 means existing evidence not previously received by 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. 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) . 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, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Factual Background and Analysis The Board denied service connection for a low back disorder in a July 2007 decision. He was notified of this decision that same month, but did not file an appeal with the Court. The evidence of record at the time of the August 2007 Board included: the Veteran's discharge papers, DD 214, available service treatment records showing hospitalization during service in 1976; a March 2006 VA examination report; VA treatment records; a copy of the Veteran's disability file received from the Social Security Administration (SSA); and transcripts of the Veteran's hearings before the Board in April 2004 and April 2007. The evidence established that the Veteran had a current low back disorder diagnosed as degenerative disc disease of the lumbosacral spine. However, the claim for service connection was denied because of an absence of competent evidence linking the current low back disorder to service. Evidence added to the record since the time of the July 2007 Board decision includes VA outpatient treatment records and the Veteran's testimony at the October 2011 hearing before the Board. The VA treatment records confirm that the Veteran continues to be treated for symptoms of low back pain but do not suggest that the current low back disability is related to service. Therefore, they are cumulative of the evidence previously of record and do not constitute new evidence. The Veteran's October 2011 hearing testimony is also not new, it is cumulative in nature as it is essentially identical to his testimony before the Board on two prior occasions in April 2004 and April 2007; this testimony was considered at the time of the July 2007 Board decision which denied service connection. As this evidence is not new, it cannot serve as the basis for reopening the claim. In sum, the Veteran has not submitted any evidence since the July 2007 Board decision which is new. Rather, all evidence submitted or obtained since the July 2007 Board decision which denied service connection is cumulative of evidence which was already of record and was previously considered. There is still no competent evidence linking the Veteran's current low back disorder to service. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 disorder is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs