Citation Nr: 1627361 Decision Date: 07/08/16 Archive Date: 07/14/16 DOCKET NO. 13-02 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a low back disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1979, and from February 1991 to March 1991. The Veteran has additional service in the United States Army Reserves and New Jersey National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2013, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issue on appeal and engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. In February 2015, the Board remanded the appeal to the RO for additional development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), was also remanded by the Board in February 2015. Following development conducted pursuant to the Board's remand, the RO granted service connection for PTSD in a February 2016 rating decision. As this issue has been fully granted, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In a February 2007 rating decision, the RO denied the Veteran's application to reopen a claim of service connection for a low back disorder. The Veteran did not perfect an appeal to this decision. 2. Additional evidence received since the February 2007 rating decision, when considered by itself or in the context of the entire record, does not relate to a fact unestablished by the previously available record that is necessary to substantiate the claim of service connection for a low back disorder. CONCLUSIONS OF LAW 1. The February 2007 rating decision is final. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2015). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to applications to reopen, VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim; however, it is required "to explain what 'new and material evidence' means." Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012); see also Wilson v. Mansfield, F.3d 1055, 1059 (Fed. Cir. 2007) (holding that the language of the statute was not "intended to require an analysis of the individual claim in each case," but only to require notice of "the information and evidence necessary to substantiate the particular type of claim being asserted."). The RO provided notice to the Veteran in July 2010 prior to the initial adjudication of the claim in May 2011. The Veteran was provided with additional notice in April 2015. Together, these notice letters provided notice to the Veteran addressing new and material evidence, and notice regarding what information and evidence is needed to substantiate the claims of service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. Together, these letters defined "new and material evidence," and addressed the rating criteria and effective date provisions that are pertinent to the Veteran's claim. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file include service treatment records, post-service VA and private treatment records, records from the Social Security Administration (SSA), and the Veteran's statements, including his testimony at the June 2013 Board hearing. In the February 2015 Remand, the Board requested that the Veteran be provided an opportunity to submit any pertinent private medical records that are relevant to the appeal or identify any such private medical records to allow VA to obtain them. Specifically, the Board identified eight different private treatment providers previously identified by the Veteran. In April 2015, VA sent correspondence to the Veteran requesting that he submit any outstanding private medical records or complete a VA Form 21-4142, Authorization and Consent to Release Information, so VA could obtain any identified records. In addition, the Board requested that the Veteran be provided an opportunity to submit or identify any additional records pertaining to his worker's compensation claim that are relevant to the appeal. In July 2015, VA sent correspondence to the Veteran requesting that he submit any outstanding records relating to his worker's compensation claim. The "duty to assist is not always a one-way street" and a veteran is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To date, the Veteran has submitted one VA Form 21-4142, which identified records from a private physician not identified in the February 2015 Remand; these private medical records have been obtained and associated with the claims file. In addition, the Veteran has not responded to the July 2015 correspondence regarding the worker's compensation claim. Therefore, the Board will decide this matter based on the evidence of record as it is currently developed. VA's duty to assist also requires VA to provide a veteran with a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. However, VA has no specific duty to conduct an examination with respect to applications to reopen because the duty under 38 C.F.R. § 3.159(c)(4) applies only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). See also Woehlaert v. Nicholson, 21 Vet. App. 456. As discussed in detail below, new and material evidence has not been received; therefore, there is no duty to provide a VA examination or obtain a medical opinion. VA has therefore satisfied its duties to notify and assist and the Board may proceed with appellate review. New and Material Evidence Claims Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components: first, that the new evidence pertains to the reason(s) for the prior final denial; and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board considers whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. Evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). Application to Reopen a Claim of Service Connection for a Low Back Disorder The Veteran seeks to reopen a claim of service connection for a low back disorder, to include residuals of a low back strain and degenerative disc and joint disease. In a February 1992 rating decision, the RO denied service connection for a low back disorder. The Veteran did not initiate an appeal as to the February 1992 rating decision; therefore, the February 1992 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In February 2006, the Veteran submitted an application to reopen a claim of service connection for a low back disorder. In a February 2007 rating decision, the RO denied reopening of a claim of service connection for a low back disorder, determining that new and material evidence had not been received. In January 2008, the Veteran initiated an appeal by filing a Notice of Disagreement. However, the Veteran did not perfect the appeal following the July 2008 Statement of the Case. Therefore, the February 2007 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The evidence of record at the time of the July 2008 Statement of the Case consisted of service medical records, VA examinations from April 1991 and August 2006, VA and private treatment records dated through February 2008, portions of the Veteran's worker's compensation claim, and the Veteran's statements. Service medical records reflect one report of low back pain during the Veteran's first period of active duty. A December 1978 service treatment record reflects complaints of low back pain associated with profuse sweating, vomiting, laryngitis, headaches, and myalgias. Additional service medical records dated prior to 1991 reflect no complaints of, diagnosis of, or treatment for low back pain. In several Report of Medical History forms dated in April 1979, July 1981, November 1982, and June 1988, the Veteran denied recurrent low back pain. Likewise, service examinations reports dated in April 1979, July 1981, November 1982, and June 1988, reflect normal spinal examinations. Service medical records associated with the Veteran's second period of active duty reflect complaints of low back pain, but attribute these complaints to a workplace injury that occurred prior to active duty with no aggravation by active duty. In a February 1991 Report of Medical History form, the Veteran denied recurrent low back pain. In a March 1991 Report of Medical History form, the Veteran again denied recurrent low back pain; however, the service physician noted that the Veteran experienced a workplace injury to his back in 1988, which had resolved in part with physical therapy. The service physician indicated that during active duty the Veteran wore a back brace occasionally and did not experience a re-injury. In the accompanying examination report, the service physician documented limited range of motion of the lumbar spine, and diagnosed chronic low back problems that existed prior to service. The April 1991 VA examination report reflects that the Veteran reported initially injuring his back at work in April 1987. The Veteran reported that his back injury was aggravated by his period of active duty in support of Operation Desert Storm. Following examination, the VA examiner diagnosed a lumbosacral strain. The VA examiner noted the pending worker's compensation claim and indicated his opinion that the back disorder was not service-connected. Documents from the Veteran's worker's compensation claim that are contained in the claims file reflect that a settlement was reached in September 1991 due to injuries that occurred in April and May 1989. These documents reflect that the Veteran experienced residuals of repeated strains to the lumbar spine with diffuse, residual lumbar myositis. In August 2006, the Veteran was afforded a general medical VA examination. At that time, the Veteran indicated that he was diagnosed with degenerative disc disease in 2003 and reported a ten-year history of constant low back pain with occasional neurological symptoms. The Veteran reported working approximately 30 hours a week as a paramedic. The VA examiner performed a cursory examination, and scheduled the Veteran for an orthopedic examination; however, the Veteran did not attend the scheduled examination. VA treatment records dated through February 2008 reflect the Veteran's continued reports of chronic low back pain. These treatment records provide diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine. These treatment records do not reflect a nexus to the Veteran's service. Instead, they reflect that the Veteran reported a June 2007 injury at work. The Veteran's statements consistently reflect his contention that service connection is warranted for a low back disorder. The Veteran provided two theories of service connection. First, that his low back disorder was aggravated by his period of active duty in support of Operation Desert Storm. Second, that his low back disorder was caused by the physical activity requirements of his active duty and reserve service. Evidence received subsequent to final February 2007 rating decision consists of records from the SSA, additional service personnel records, private medical records dated in 2014, VA treatment records dated through May 2015, and the Veteran's statements, including his testimony at the June 2013 Board hearing. SSA records reflect that the Veteran was awarded disability benefits based on his low back disorder, effective August 2009. These records reflect symptoms and functional limitations associated with his low back disorder. The Veteran reported that his low back disorder first interfered with his ability to work in the 1990s and precluded employment beginning in 2009. An examining physician indicated the Veteran experienced chronic pain and severe disease adjacent to his 2008 surgery, but made no opinion regarding the initial onset of the low back disorder. During the June 2013 Board hearing, the Veteran provided testimony in support of the appeal. When asked when he injured his back, the Veteran testified that "the final episode" occurred when he injured his back at work. The Veteran reported that this injury occurred in either 2005 or 2006, "many years out of service." The Veteran described no in-service injury or aggravation. A July 2014 private examination report reflects that the Veteran reported chronic low back pain following a June 2007 workplace injury and re-injury in 2012 while exercising. The examination report does not mention the Veteran's military service. Following examination, the private physician diagnosed mechanical back pain with progressive sciatica. The private physician then opined that "the diagnosis does appear causally related to the work injury" with some progression following the 2012 injury at the gym. However, the physician recommended the Veteran undergo additional diagnostic testing for more definitive information regarding his low back disorder. In a September 2014 statement, the private physician, after reviewing the additional diagnostic imaging results, opined that "it is hard to know whether the sciatica is in any way related to his original work injury. [The] radiographic findings are more consistent with age related degeneration." VA treatment records dated through May 2015 reflect the Veteran's continued reports of chronic low back pain. These treatment records provide diagnoses of lumbar spine degenerative disc and joint disease, lumbar herniated disc, lumbar facet syndrome, and lumbar radiculopathy, and reflect that the Veteran underwent multiple invasive procedures as treatment. These treatment records do not reflect a nexus to the Veteran's service. The Veteran's statements consistently reflect his continued contentions that his low back disorder was either caused by physical activity requirements of his active duty and reserve service or aggravated by his period of active duty in support of Operation Desert Storm. Based on the above, new and material evidence has not been received to reopen a claim of service connection for a low back disorder. Initially, the Board notes that additional service department records have been associated with the claims file since the final February 2007 rating decision. Generally, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). However, the additional service department records that have been associated with the claims file consist primarily of service personnel records and contain no documentation regarding complaints of, a diagnosis of, or treatment for low back symptoms. Therefore, these service department records are not relevant to the Veteran's claim. Accordingly, review of the Veteran's claim in the context of requiring new and material evidence is appropriate. The Board has considered the VA treatment records added to the claims file since the February 2007 rating decision. The VA treatment records, dated from February 2008 to April 2015 are new, but are not material to the claim. The new VA treatment records reflect continued symptoms and functional limitations associated with the Veteran's low back disorder, as well as continued treatment. However, the new medical evidence does not show a link between any currently-diagnosed low back disorder and the Veteran's active service. The VA treatment records confirm that the Veteran continued to receive treatment for his diagnosed low back disorder. Evidence of the Veteran's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service. Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). At the time of the February 2007 rating decision, the evidence of record showed that the Veteran had degenerative disc and joint disease of the lumbar spine. The pertinent question was whether the Veteran's low back disorder was related to his active service. The new VA treatment records do not address this pertinent question. The Board has considered the SSA records added to the claims file since the February 2007 rating decision. The SSA records are new, but are not material to the claim. The SSA records reflect the Veteran's continued symptoms and functional limitations associated with his low back disorder. These records do not contain evidence regarding the onset or etiology of the low back disorder. The Board has considered the private medical records added to the claims file since the February 2007 rating decision. The private medical records are new, but are not material to the claim. These records reflect the Veteran's continued symptoms and functional limitations associated with his low back disorder. These records also reflect that the Veteran reported the June 2007 workplace incident as the onset of his current symptoms and the private physician's opinion that the low back disorder is either attributable to the reported work injury or age-related degeneration. The Board has considered the Veteran's statements added to the claims file since the February 2007 rating decision. The statements are new, but are not material to the claim. The Veteran maintains that his current low back disorder was either caused or aggravated by his active service. These contentions are cumulative of his previous contentions at the time of his prior claim. By itself or when considered with the evidence previously of record, none of the recently-submitted evidence relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a low back disorder and does not raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has not been received to reopen the claim for service connection for a low back disorder. The requirements to reopen this claim have not been met, and the appeal must be denied. As new and material evidence to reopen the previously denied claim has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been received, the petition to reopen the claim for service connection for a low back disorder is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs