Citation Nr: 1751227 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-40 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. ORDER Reopening of the claim of entitlement to service connection for a low back disorder is denied. FINDINGS OF FACT 1. In a June 1979 rating decision, service connection for a low back disorder was denied; at that time, the evidence established a current lumbar vertebral disability and an in-service injury affecting the low back; however, the evidence did not substantiate a nexus between the in-service injury and the current disability. 2. The evidence received since June 1979 does not relate to the unestablished fact of nexus and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1979 rating decision is final with respect to entitlement to service connection for a low back disorder. 38 U.S.C.A. § 7105 (West 2014). 2. The criteria for reopening or reconsideration of the claim of entitlement to service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from October 1974 to October 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the RO in St. Louis, Missouri. In May 2017, the Veteran and his spouse presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims file. In April 2014 and September 2016, the Board remanded this issue to afford the Veteran a hearing. The appeal has since been returned to the Board for further appellate action. The RO denied a claim for service connection for a low back disorder in a June 1979 rating decision. Although notified of the RO's decision and of his right to appeal, the Veteran did not initiate an appeal of that decision (see 38 C.F.R. § 20.200 (2016)). The June 1979 rating decision is the last final disallowance on any basis. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998) (the Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Veteran requested to have the previously denied claim reopened in April 2009. New evidence is defined as evidence not previously submitted to agency decision makers and material evidence is 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 final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it 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). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). To reopen a claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. Where a prior denial was based on lack of current disability and nexus, newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 100 (2010). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The term "service connection" applies to disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Entitlement to service connection requires (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and (3) medical evidence of a nexus between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the time of the June 1979 rating decision, the evidence established Shedden element (1). The evidence of record included a VA examination showing a diagnosis of spondylosis (degenerative changes; see Dorland's Illustrated Medical Dictionary 1780 (31st ed. 2007)) at multiple levels of the lumbar spine, and lumbosacral spurs. The evidence of record in June 1979 also substantiated element (2). When examined at service entrance, the Veteran was noted to have a mild scoliosis of the dorsal spine (thoracic). The Veteran was treated for low back pain on November 11, 1974, with no known trauma. The impression was a questionable muscle strain. He was seen in the Emergency Department on June 30, 1976, after being crushed by a forklift. In addition to chest injuries, he sustained bilateral pelvic fractures. He was treated on August 19, 1976, for left hip pain located at the acetabulum (the large cup-shaped cavity on the lateral surface of the hip bone in which the head of the femur articulates; see Dorland's Illustrated Medical Dictionary 12 (31st ed. 2007)). X-rays of the hip showed an "incidental" finding of lumbosacral spondylolisthesis. An August 8, 1977, Orthopedic Clinic Note reveals complaint of low back pain with intensive use of the back. When examined at service separation on August 8, 1977, the Veteran's spine was normal. He reported no history of, or current, recurrent back pain. While the evidence of record in June 1979 substantiated elements (1) and (2), it did not substantiate element (3), in that there was no relationship established between the post-service lumbar vertebral disorder and any injury in service. Evidence received since the June 1979 decision includes private treatment records and additional statements from the Veteran and his representative. While copies of the service treatment records appear to have been submitted by the Veteran, these were already of record in June 1979 and do not provide a basis for reconsideration of that claim. The private treatment records show that the Veteran sustained a work-related back injury in 2001. A December 5, 2001, Clinical Note reveals the examiner's description that "he was in his usual state of health until this past Friday, November 30, 2001, when he was lifting some copper cabling and had some pain in his low back." The note continues: "He went back to work on Monday, December 3, 2001. He was having more pain to the point where he turned white in the face because of the pain. His employer asked if he was okay. He did finish out the day and then presented to the Emergency Room on December 4, 2001, with continued pain in the back. He states x-rays were taken which did not show anything significant." A December 4, 2001, MRI revealed a combination of degenerative disc disease and degenerative spondylosis at L1-L2, slightly eccentric to the right, and effacement of the thecal sac. There was a combination of degenerative disc disease and degenerative spondylosis at L5-S1, with a Grade I anterior spondylolisthesis at L5, and S1 degenerative end plate changes and degenerative facet arthropathy. There was no focal disc herniation. A February 26, 2008, Clinical Note reveals complaint of back pain going down the right leg, consistent with a radiculopathy. The Veteran also reported irritation of the right S1 joint. The additional post-service treatment records are not new and material for purposes of reopening of the claim, as they do not address the question of whether the Veteran has current residuals of the in-service injury - the central question underlying the claim for service connection. They establish symptoms and lumbar spine disease since service, but they do so in the context of a post-service back injury. Therefore, they do not relate to the unestablished fact of a nexus between any current disability and the in-service injury of June 1976, or any other episode of symptoms in service. The Veteran's statements and testimony are essentially cumulative and redundant of evidence previously of record. They identify the same in-service injury as was previously documented. At the Board hearing, the Veteran was provided an opportunity, and 60 days following the hearing, to submit additional evidence in support of his claim, but he did not do so. In the absence of a reopened claim, there is no duty to obtain a medical opinion. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for a low back disorder has not been received. As such, the June 1979 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting or identifying new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs