Citation Nr: 1752582 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-33 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Marine Corps from June 1976 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2014, the Veteran requested a Travel Board hearing in connection with the appeal; however, in February 2015, the Veteran withdrew the hearing request and asked to proceed with the appeal without a hearing. 38 C.F.R. § 20.704(e) (2017). FINDINGS OF FACT 1. In the July 2010 rating decision, the RO reopened and denied service connection for a low back disability on the basis that congenital scoliosis existed prior to service and was not aggravated by service, and the current degenerative joint disease and degenerative disc disease were due to post-service back injuries and post-service strenuous labor jobs. 2. Evidence received since the July 2010 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to a previously unestablished fact of a current low back disability caused or aggravated by active service. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying service connection for a low back disability became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and to establish entitlement to the underlying claim for the benefit sought by the claimant. The claimant must also be notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim. The Court further held that, in the context of a claim to reopen, VA look at the bases for the denial in the prior decision and describe what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the January 2012 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish entitlement to the underlying claim for service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. The January 2012 notice letter satisfied Kent notice requirements by notifying the Veteran of the reason for the prior final denial and the evidence needed to reopen the previously denied claim. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. New and material evidence has not been received to reopen service connection for a low back disability; therefore, there was no duty to provide a VA examination or medical opinion under 38 C.F.R. § 3.159(c)(4)(iii), and none was provided. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. New and Material Evidence Legal Criteria 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 should take cognizance of 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. Reopening Analysis for Service Connection for a Low Back Disability In the July 2010 rating decision, the RO reopened and denied service connection for a low back disability on the merits on the bases that the evidence showed that a low back disability was not incurred in or aggravated by active service. The RO reasoned that the evidence, which included the June 2010 VA examination report with a medical opinion, showed that congenital scoliosis existed prior to service and was not aggravated by service, and that degenerative joint disease and degenerative disc disease were due to post-service back injuries and post-service strenuous labor jobs. In July 2010, the Veteran was notified of that rating decision and provided notice of procedural and appellate rights. Because the Veteran did not appeal the July 2010 rating decision within one year of that notice, and no additional evidence was received within one year of that notice, the July 2010 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Veteran filed the current claim to reopen. After reviewing the evidence received since the July 2010 rating decision, the Board finds that it does not qualify as new and material evidence, so is not sufficient to reopen service connection for a low back disability. VA treatment records dated from 2010 to 2012 that were added to the record only show continued treatment for chronic back pain attributable to diagnoses of degenerative disc disease, arthritis, and scoliosis. Written lay statements from the Veteran dated in September 2012 to November 2013 continue to assert that a back injury sustained during service aggravated a pre-existing back disability, and that the Veteran has had continued low back pain and treatment since being medically discharged from service due to the back disability. Similar evidence was considered at the time of the July 2010 rating decision. Because there has been no new evidence suggesting aggravation of pre-existing (i.e., congenital) scoliosis by service or a link between the lumbar degenerative disc disease and/or lumbar arthritis and service since the July 2010 rating decision, other than the Veteran's own lay assertions, which were previously considered and determined to lack competence, new and material evidence has not been received since the prior final rating decision in July 2010. Thus, the evidence received since the July 2010 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to the previously unestablished facts of pre-existing scoliosis or that the pre-existing scoliosis was not aggravated by service. The additional evidence shows that lumbar degenerative disc disease and lumbar arthritis were not manifested during service or for many years after service, and are not otherwise related to service. For these reasons, the Board finds that the evidence received since the July 2010 rating decision does not raise a reasonable possibility of substantiating the claim for service connection for a low back disability; therefore, the claim for service connection for a low back disability will not be reopened. ORDER New and material evidence not having been received, reopening of service connection for a low back disability is denied. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs