Citation Nr: 18144006 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 14-24 660 DATE: October 22, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to compensation under 38 U.S.C. § 1151 for a spinal condition due to spinal anesthesia during hernia surgery performed at the VAMC in Kansas City, MO in August 1977 is denied. FINDINGS OF FACT 1. By a rating action in October 1987, the RO denied the Veteran's claim of entitlement to compensation, under 38 U.S.C. § 1151, for a spinal condition due to spinal anesthesia during a hernia surgery performed at a VA facility in August 1977. The Veteran did not perfect an appeal of that decision, and the decision became final. 2. The evidence received since the October 1987 rating decision is cumulative or redundant, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to compensation under 38 U.S.C. § 1151 for a spinal condition due to spinal anesthesia during a hernia surgery performed at a VA facility in August 1977. CONCLUSIONS OF LAW 1. The October 1987 rating decision, which denied entitlement to compensation under 38 U.S.C. § 1151 for a back condition as a result of anesthesia during a hernia operation at the VAMC in Kansas City, MO in August 1977, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to compensation under 38 U.S.C. § 1151 for a back condition as a result of anesthesia during a hernia operation at the VAMC in Kansas City, MO in August 1977 have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1976. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from a January 2011 rating decision, which denied the Veteran’s attempt to reopen his claim of entitlement to service connection under the provisions of 38 U.S.C. § 1151 for a spinal condition due to surgical anesthesia during surgical procedure at the VAMC in August 1977. In the written brief presentation, dated in May 2018, the Veteran’s representative noted that virtually all mail to the Veteran has been returned and several Clear reports have been issued without resulting in a new address for the Veteran. Therefore, the representative requests that the Veteran’s case be remanded to the RO in order to take additional steps to locate the Veteran and provide adequate notice and assistance with his claim. Review of the claims-file reveals that the Veteran notified the RO of the change in his address in June 2011, and multiple occasions since, with most recent change in February 2013. The evidence of record suggests that the Veteran has moved and failed to inform either VA or his representative of his new address. VA has made several attempts to locate the Veteran’s address. There is simply no practical way for VA to contact the Veteran at the present time, and continued attempts to do so would be futile. "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has failed to respond to correspondence mailed to his last reported address. He has failed to report to his scheduled hearing. He has provided no good cause for his refusal to cooperate. Therefore, it is concluded that VA has made every effort to obtain the requested information; the inability to obtain this information has been solely the result of the Veteran's refusal to cooperate. 1. Whether new and material evidence has been received to reopen a claim of entitlement to compensation under 38 U.S.C. 1151 for a spinal condition claimed as a result of surgical anesthesia during surgery performed at a VA hospital in 1977 The Veteran seeks to reopen his previously denied claim for entitlement to compensation under 38 U.S.C. § 1151 for a back condition due to spinal anesthesia for hernia surgery performed at a VA hospital on August 30, 1977. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that 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. § 5108. New evidence is defined as evidence not previously submitted to 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran initially filed a claim of entitlement to compensation for a back condition under 38 U.S.C. 1151 for a back condition as a result of spinal anesthesia during hernia surgery performed at the VAMC in Kansas City, Missouri in August 1977. The evidence at the time of the October 1987 rating decision consisted of a medical certificate, dated in August 1978, indicating that the Veteran had a left inguinal herniorrhaphy done on August 30, 1977; since then and especially in the last 2 weeks, he had been having problems in the area of the surgery. Soft and hard spots. The examiner stated that he was unable to find any reason for the Veteran’s pain. His herniorrhaphy appeared to be well-healed. Of record were VA treatment reports indicating that the Veteran was seen on August 20, 1977, indicating that he recently failed the army physical due to left inguinal hernia; he was diagnosed with left indirect inguinal hernia. On August 24, 1977, he was admitted to the hospital for repair of left indirect inguinal hernia. A VA hospital summary reflects that the Veteran underwent a left inguinal herniorrhaphy on August 30, 1977; his postoperative course was complicated by a headache following his spinal anesthesia. It was noted that his headache got progressively better and was relieved by remaining in supine position. He was discharged from the hospital on September 6, 1977. Also submitted in support of the Veteran’s claim was a medical certificate, dated in December 1977, indicating that the Veteran was seen for complaints of pain in the back of the neck; he reported having been in a car accident that morning. The assessment was cervical muscle strain. On the occasion of a VA examination in March 1980, the Veteran reported having had a left inguinal herniorrhaphy at the VA hospital in Kansas City, MO in 1976. Examination revealed a scar, postoperative left inguinal herniorrhaphy, healed with no symptoms and no residuals. The diagnosis was scar, PO left inguinal herniorrhaphy, no symptoms and no residuals. By a rating action in October 1987, the RO denied the Veteran’s claim for compensation under 1151 based on a finding that there was no additional disability resulting from VA authorized hospitalization, medical or surgical treatment, vocational rehabilitation or examination. The Veteran did not file an NOD with that determination within one year of the notification thereof in October 1987. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the October 1987 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claim. In a statement in support of claim (VA Form 21-4138), dated June 10, 2009, the Veteran indicated that he was seeking to establish a claim for service connection for a back condition resulting from damage to his spinal cord from anesthesia during a surgical procedure at a VA hospital in 1977. Submitted in support of the claim were VA progress notes dated from June 2006 to September 2014 which show that the Veteran received treatment for chronic back pain. During a clinical visit on August 7, 2006, the Veteran denied any back pain; although he reported a remote history of a spinal injury many years ago in Kansas. A September 2009 treatment note reported that the Veteran was being seen to establish care for back pain. During a clinical visit in September 2012, it was noted that the Veteran was seen for follow up evaluation of low back pain; he reported that his back had been bothering him since he fell off a ladder and injured his back in 1986. The assessment was low back pain. Again, in May 2013, it was noted that the Veteran has had low back pain since falling off a ladder in 1986, and he had been receiving social security for such disability. When seen in October 2013, the Veteran reported that his back was damaged when he was given anesthesia before hernia surgery; the assessment was chronic low back pain, status post anesthesia needle during previous surgery. To the extent that the Veteran again asserts he has a low back disability that is related to anesthesia administered prior to his hernia surgery in August 1977, these assertions are not new, as he made such assertions prior to the October 1987 rating decision. The VA treatment records subsequent to the October 1987 rating decision were not of record at the time of that decision and are, therefore, new. However, while such records note the Veteran's back complaints and show an assessment of chronic low back pain, status post anesthesia needle during previous surgery, they do not corroborate that the current back complaints did, in fact, result from anesthesia during the hernia surgery in August 1977. The assessment was based on the Veteran's own reports of the alleged injury. Accordingly, such statement has no probative value in this matter. In fact, these treatment reports also indicate that the Veteran had reported chronic low back pain due to a fall off a ladder in 1986. The Veteran's claim for compensation for a low back disability under 38 U.S.C. § 1151 was previously denied based essentially on a finding that there was no additional disability resulting from VA authorized hospitalization, medical or surgical treatment, vocational rehabilitation or examination. Consequently, for new evidence to be material, it must tend to relate the Veteran's back disability to spinal anesthesia prior to hernia surgery in August 1977. While the VA treatment records are new evidence (in that they were not previously associated with the record), they are not material evidence. They do not tend to corroborate that the Veteran's claimed injury occurred while he was undergoing hernia surgery in August 1977. Therefore, the additional records received do not relate to the unestablished fact necessary to substantiate the claim; do not raise a reasonable possibility of substantiating the claim; and are not material. Accordingly, the Board finds that new and material evidence has not been received, and the claim for compensation for additional disability, to specifically under 38 U.S.C. § 1151, for a back condition as a result of anesthesia during a hernia operation at the VAMC in Kansas City, MO in August 1977, may not be reopened. 38 C.F.R. § 3.156 (a) (2017). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs