Citation Nr: 1806874 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-35 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim for entitlement to service connection for a cervical spine disability. 2. Whether new and material evidence has been presented to reopen the claim for entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran was a member of the Army Reserves from May 31, 2000 to August 15, 2003. She served an initial period of active duty for training (ACDUTRA) from November 2000 to April 2001. 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 in San Juan, the Commonwealth of Puerto Rico. The Veteran's service connection claims for a cervical spine disorder and a lumbar spine disorder were originally denied in a September 2002 rating decision. After the Veteran submitted additional evidence, the denial was confirmed and continued in a June 2003 rating decision. That decision became final. The Veteran filed to reopen her lumbar spine claim, and in April 2009, the Board reopened the claim, but ultimately denied it in June 2010. Thus, the last final denial of the cervical spine claim is the June 2003 rating decision; the last final denial of the lumbar spine claim is the June 2010 Board decision. The Veteran filed a petition to reopen the previously denied claims in September 2010, which was denied by RO in May 2011. This appeal followed. FINDINGS OF FACT 1. In a June 2003 rating decision, RO denied service connection for a cervical spine disability on the basis that it was not related to service. The Veteran was notified of this decision, but she did not file a timely appeal, nor did she submit new and material evidence within a year of the rating decision. Thus, the June 2003 rating decision is final. 2. Evidence received since the June 2003 rating decision is either cumulative of the evidence at the time of the June 2003 rating decision or the evidence that is new, by itself or in connection with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim. Thus, the service connection claim for a cervical spine disability is not reopened. 3. In a June 2010 decision, the Board denied the Veteran's service connection claim for a lumbar spine disability. The Veteran did not appeal that decision to the Court of Appeals for Veterans Claims, and thus it is final. 4. Since June 2010, evidence raising a reasonable possibility of substantiating the claim for service connection for a lumbar spine disability has not been received. Thus, the petition to reopen the claim is denied. CONCLUSIONS OF LAW 1. The June 2003 rating decision denying the Veteran's claim for service connection for a cervical spine disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103, 20.1104 (2017). 2. The evidence received subsequent to the June 2003 rating decision is not new and material, and the claim for service connection for a cervical spine disorder is not reopened. 38 U.S.C. §§ 5108, 7104(b), 7105(c) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). 3. The June 2010 Board decision denying the Veteran's claim for service connection for a lumbar spine disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103, 20.1104 (2017). 4. The evidence received subsequent to the June 2010 Board decision is not new and material, and the claim for service connection for a lumbar spine disorder is not reopened. 38 U.S.C. §§ 5108, 7104(b), 7105(c) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims decided herein, and the duty to assist requirements have been satisfied. The Veteran's service treatment records and personnel records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. Further, for a claim to reopen, the duty to assist by affording a VA examination or obtaining a medical opinion does not attach until the previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). As the Board is not reopening these claims, there is no duty to assist that has been unmet. The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. II. Reopening a Claim Generally, a claim that has been finally denied in an unappealed RO decision or a 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 means 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 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." a. Cervical Spine Disability The Veteran's claim for a cervical spine disorder was denied in June 2003. That decision became final since the Veteran did not timely file a Notice of Disagreement. Thus, for this matter to be reopened, new and material evidence is required. At the time of the June 2003 rating decision, the record consisted of the Veteran's service treatment records and VA treatment records. While the Veteran's VA examination showed a slightly reduced range of painful motion and a diagnosis of cervical paravertebral myositis with polyradiculopathy, there was no medical evidence to indicate a relationship between the Veteran's cervical condition and her military service. Evidence received since the June 2003 rating decision includes VA treatment records and statements from the Veteran. A December 2002 treatment record noted that the Veteran reported that the pain began 2 years prior. The physician noted constant aching pain localized at posterior aspect of the neck, and that the sensation started "insidiously." VA treatment records revealed several pain management and physical therapy notes dated March, April, May, June, August, and November 2006. In those reports, the Veteran reported pain ranging from 6/10 to 8/10, with swelling. While a June 2006 therapy report indicated that the Veteran's cervical pain is secondary to disc changes and myofascial pain syndrome, none of the therapy session notes offered an opinion that relates her cervical spine condition to her military service. Prior to the June 2003 rating decision, the Veteran had contended that her cervical spine condition was caused by carrying heavy equipment and her participation in road marches during service. However, during a physical therapy session dated March 2006, the Veteran stated that her neck pain was due to her falling from a chair in 2001, while in service. While this contention is new, the Board finds that it is not material and does not raise a reasonable possibility of substantiating a claim. The Veteran's claim was previously denied because her current cervical spine condition was not attributable to an in-service related injury. The Veteran's new evidence continues to fail to demonstrate as such. Her contention that she fell off a chair in service does not specifically address how the injury affected her neck. There is no medical evidence to support this contention. While a service treatment record dated January 2001 documents the Veteran's report that she fell off a chair, the record indicates that the primary injury was to her ankle; no reference to any cervical injury or neck problems was made at that time. Further service treatment records do not reflect any symptoms or diagnosis of a neck injury in service. In sum, the Board finds that the evidence added to the record since June 2003 is new but not material. At best, the evidence is cumulative of the evidence of record, and even contradictory to the evidence previously considered by RO at the time of the June 2003 rating decision. It does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Even considering the holding in Shade v. Shinseki, 24 Vet. App. 110, to the effect that the VA regulation as to reopening a claim "must be read as creating a low threshold," there is still a minimum threshold. However, the new evidence does not reach that threshold. As such, the claim is not reopened. b. Lumbar Spine Disorder In June 2010, the Board denied the Veteran's service connection claim for a lumbar spine disorder after finding no relation between her condition and her military service. The June 2010 Board decision is the last final decision. Therefore, new and material evidence must be received for the matter to be reopened. At the time of the Board decision in June 2010, the Veteran was diagnosed with clinical left L4, S1 lumbar polyradiculopathy, straightening of the lumbar lordosis due to muscle spasms, lumbar strain, lumbar spondylosis, and lumbar bulging disc formation at L5/S1. She contended that the lumbar pain began in November and December 2000 after being required to carry heavy equipment weighing 100 pounds during training. Her service treatment records do not reflect any in-service complaint of low back pain. The Veteran's service treatment records note that in January 2001, she sought medical treatment after falling off a chair. However, as discussed above, the physician's notes indicate that the injury involved her ankle. There is no specific treatment or diagnosis recorded for a low back disability at the time of the incident in question or at any other time during the Veteran's active duty. Post service, VA treatment records indicate that the Veteran was treated for chronic low back pain in April 2003, specifically for myofascial pain syndrome. The record also consisted of Chronic Pain Program records dated January 2006, where the Veteran stated that she fell off a chair in January 2001. The January 2006 record also documented that the Veteran had completed eight sessions of physical therapy without any improvement of her back or neck pain. The Veteran has been afforded several VA examinations in connection with her low back. The first examination, dated June 2002, reported that the Veteran had been experiencing back pain since November and December 2000 after carrying heavy duffle bags on long marches. There was no indication of trauma. The examiner noted that the Veteran made no visits to sick call due to lumbar pain. The Veteran reported that in April 2001, she went to her private physicians and was treated with muscle relaxants. After examination, she was diagnosed with clinical left L4, S1 lumbar polyradiculopathy and straightening of the lumbar lordosis due to muscle spasms. During the Veteran's July 2009 VA examination, she reported hurting her lumbar spine in 2000 while performing training, referring to heavy lifting. After examining the Veteran, the examiner diagnosed the Veteran with lumbar strain, lumbar spondylosis, and lumbar bulging disc formation at L5/S1. The examiner then stated that these conditions are less likely than not related to service, as there was no evidence, including radiological evidence, of treatment for such areas within active service or one year thereafter. After additional medical evidence related to the claim was submitted, the RO requested an additional opinion from the July 2009 examiner. After reviewing the claims file and the additional evidence, the examiner stated that the opinion had not changed. Here, the examiner reported that the Veteran's medical history does not show evidence of treatment in the lumbar spine and that there was no evidence of lumbar treatments during service or the year thereafter. The examiner stated that the opinion remained the same. Additionally, pursuant to the April 2009 Board remand, a psychiatric examination was conducted to determine whether or not the Veteran's service connected psychiatric disorder is related to her low back pain. The examiner found that while the Veteran did suffer from a major depressive disorder, with moderate to severe symptomatology, she did not meet the criteria for psychiatric pain disorder. The examiner stated that this was a different and distinct condition with signs and symptoms not found in the Veteran. The examiner also stated that the Veteran's psychiatric condition is not related to her back condition. The Veteran developed a major depressive disorder after an abdominal muscle tear. The examiner also stated that her back pain manifested more than one year after discharge from service and therefore, the Veteran's major depressive disorder was not related to her back condition or pain. Since the last Board decision in June 2010, the Veteran has submitted VA treatment records from Pain Program for management of chronic low back pain. A February 2006 record reported that the Veteran's low back and cervical pain was secondary to disc changes and Myofascial Pain Syndrome and that the pain was improved with medication. This medical assessment was previously of record and considered at the time of the prior denial. Therefore, the evidence is redundant and is not new evidence. Additionally, it does not establish a link between the current disability and the Veteran's service and does not create a reasonable possibility of substantiating the claim. Thus, it is not material. The Veteran has not submitted any new medical opinion offering a positive nexus between the Veteran's lumbar disability and her military service, either from her fall from the chair or her training requirements. The Board acknowledges that the threshold for reopening is low, but it is a threshold nonetheless, and here, the evidence obtained since the Veteran's claim was previously denied simply does not approach that threshold. As such the claim is not reopened. (CONTINUED ON NEXT PAGE) ORDER New and material evidence has not been received to reopen a claim for service connection for a cervical spine disability, and the petition to reopen is denied. New and material evidence has not been received to reopen a claim for service connection for a lumbar spine disability, and the petition to reopen is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs