Citation Nr: 0705469 Decision Date: 02/26/07 Archive Date: 03/05/07 DOCKET NO. 05-35 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for mechanical lumbosacral strain with right leg pain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Boominathan, Associate Counsel INTRODUCTION The veteran had active service from February 1969 to December 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In September 2006, the veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. In a September 2004 rating decision, the RO declined to reopen a claim for service connection for mechanical lumbosacral train with right leg pain. The RO notified the veteran of this decision and of his procedural and appellate rights in a September 2004 letter; however, the veteran never appealed that decision and it became final. 2. Evidence presented since the September 2004 rating decision raises a reasonable possibility of substantiating the claim of service connection for mechanical lumbosacral strain with right leg pain. 3. There competent medical evidence of record does not show that the current mechanical lumbosacral strain with right leg pain is related to service. CONCLUSIONS OF LAW 1. The September 2004 rating decision that declined to reopen the claim for service connection for mechanical lumbosacral strain with right leg pain is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the September 2004 rating decision is new and material and the veteran's claim is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (2006). 3. Mechanical lumbosacral strain with right leg pain was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) on November 9, 2000. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005). The legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). These regulations establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits. As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should give us everything you've got pertaining to your claims. In the instant case, the veteran received complete VCAA notification after the initial unfavorable agency decision in April 2005. The RO provided the veteran letter notice to his claim to reopen in February 2005 and March 2006 letters, informing him that he could provide evidence or location of such and requested that he provide any evidence in his possession. The notice letters specifically notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send records pertinent to his claim, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. It is the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman 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. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim and notice of the type of evidence necessary to establish a disability rating and effective date in a May 2006 letter. Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes 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 present case, the veteran received notice as to the evidence and information required to reopen the claim and establish service connection that were found insufficient in the previous denial in a February 2005 letter. VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2006). In the present case, there are VA and private treatment records of file. Additionally, the veteran has had VA examinations. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis New and Material Evidence In the present claim, the veteran seeks to reopen his claim for service connection for mechanical lumbosacral strain with right leg pain. In support of his claim, the veteran testified at a September 2006 hearing that he injured his back on May 21, 1970 in a car accident. He stated that he woke up in the hospital, but did not receive any subsequent treatment for his back in-service. After discharge, he testified that he received treatment, but does not know the location of the records or the records were not retained. He stated that he had back surgery in 1987 due to an on the job injury, however, this was an aggravation of the injury received in-service. Currently, he reported sciatica in the legs and low back pain; he testified that the pain he currently experiences is the same as the pain he experienced in-service. The veteran's claim for service connection was originally denied in a January 1978 rating decision. In a January 1998 rating decision, the RO declined to reopen the service connection claim as new and material evidence had not been received. The veteran's claim to reopen was last denied in a September 2004 rating decision. The RO denied reopening the veteran's claim for service connection for mechanical lumbosacral strain with right leg pain on the basis that the evidence submitted did not constitute new and material evidence as it did not establish a relationship between the veteran's back condition and service. The RO notified the veteran of this decision in September 2004; he did not file a notice of disagreement specific to this decision within one year of the date of notification of the rating decision. Consequently, that decision is final based on the evidence of record at that time. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, when a claim is the subject of a prior final denial, it may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302(a) (2006). 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 it on a de novo basis. Manio v. Derwinski, 1 Vet. App 145 (1991). Effective from August 29, 2001, the regulations defining "new and material evidence" were revised and clarify the types of assistance the VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(b). These specific provisions are applicable only to claims filed on or after August 29, 2001. As the veteran filed his claim seeking to reopen in November 2004, the Board applied the revised provisions. Under the revised regulations, new evidence means existing 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 claims. 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 claims sought to be reopened, and must raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a) (2006). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Though the RO reopened the veteran's service connection claim in the September 2005 statement of the case (SOC), the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Evidence considered at the time of the September 2004 rating decision included private treatment records from 1976 and 1977 showing low back pain and pain in the extremities with no antecedent injury with x-rays were within normal limits; and private treatment records from 1986 onwards showing pain in the L5 disc, suggesting a chronic and perhaps still active right S1 radiculopathy. A 1986 record shows a workplace injury and that the veteran's pain began in the past four to five years. A 1986 surgical record shows that the veteran had a right fifth lumbar disk extrusion. A 1997 private treatment record shows that the veteran fell, throwing his upper back out, and strained his back at work in April 1998. Evidence received since the September 2004 rating decision include statements from Mr. S & Mr. C stating that the veteran was in a car accident and he could not breath after the in-service accident, and March 2006 statements from his mother, father, and brother that the veteran had back and leg pain after he returned from the Navy. Also received after the September 2004 rating decision are service medical records showing no injury to the back, and a November 2004 MRI with impressions of a small focal protrusion of the annulus into the left neural foramen at L4- 5 and marked L5-S1 disc narrowing. Additionally, the veteran submitted a social security document reflecting his earnings from 1966 forward. The veteran also had two VA examinations after the September 2004 rating decision. In a February 2005 VA examination, the examiner reviewed the veteran's medical history. The impression was moderate degenerative changes of the lumbosacral spine at L5-S1. The examiner stated that it is not at least as likely as not that the veteran's current back problem is related to military service. In an undated addendum to the February 2005 VA examination, the examiner opined that the veteran's current back problems are more likely related to his work injuries that he was seen for in the mid to late 1970's. In a September 2005 VA examination, the examiner reviewed the medical records, claims file, and buddy statements. The examiner stated that the veteran had an accident in-service that was documented on previous examination and the buddy statements verify the history given by the veteran. The examiner stated that the November 1972 separation examination did not document any back symptoms, private medical records showed low back pain in January 1978, and additional private medical records demonstrated low back symptoms with various employment activities in 1976. The examiner concluded that it is more likely than not that the veteran's present back symptoms are not related to his service time. In the present claim, all the evidence submitted is new as it was not previously submitted. In addition, this evidence raises a reasonable possibility of substantiating the veteran's claim of service connection for mechanical lumbosacral strain with right leg pain as it relates to an unestablished fact necessary to substantiate the claim - namely, whether the current back condition is related to service. The Board finds that this evidence raises a reasonable possibility of substantiating the claim and is not cumulative of the evidence submitted prior to the September 2004 rating decision. Therefore, the claim is reopened and to this extent only, the claim is granted. Service Connection The veteran seeks service connection for mechanical lumbosacral strain with right leg pain. As previously noted, the veteran testified at a September 2006 hearing that he injured his back on May 21, 1970 in a car accident. He stated that he woke up in the hospital, but did not receive any subsequent treatment for his back in-service. After discharge, he testified that he received treatment, but does not know the location of the records or the records were not retained. He stated that he had back surgery in 1987 due to an on the job injury, however, this was an aggravation of the injury received in-service. Currently, he reported sciatica in the legs and low back pain; he testified that the pain he currently experiences is the same as the pain he experienced in-service. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2006). Service connection may be also granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102 (2006). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service medical records do not show a complaint or finding of back pain or a back injury. A note from a private physician stated that he saw the veteran on July 1976 for numbness and pain down his right leg, and that on examination there was nothing definite that could be made out as it had been of long standing. A March 1977 private treatment record showed that the veteran was seen in March 1977 for evaluation of low back and extremity pain. The physician reported no antecedent injuries and that the veteran has had intermittent pain radiating into the right thigh for the past six to twelve months. The diagnosis was recurrent mechanical low back pain. A December 1977 letter from a private physician showed that the veteran was seen in February 1977 for right leg pain. Private treatment records from 1986 onwards show pain in the L5 disc; EMG findings were minimal and suggestive of a chronic and perhaps still active right S1 radiculopathy. Private records show a workplace injury in 1986, a fall injuring his upper back in 1997, and a back strain at work in April 1998. A 1986 surgical record shows that the veteran had a right fifth lumbar disk extrusion. A November 2004 MRI showed impressions of a small focal protrusion of the annulus into the left neural foramen at L4-5 and marked L5-S1 disc narrowing. There are also October 2004 statements from Mr. S & Mr. C stating that the veteran was in a car accident during service and could not breathe after the accident, and March 2006 statements from his mother, father, and brother that the veteran had back and leg pain after returning from the Navy. Additionally, the veteran submitted a social security document reflecting his earnings from 1966 forward. There are two VA examinations of record. In a February 2005 VA examination, the examiner reviewed the veteran's medical history. The impression was moderate degenerative changes of the lumbosacral spine L5-S1. The examiner stated that it is not at least as likely as not that the veteran's current back problem is related to military service. In an undated addendum to the February 2005 VA examination, the examiner opined that the veteran's current back problems are more likely related to his work injuries that he was seen for in the mid to late 1970's. In a September 2005 VA examination, the examiner reviewed the medical records, claims file, and buddy statements. The examiner stated that the veteran had an accident in-service that was documented on previous examination and the buddy statements verify the history given by the veteran. The examiner stated that the November 1972 separation examination did not document any back symptoms, private medical records showed low back pain in January 1978, and additional private medical records demonstrated low back symptoms with various employment activities in 1976. The examiner concluded that it is more likely than not that the veteran's present back symptoms are not related to his service time. In the present claim, the Board concludes that service connection for mechanical lumbosacral strain with right leg pain is not warranted. Though there is no record of the accident where the veteran injured his back of record, the veteran's statements and the lay statements from his friends and his family are consistent as to the vehicle accident in- service. Therefore, the Board accepts that the veteran had a vehicle accident in-service. Next, there is medical evidence of a current diagnosis of mechanical lumbosacral strain with right leg pain. However, there is no medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson, 12 Vet. App. at 253; see also Pond, 12 Vet. App. at 346. There are two medical opinions of record, specifically the February and September 2005 VA examinations. Both examiners stated that it was more likely than not that the veteran's present back symptoms are not related to his service time. The February 2005 VA examiner also provided, in an undated addendum, that the veteran's current back problems are more likely related to his work injuries that he was seen for in the mid to late 1970's. Though the Board accepts that the veteran was involved in a vehicle accident in service, the Court has held that a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In the present claim, the February 2005 VA examiner has stated that the current back disability did not result from the injury in-service, but rather is more likely due to the 1970's work injuries. See Grottveit v. Brown, 5 Vet. App. 91 (1993) (Where the determinative issue is medical in nature, competent medical evidence is required). The Board notes the veteran's argument that his current back injury is due to service in some fashion, and notes the opinions of Mr. S., Mr. C., and the veteran's mother, father, and brother. This determination, however, is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Board has considered the veteran's assertions, and those of his friends and family, they do not outweigh the competent medical evidence of record which stated that the current back condition is not due to any in-service injury or to service in any way. A competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In summary, though there is evidence of an in-service accident and a current back disability, there is no medical evidence of a relationship between the current disability and the accident. Therefore, service connection for mechanical lumbosacral strain with right leg pain is not granted. In making this decision, the Board has considered the benefit- of-the- doubt doctrine, but it does not apply here because the evidence is not in approximate balance. See Gilbert, 1 Vet. App. at 57-58; 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2006). ORDER New and material evidence has been presented to reopen a claim for service connection for mechanical lumbosacral strain with right leg pain, and to this extent only, the appeal is granted. Service connection for mechanical lumbosacral strain with right leg pain is denied. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs