Citation Nr: 0730627 Decision Date: 09/28/07 Archive Date: 10/09/07 DOCKET NO. 04-14 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether there is new and material evidence has been received to reopen a service connection claim for a lower back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran had active military service from September 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The veteran testified before the undersigned in April 2007. The veteran also submitted additional evidence in August 2007, along with a statement waiving initial consideration of such evidence by the RO. FINDINGS OF FACT 1. In February 1984, the RO denied the veteran's service connection claim for lower back disability on the basis that no residuals from an in-service back injury were shown at the time of discharge from service or on VA examination in July 1974. The veteran filed a notice of disagreement but did not file a timely substantive appeal following the issuance of a statement of the case following proper notice; the February 1984 decision became final. 2. Evidence associated with the record subsequent to the February 1984 rating decision either duplicates or is cumulative of evidence already of record, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 1984 decision denying service connection for lower back disability (characterized as lumbar strain) is final. 38 U.S.C.A. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19. 192 (1983). 2. Evidence received since the February 1984 RO decision denying service connection for lower back disability is not new and material, and the veteran's claim has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claims. Kent v. Nicholson, 20 Vet. App. 1 (2006), addresses notice requirements specific to new and material claims. Essentially, under Kent, the veteran must be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence. Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. In the present case, the veteran was provided with the notice required by the VCAA in an April 2006 letter. This letter informed the veteran to send any pertinent evidence in his possession, informed him of the evidence required to substantiate the claim, the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf. He was also given the requirements set forth above in Kent. Therefore, the Board finds that he was provided with the notice required by the VCAA. All available evidence pertaining to the veteran's claim has been obtained. The claims folder contains the veteran's service records, service medical records, private medical records, VA medical records, buddy statements, and statements and testimony from the veteran and his spouse in support of his claim. The veteran was also given a VA examination with etiological opinion dated in May 2006. 38 C.F.R. § 3.159. The Board finds that VA has satisfied its duty to notify and to assist. All obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the veteran in the development of the facts pertinent to his claim. To the extent the Board is denying the veteran's claim, no additional disability ratings or effective dates will be assigned, so there can be no possibility of any prejudice to the veteran under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, it is not prejudicial to the appellant for the Board to proceed to finally decide the issue discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2006) (harmless error). For the above reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide the issues discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2006) (harmless error). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the veteran or on his behalf. The Board will summarize the relevant evidence on what the evidence shows or fails to show on the veteran's claim. Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (discussion of all evidence by Board not required when Board supports decision with thorough reasons and bases regarding relevant evidence). II. New and Material Evidence to Reopen By way of history, the claims folder shows that the veteran filed a service connection claim for residuals of an injury to the back in December 1973. The RO denied the veteran's service connection in an April 1974 rating decision. The veteran applied to reopen his service connection claim (characterized as lumbar strain) in December 1983, but was denied in a February 1984 rating decision. The veteran filed a notice of disagreement and was issued a statement of the case in March 1984; however, the veteran did not file a timely substantive appeal. The RO's denial of the veteran's service connection claim for lower back disability (characterized as lumbar strain) in February 1984 is final. 38 U.S.C.A. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19. 192 (1983). While the RO determination in February 1984 is final, if new and material evidence is presented or secured with respect to this claim, which have been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002). By regulation, for purposes of the veteran's request, 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 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. 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). The evidence at that time of the February 1984 included the service medical records, VA medical records, including examinations conducted in July 1974, January 1977, and August 1983, and statements from the veteran in support of his claim. Service medical records showed no abnormal findings involving the spine upon entry into service. Health record report dated in October 1970 noted lumbosacral strain. No follow-up treatment revealed. Separation examination report dated in April 1972 indicated normal clinical evaluation of the spine. No abnormal findings related to the back were noted on separation examination. A July 1974 VA examination noted complaints from the veteran that his lumbar sprain in service prevented him from doing his job to the fullest because much lifting. VA special orthopedic and surgical evaluation of the lumbar spine indicated that curve was normal. No tenderness was noted with percussion. All spinous processes were straightly aligned. No definite paravertebral muscular spasm noted. Range of motion tested noted flexion to 110 degrees, extension to 30 degrees, lateral flexion to 45 degrees, and rotation to 45 degrees. No diagnosis given. In addition, no diagnosis involving the lumbar spine was given at the January 1977 VA examination. An August 1983 VA examination report noted the veteran stating that he had a lumbar strain in service without any particularly injury. The only incident he could recall in service, relating to his lower back, was feeling pain in his back after changing a tire. He had an auto accident in 1978, and again hurt his back on that occasion. Examination revealed tenderness in the right sciatic notch. Straight leg raising on the right was positive. Forward flexion was limited to 80 degrees, lateroflexion to 20 degrees, backward flexion to 15 degrees and rotation to 15 degrees. The diagnosis was chronic low back strain with right sciatica. In a December 1983 written statement, the veteran indicated that he injured his back in October 1970 in Vietnam. He had severe lumbar sprain while changing a tire on a Jeep. He was hospitalized at that time. He indicated that since that time, he had seen numerous doctors and was told essentially that his current back problem was "preexisting for a long time." In a February 1984 rating decision, the RO denied the veteran's service connection claim for lower back disability based on a finding that no residuals from the in-service lumbar strain were shown at the time of discharge from service or on examination in July 1974. The lumbar strain treated in service was considered acute and transitory. The veteran's current back problems were not shown to be related to service. The Board finds that the evidence received since the February 1984 rating decision is cumulative of other evidence of record and does not raise a reasonable possibility of substantiating the claim as new and material evidence sufficient to reopen the claim has not been received. A number of documents were submitted and incorporated into the record subsequent to the last final decision, including VA treatment records, private treatment records, a VA examination report dated in May 2006, buddy statements, and testimony and statements from the veteran and his wife. A November 1985 VA clinical record noted pain in the lumbar region. A June 1986 VA clinical record noted treatment for lower back pain and right leg pain. Complaints of back pain are also shown in VA examination reports dated in May 1987 and June 1990. While new, the VA medical records from 1985 through 1990 do not show that the veteran's in-service lumbar strain is chronic in nature or that his current lower back disability is otherwise related to service. As such, this evidence is not material. The private treatment records dated from 1980 through 1983 also are new evidence. However, these records are not material as they do not show that the veteran's in-service lumbar strain is chronic in nature or that his current lower back disability is otherwise related to service. While the records show that the veteran was treated for lumbar lordosis and lumbar spasms in the early 1980s, these findings are not shown on separation examination or on VA examinations in July 1974 and January 1977. A VA examination was performed in May 2006. The physician indicated in the report that the veteran's claims file was reviewed and a detailed summary of the relevant medical history was provided. The report also noted that the veteran stated that he had ongoing back problems since service. He stated that he sought treatment for his back problems within six months after service from a Dr. Battle in Texas. The veteran also discussed the motor vehicle accident in 1978, but could not recall what kind of treatment he received. Following examination, the physician diagnosed chronic low back pain with mild disc space narrowing, not service- connected. The physician opined that based on a review of the claims file, the veteran's current low back pain is neither caused or aggravated by his service-connected injury. The physician explained that the veteran was seen in service and diagnosed with low back strain; however, the discharge examination and subsequent examinations done after were entirely normal. The physician opined that the original service injury was acute and transitory which resolved with sequelae. The current low back pain was essentially not supported by objective testing, according to the physician. The mild disc narrowing noted on x-ray from May 2006 is more likely due to wear and tear of aging. While the May 2006 VA examination report is new, it is not material as it does not show that the veteran's in-service lower back problems were chronic in nature and does not show that the veteran's current lower back disability is related to service. The veteran also submitted buddy statements from T.F. dated in August 2003, R.J. dated in August 2004, and C.M. dated in April 2007. Each of these individuals discussed their personal experiences and service with the veteran, especially in Vietnam. However, none of these individuals had any personal knowledge of the veteran's post-service lower back condition. Thus, while new, these statements are not material to the claim. Finally, the veteran testified to the undersigned that he originally injured his back while changing a tire on a jeep in service. (T. 4). He indicated that he was diagnosed with lumbar sprain and right sciatic. (T. 4). He stated that, in October, he also injured his back when an enemy depot blew up, leaving him unconscious. (T. 4). He recalled injuring his back many times in the field in service, but only went for treatment one time. (T. 4-5). In discussing the separation examination, the veteran indicated that he was told "just check it off," and he did not list any back complaints because all he wanted to do was get out of service. (T. 6). He indicated that he received treatment in 1972 in Freeport, Texas. However, the records are no longer with the physician as he died. (T. 7-9). The veteran also essentially indicated that his back problems started in service and were only aggravated by his post-service automobile accident. (T. 10). The veteran's testimony is cumulative and redundant as the veteran made essentially the same argument in his original claim for service that his lower back disability was related to service. As such, these assertions are not new. While the veteran questioned the thoroughness and accuracy of the separation examination, the Board notes that no specific abnormal findings involving the lower back were noted on VA examinations performed in July 1974 or January 1977. Abnormal findings involving the lower back were not shown on objective examinations until after January 1977, or many years following seperation from service. The Board acknowledges the veteran's dedicated and honorable service. However, evidence associated with the claims folder subsequent to the February 1984 decision either duplicates or is cumulative of evidence already of record, and does not raise a reasonable possibility of substantiating the claim. As such, the evidence received after the February 1984 rating determination is not "new and material" as contemplated by 38 C.F.R. § 3.156(a), and provides no basis to reopen the veteran's claim. 38 U.S.C.A. § 5108. Accordingly, the claim on appeal must be denied. ORDER New and material evidence not having been received; the claim for service connection for lower back disability is not reopened, and is accordingly denied. ____________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs