Citation Nr: 0705354 Decision Date: 02/23/07 Archive Date: 02/27/07 DOCKET NO. 02-19 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for degenerative changes of the lumbar spine. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from August 1952 to August 1959. The instant appeal arose from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama, which denied a claim to reopen a claim for service connection for degenerative changes of the lumbar spine. FINDINGS OF FACT 1. An April 1985 RO decision denied the veteran's claim for service connection for degenerative changes of the lumbar spine. 2. Additional evidence submitted since the April 1985 RO decision was not previously submitted, but the additional evidence is not related to an unestablished fact necessary to substantiate the claim, and therefore it does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The April 1985 RO decision which denied service connection for degenerative changes of the lumbar spine is final. New and material evidence sufficient to reopen the veteran's claim has not been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking to reopen his claim of entitlement to service connection for degenerative changes of the lumbar spine which was previously denied in an April 1985 rating decision. In order to reopen the claim, new and material evidence must be submitted. "New" evidence is that which has not been previously submitted, and "material" evidence is that which is related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2006). In April 1985, the RO denied a claim for service connection for degenerative changes of the lumbar spine. While the claims folder does not contain a copy of the letter notifying the veteran of this decision, there is a presumption of regularity that VA properly discharged his official notification duties by mailing a copy of a VA decision to the last known address of an appellant on the date that the decision was issued. Baxter v. Principi, 17 Vet. App. 407 (2004). The veteran did not appeal this decision within one year of being notified, and it is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104 (2006). The evidence of record at the time of the April 1985 decision included the veteran's contentions that he had injured his back in service when carrying a patient on a stretcher, a post-service private medical record dated in 1978 which reported that the veteran had pulled his back lifting a tarp on a truck, private treatment records dated in 1984 showing complaints of low back pain and an assessment of acute lumbosacral strain, and a 1984 VA examination report which diagnosed degenerative changes of the lumbar spine. The present claim for benefits was initiated in January 2002. Evidence which has been received since the time of the April 1985 RO denial includes written statements prepared by the veteran and his representative and private treatment records dated from 2000 to 2002 showing complaints of back pain and assessments of lumbar strain and osteoarthritis. While the evidence which has been received since the time of the April 1985 RO denial is new in that it has not previously been submitted, it is not material. This is so because the new evidence is not related to an unestablished fact necessary to substantiate the claim. In this case, an unestablished fact necessary to substantiate the claim is a link between the current back problems, including degenerative changes of the lumbar spine, and the veteran's active service. The new evidence does not relate to this unestablished fact: there is nothing in the new evidence that pertains to a medical nexus between degenerative changes of the lumbar spine and service. For this reason, the claim to reopen must be denied. Duty to Assist and Duty to Notify VA has a duty to notify and assist claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)). Proper VCAA notice 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; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). The United States Court of Appeals for Veterans Claims (Court) has held that the notice requirements apply generally to all five elements of a service connection claim; namely, (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction. In the present case, the Board of Veterans' Appeals (Board) finds that VA has satisfied its duty to notify by means of various communications sent to the veteran, including letters dated in February 2002, September 2003, August 2004, and June 2006. The letters informed the veteran that new and material evidence was required in order to reopen his claim for service connection for degenerative changes of the lumbar spine and, more specifically, that he needed to submit evidence that showed a relationship between degenerative changes of the lumbar spine and service. See, e.g., Kent v. Nicholson, 20 Vet. App. 1 (2006). He was notified of his and VA's respective duties for obtaining the evidence, and he was asked to send any pertinent evidence in his possession. The 2006 letter also contained specific notice with respect to how a rating and/or effective date would be assigned if service connection was established. Under the circumstances, the Board finds that the purpose of the notice requirement has been satisfied. As for the timing of the notice, the Board notes that some of the required notice was not provided to the veteran until after his claim was initially adjudicated. However, any defect with respect to the timing has since been corrected. As noted above, the veteran has been provided with notice that is in compliance with the content requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). He has been afforded ample opportunity to respond to the notice(s), to submit evidence and argument, and to otherwise participate effectively in the processing of his appeal. In addition, his claim has since been re-adjudicated by the RO in subsequent SSOC's. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2006). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006). In the present case, the Board finds that the duty to assist has been fulfilled. Private treatment records are included in the claims folder as are statements from the veteran and his representative. The National Personnel Records Center (NPRC) has certified that the veteran has fire-related service and that physical examinations, like the veteran's entrance and separation physicals, cannot be reconstructed. In other words, the veteran's service medical records were apparently destroyed in a warehouse fire in the 1970s. Where there is evidence of fire-related service, as here, the Board recognizes that there is a heightened duty to assist, including searching for alternate source documentation. The case was remanded in 2004 in further attempt to develop alternate service medical records. Attempts to develop alternate records were challenged by the fact that the veteran was unable to pinpoint when his back injury occurred in service within the three-month period required to make a search of morning reports. A three month search between October and December 1955 was performed, as that was a time period during which the veteran indicated that he may have been injured. However, while morning reports show that he took some "ord leave" during this period, there was no mention of sick leave or back injury in those records. Since the veteran reported that he received treatment for his back in service at Barksdale Air Force Base Hospital, those records were searched for the years 1955 and 1956. However, no records were located. The NPRC also certified that there were no surgeon general records pertaining to the veteran. Given the numerous development attempts made by the RO and the numerous responses from the NPRC, it appears that further attempts to develop missing service records would be futile as all sources have been exhausted. The veteran has testified that he is not aware of how to contact any individuals who served with him at the time of the incident. The veteran has not been afforded a VA examination in connection with the present appeal. However, such development is ordinarily not in order unless new and material evidence has been received. 38 U.S.C.A. § 5102A(f) (West 2002). Accordingly, the Board finds that the duty to assist and the duty to notify are satisfied. ORDER A claim to reopen a claim for service connection for degenerative changes of the lumbar spine is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs