Citation Nr: 0709001 Decision Date: 03/28/07 Archive Date: 04/09/07 DOCKET NO. 04-29 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for scoliosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from March 1948 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which found that new and material evidence had not been received to reopen a claim for service connection for scoliosis. In an August 2003 rating decision during the appeal, the RO found that new and material evidence had been received, reopened a claim for service connection for scoliosis, and denied the claim on the merits. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). This case has been advanced on the docket due to the advanced age of the veteran. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (c) (2006). FINDINGS OF FACT 1. A November 1992 RO rating decision denied service connection for scoliosis; the appellant was notified of this decision on December 7, 1992; the appellant did not enter a notice of disagreement with this decision within one year of notice of the decision. 2. The evidence associated with the claims file subsequent to the November 1992 RO rating decision denial of service connection for scoliosis that was not previously submitted to agency decisionmakers, when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 3. The veteran's scoliosis was not noted on the service entrance examination. 4. Clear and unmistakable evidence demonstrates that the veteran's scoliosis existed prior to service. 5. Clear and unmistakable evidence demonstrates that the veteran's scoliosis did not permanently increase in severity during service. CONCLUSIONS OF LAW 1. The November 1992 RO rating decision that denied service connection for scoliosis is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2006); 38 C.F.R. §§ 20.302, 20.1103 (2006). 2. The additional evidence associated with the file since the RO's November 1992 rating decision that denied service connection for scoliosis is new and material, and the claim for service connection for scoliosis is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2006); 38 C.F.R. § 3.156(a) (2006). 3. The veteran's scoliosis clearly and unmistakably existed prior to his entry into military service, and the presumption of soundness at induction is rebutted. 38 U.S.C.A. §§ 1110, 1111, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.306(b) (2006). 4. The veteran's preexisting scoliosis was not aggravated by active service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306(b) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify provisions of the statute and implementing regulations apply to claims to reopen based on new and material evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). A May 2003 VA notice and duty to assist letter satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as the letter informed the appellant of what evidence was needed to establish the benefits sought, of what VA would do or had done, and what evidence he should provide, and informed the appellant that it was his responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim. Available service medical records, service personnel records, VA examination report, private hospitalization report, and other lay statements have been associated with the record. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence which might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. Because the claim has been reopened and is addressed on the merits, any deficiency regarding notice of the basis for a prior final denial of a claim, or what information or evidence is necessary to reopen a claim, is not prejudicial to the appellant's claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess 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, including the degree of disability and the effective date of an award. In the present appeal, the appellant was not provided with notice of the type of evidence regarding ratings or an effective date, if service connection benefits were granted on appeal; however, because the claim is being denied on the merits, no effective date will be assigned, so the Board finds that there can be no possibility of any prejudice to the claimant under the holding in Dingess. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). New and Material Evidence/Reopening Claim In this case, the veteran had active duty service from March 1948 to November 1957. In a November 1992 rating decision, the RO denied the veteran's claim of entitlement to service connection for scoliosis, finding that scoliosis did not manifest in service, and scoliosis was a constitutional or developmental disorder. The veteran did not enter a notice of disagreement with the decision within one year of notice of the decision mailed on December 2, 1992; therefore, the November 1992 decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. In April 2003, the veteran effectively entered a request to reopen service connection for scoliosis by his submission of a claim for service connection for scoliosis (curvature of the spine). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. The July 2003 RO rating decision on appeal denied reopening of the claim for service connection for scoliosis. In an August 2003 rating decision during the appeal, the RO found that new and material evidence had been received, reopened a claim for service connection for scoliosis, and denied the claim on the merits. As previously indicated, the Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted, it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The law provides that a claimant may reopen a previously finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2006). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108. Consequently, the evidence that must be considered in determining whether there is a basis for reopening this claim is that evidence added to the record since the final November 1992 RO rating decision. The evidence of record at the time of the November 1992 decision included a November 1957 service separation examination report that showed normal clinical findings; the veteran's October 1959 statement reporting a post-service on- the-job back injury in August 1959; and a June 1992 VA examination report that included report of a back injury in a post-service airplane crash in 1976, complaints of spine stiffness, and clinical findings of moderate dorsal lumbar scoliosis, dorsal tenderness and muscle spasm, and X-ray evidence of essentially normal lumbar spine, with some thoracic spine compression deformity at T11 and T12, diagnosed as status post compression fractures of T11 and T12 and chronic lumbosacral strain/pain syndrome. The additional evidence of record since the November 1992 decision includes the veteran's April 2003 claim to reopen that included the report that his scoliosis began in service in 1953 or 1954; a December 1974 to January 1975 report of hospitalization at Sparks Medical Center that reflects a (post-service) back injury two weeks prior (December 1974) due to a fall at home; and a May 2003 lay statement that shows that in the 1980s the veteran stated he had trouble with his back. After a review of all the evidence of record, the Board finds that some of the evidence received since the November 1992 RO rating decision that was not previously submitted to agency decisionmakers, when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for scoliosis. The additional evidence includes the veteran's assertion that scoliosis began in service in 1953 or 1954, includes some lay evidence that the veteran had trouble with his back prior to the March 1992 service connection claim, and includes evidence of post-service symptoms and examination results of the spine. For these reasons, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for scoliosis (curvature of the spine). 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2006). Having reopened the claim for service connection for scoliosis, the Board will address the merits of the reopened claim. Service Connection for Scoliosis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.1, 3.303(a) (2006). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be 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). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137 (West 2002 & Supp. 2006). A preexisting injury or disease will be considered to have been aggravated by active wartime service, where there is an increase in disability during such war service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2006); 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment will not be considered service connected unless the disease is otherwise aggravated by service. 38 C.F.R. § 3.306(b). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9 (2006); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). A disease which is considered by medical authorities to be of familial (or hereditary) origin must, by its very nature, be found to have pre-existed a claimant's military service, but service connection could be granted if there is superimposed injury or disease in service and the preexisting disorder is aggravated (permanently increased in severity) during service. VAOPGCPREC 82-90. In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that the correct standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the appellant's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2002); 38 C.F.R. § 3.306 (2006). See also VAOPGCPREC 3-2003. Turning to the merits of the claim, the veteran's scoliosis was not "noted" on the service entrance examination. Because scoliosis was not "noted" at the time of the 1951 service entrance examination, the veteran is entitled to the presumption of sound condition. 38 U.S.C.A. § 1111. On the question of whether the veteran's scoliosis pre- existed active duty service, a precedent opinion of the VA General Counsel, VAOPGCPREC 82-90 (a reissue of General Counsel opinion 01-85), held in essence that a disease which is considered by medical authorities to be of familial (or hereditary) origin must, by its very nature, be found to have pre-existed a claimant's military service, but could be granted service connection if manifestations of the disease in service constitute aggravation of the condition. Moreover, congenital or developmental defects, as opposed to diseases, could not be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service-connected. In the absence of evidence of other etiology, scoliosis by its nature is a congenital or developmental abnormality. In addition, a June 1992 VA examination report reflects diagnoses that include "congenital spinal scoliosis," thus indicating competent medical diagnosis of the congenital etiology of the veteran's scoliosis. For these reasons, the Board finds that the presumption of sound condition of the spine is rebutted by clear and unmistakable (obvious and manifest) evidence that the veteran's congenital scoliosis pre-existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303. While scoliosis (curvature of the spine) is a congenital defect, not a disease, and therefore cannot be service- connected per se, a superimposed injury may occur in service, warranting service connection for the resulting additional permanent disability, in this case a back disability (scoliosis). Thus, the next question is whether the evidence clearly and unmistakably demonstrates that the pre-existing disability of scoliosis was not aggravated during service. In this veteran's case, there is no evidence of in-service injury to the back. The veteran has only reported that he underwent strenuous training as part of Officer Candidate School in 1954, and reports that he manifested symptoms of back pain during this time, but the veteran does not allege the occurrence of any in-service back injury or disease. The November 1957 service separation examination report reflects clinical findings of no abnormalities of the spine. The first evidence of a back injury is the veteran's post- service statement dated in October 1959 in which he wrote about a post-service on-the-job back injury in August 1959, and did not mention any back injury in service. The October 1959 letter to VA was not a claim for compensation because it did not request a claim form, did not identify any compensation benefit sought, and did not express an intent to apply for compensation benefits. A private report of hospitalization at Sparks Medical Center dated from December 1974 to January 1975 reflects treatment for a post-service fall and injury to the back that occurred two weeks prior (in December 1974). The June 1992 VA examination report reflects a history of yet another post-service back injury involving an airplane accident in 1976. The veteran first entered a claim for compensation benefits for "curvature of the spine" (scoliosis) in March 1992, when he wrote that he had been eliminated from Officer Candidate School in service due to spinal pain. Even assuming that the veteran experienced some spinal pain in service, including as he tried to compete for Officer Candidate School, as he first reported in 1992, there is still no credible evidence of superimposed in-service injury to the spine. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For these reasons, the Board finds that there is no credible evidence of superimposed injury or disease to the veteran's preexisting congenital or developmental disorder of scoliosis. On the question of whether there was any increase in severity of preexisting scoliosis during service, there is no competent medical evidence of worsening during service, as the November 1957 service separation examination findings that were negative for evidence of scoliosis were the same as the service entrance examination findings. The lay statement submitted by the veteran is of no probative value on the question of in-service back injury or disease or aggravation of scoliosis in service because the lay statement only tends to show that, at some time after service in the 1980s, which is subsequent to post-service back injuries in August 1959, December 1974, and 1976, the veteran experienced worsened back symptoms. The veteran's reported history of post- service back injuries in 1959, 1974, and 1976 have no tendency to support his claim, as they tend to show post- service etiology and onset for back complaints (pain and stiffness) and findings (strain and thoracic spine compression deformity at T11 and T12) rather than in-service injury or disease or aggravation of pre-existing scoliosis in service. For these reasons, the Board further finds that the presumption of sound condition of the spine is rebutted by clear and unmistakable (obvious and manifest) evidence that the veteran's scoliosis was not aggravated during service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303. For these reasons, the Board finds that scoliosis was not incurred in, or aggravated by, active military service. As the standard is clear and unmistakable evidence to rebut the presumption of sound condition at service entrance, the rule of resolving reasonable doubt in the veteran's favor is not applicable in this case. ORDER New and material evidence has been received, and a claim for service connection for scoliosis is reopened, and is denied on the merits. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs