Citation Nr: 0003617 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-32 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Associate Counsel INTRODUCTION The veteran served on active duty in the military from September 1942 to November 1945. He appealed to the Board of Veterans' Appeals (Board) from an August 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the claim at issue, finding that new and material evidence sufficient to reopen the veteran's claim for service connection for a back injury had not been submitted. In October 1998, the veteran testified at a hearing before the undersigned member of the Board, at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. Service connection for a low back disorder was denied by the Board in February 1980, on reconsideration in March 1981, and then again in March 1983. 2. Most recently, in a September 1987 decision, the Board again denied the veteran's claim for service connection for a back disorder, finding that the evidence submitted since the March 1983 decision was not sufficient to alter the factual basis so as to show that the veteran had a chronic back disorder as a result of military service. 3. The new evidence that has been associated with the claims file since the Board's September 1987 decision, when considered alone or in conjunction with the evidence previously of record, does not tend to establish that the veteran had a chronic back disorder during service, or within one year after service, or otherwise establish any material fact that was not already of record at the time of that Board decision. CONCLUSIONS OF LAW 1. The Board's September 1987 decision denying the veteran's claim for service connection for a back disorder is final. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105 (1999). 2. New and material evidence to reopen the claim of service connection for a back disorder has not been presented. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a disease is first diagnosed after service, service connection nevertheless may be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or, if applicable, by evidence showing that a listed chronic disease was manifested to a compensable degree within a presumptive period after service, which is one year for arthritis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. In addition, the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period after service and still has such condition. Such evidence, however, must be medical unless it relates to a condition as to which, under the court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim still may be reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumptive period after service, provided that continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 498 (1997). The veteran's claim for service connection for a back disorder has previously been considered and denied. Following an appeal of an RO denial of the claim, the Board initially denied service connection for a low back disorder in a February 1980 decision. On reconsideration, the Board again denied service connection for this claim in March 1981. At that time, the pertinent evidence before the Board included: service medical records (which showed that the veteran reported complaints of occasional intermittent pain on lifting in June 1943, with no trouble noted that day, and that the veteran was treated for muscular strain of the back and abdomen due to calisthenics in September 1945); a copy of the veteran's November 1945 examination prior to separation (which indicated that there were no musculoskeletal defects noted); statements from the veteran and his representative, beginning in March 1951, which essentially assert the claim for service connection; a February 1980 letter from John Joseph Halnan, Jr., M.D, and Nurse Theresa Bushman (which noted that the veteran was treated for lower back pain in 1947, 1948, and 1949); a February 1980 letter from Raymond C. DeCesare, D.O. (reporting that the veteran was treated for low back pain and numbness in the leg in December 1973); a March 1980 letter from Dr. Daniel P. Scales (noting that he treated the veteran in January 1973), a June 1980 letter from John J. Halnan, Jr., M.D., (noting treatment for lower back pain in 1947, 1948, and 1949 and reporting that records had been destroyed years ago); a March 1980 letter from John Joseph Halnan, Jr., M.D, and Nurse Theresa Bushman (essentially repeating earlier statements); and a transcript of the veteran's November 1980 hearing at the Central Office in Washington, D.C. During the hearing, the veteran informed the Board that a 1979 statement of the case incorrectly indicated that the veteran reported that he had pain on "enlisting" when it should have noted that the he had pain on "lifting." With this information on file, the Board denied the veteran's claim for service connection for a back disorder, finding that the February 1980 conclusion that the symptoms demonstrated in service were acute and transitory and not etiologically related to any current back problem was consistent with the facts and circumstances demonstrated in the evidentiary record. After the veteran appealed the RO's denial of his attempt to reopen the claim, the Board again denied service connection in March 1983, concluding that the additional evidence submitted since the initial Board denial and 1981 reconsideration did not establish a new factual basis warranting service connection for a back disability. Additional evidence added to the file following the Board's 1981 decision included a March 1981 letter from John H. deJong, M.D. (noting that the veteran had been a patient of his for recurrent back pain since 1973 and that it was possible that the condition related to service); reports of January 1973 x-rays of the lumbar spine reflecting an impression of bi-level degenerative disc disease); additional statements from the veteran and his representative; a transcript of the veteran's June 1982 Central Office hearing during which time he and a fellow witness testified regarding the veteran's back problems since service; March and August 1982 letters from Dr. deJong (reporting that he treated the veteran since 1973 for a low back condition which apparently dated back to injuries received in service). After the veteran again appealed an RO denial of his attempt to reopen the claim, most recently, in September 1987, the Board again denied service connection for a back disorder, finding that the additional evidence submitted since the 1983 Board denial was not sufficient to alter the factual basis so as to show that the veteran had a chronic back disorder as a result of military service. Such evidence included canceled checks written by the veteran to Dr. Halnan in 1954 and 1958 with an explanatory affidavit from Nurse Bushman; a June 1985 letter from Dr. deJong (essentially reporting that he treated the veteran for back problems since 1973, that the veteran gave a history of back injuries sustained during service, and that he considered the veteran's back condition to be service related if the initial injury did take place while the veteran was in the service); a February 1986 statement from James W. Spooner (noting that he was aware of the back problems that the veteran had during service and has personally witnessed the problems that he has had over the past 40 years); an April 1986 statement from a soldier named Anthony Como (indicating that he served with the veteran when he injured his back in 1943 and that he has heard the veteran talk about his resultant back problems on multiple occasions since separation from service); an April 1986 affidavit from Frances J. Minchin, R.N. (stating that during a 40 year friendship with the veteran, the veteran has always maintained that the problem was due to an inservice injury); an October 1986 affidavit from the veteran's wife (stating that the veteran had problems with his back due to an inservice injury and attesting to the veteran's low back problem since they were married in 1958); and the transcript of a December 1986 hearing before a member of the Board at the RO (comprised essentially of a summary of the argument by the veteran's representative). Based on its review of the above noted evidence, the Board noted that although there was medical evidence indicating that the veteran had an acute back problem during service, there was none showing a back problem at separation. Also, the Board found that newly submitted statements from medical professionals did not show post-service treatment for back problems until 1947, more than one year after separation from service. Additionally, in spite of medical opinions linking current back problems to a history related by the veteran, the file did not contain competent medical evidence that actually tied the back problems to the veteran's period of service. Since the last prior disallowance in September 1987, the appellant again attempted to reopen his claim in July 1997, arguing, once again, that service connection should be granted for a low back disorder. However, as already noted, this is not the first time that such a claim has been made. This claim for service connection has been considered and denied by the Board on several occasions, the last of which was in September 1987. Like the other prior Board denials, the Board's September 1987 denial is final, and the claim may not be considered on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1105. In other words, provisions of governing statutes and regulations preclude a full review of the veteran's claim on the merits until after analyzing the question of whether it should be reopened. In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the United States Court of Appeals for Veterans Claims (hereinafter the Court), held that the United States Court of Appeals for the Federal Circuit (Federal Circuit), in Hodge v. West, 155 F.3d 1356 (Fed Cir 1998), articulated a three- step process for consideration of a previously denied claim: first it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening, it must be determined whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the adjudicator may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See also Winters v. West 12 Vet. App. 203 (1999) (en banc). "New and material" evidence is evidence not previously submitted, not cumulative or redundant, and which by itself, or along with evidence previously submitted, is so significant that it must be considered to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (a) (1999); Hodge; see also Evans v. Brown, 9 Vet. App. 273 (1996). Furthermore, the Court has stated that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board is required to give consideration to all of the evidence received since the last disallowance of these claims on any basis, i.e., in this case, since the Board's 1987 denial. Evans. Additional evidence with the claims file since the Board's September 1987 decision not to reopen the claim for service connection for a low back disorder includes:; letters of 1995 correspondence with the veteran's congresswoman and the House Congressional Liaison office (reflecting the veteran's desire to have his claim reopened), accompanied by copies of documents previously associated with the file, such service medical records, transcripts of the November 1980 and August 1982 hearing transcripts, administrative actions, and portions of the brief previously filed by the appellant's attorney in connection with the prior appeal; a July 1997 statement from [redacted] (indicating that he knew of the back injury that the veteran sustained during service and that he took the veteran to Patterson, New Jersey to his doctor for treatment on a number of occasions); statements from the veteran (indicating that he still believed that the old VA error reporting occasional pain on "enlisting" instead of occasional pain on "lifting" resulted in the denial of service connection years ago); statements from his representative; and a transcript of his October 1998 hearing before a member of the Board on travel section at the RO. The Board notes that during the hearing, the veteran essentially reiterated assertions previously made in support of his claim. Initially, the Board notes that all the evidence associated with the congressional correspondence is duplicative of evidence previously considered, and, hence, by definition, is not new. While the actual correspondence to and from the veteran's Congressman and with the House Congressional Liaison service is new, in the sense that it was not previously of record, that evidence is not material in that it only reflects the veteran's desires to have his claim reopened, but contains no medical indication of a relationship between any current back problems and service. The statement from Mr. [redacted], while new in that sense that it was not previously of record, provides no new information that would help the veteran's claim. While this statement supports findings that the veteran had an in-service back injury, and medical treatment for back problems in Patterson, New Jersey, in the 1940's, the Board notes that the file already contained notations of back complaints and a diagnosis of muscle strain in service, as well as letters from the veteran's treating physician in Paterson, New Jersey, Dr. Halnan, dated as far back as 1980, which have attested to the fact that the veteran was indeed treated for back problems in 1947, 1948, and 1949. Assertions to the effect that the veteran's back disorder began during service and that his denial of service connection was due to VA error in a 1979 statement of the case (advanced by the veteran and representative in written statements and during his hearing), have previously been advanced and considered. More specifically, the Board notes that the VA error that the veteran refers to was noted and corrected years ago and played no part in the Board decisions not to reopen the claim. The assertions made in statements and during hearings contain no new medical evidence that would tend to show in-service inception of a chronic low back disorder. Thus, such assertions are, for the most part, cumulative of information and assertions already on file. To whatever the extent Mr. [redacted]'s statement, like the assertions made by the veteran and his service representative in statements and during hearing, is being presented to establish the existence of a nexus between the veteran's military service and his current back problems, the Board notes that lay evidence, without supporting medical evidence, does not provide a basis for reopening the claim. Lay persons without the appropriate medical training or expertise are not deemed competent to render an opinion on a medical matter, such as the relationship between a current disability and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 5 (1992). Hence, unsupported lay assertions of medical causation, even if new, are not material, and cannot serve as a predicate for reopening a previously disallowed claim. Moray v. Brown, 5 Vet. App. 211 (1993). In sum, the evidence submitted since the September 1987 Board denial is either duplicative or cumulative of that previously of record, or, if new, is not so significant that it must be considered to fairly decide the merits of the veteran's claim. As such, the Board concludes that the appellant has not submitted new and material evidence regarding his low back disorder since the last prior disallowance of that claim; hence, his claim for service connection cannot be reopened, and the September 1987 Board denial remains final. The Board also is aware of no circumstances in this case that would put the VA on notice of the existence of any additional relevant evidence that, if obtained, would provide a basis to reopen the claim. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). Because the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The duty to inform him of the elements necessary to complete his application to reopen his claim for service connection for a low back disorder has been met. See Graves v. Brown, 8 Vet. App. 522, 524 (1996). As a final point, the Board notes that, in addition to considering whether the veteran had submitted evidence that was new, and relevant and probative, in the September 1997 statement of the case, the RO also referred to a third criterion (formerly considered by the Board in accordance with the Court's case law) that in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility of a change in outcome of the case on the merits. See Evans, 9 Vet. App. at 283, citing Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). However, the Federal Circuit, in Hodge, held that there was no such legal requirement. See also Elkins. That notwithstanding, the Board finds that the RO's actions are not prejudicial to the veteran, since, for the reasons noted above (i.e., that no new and probative evidence has been submitted), the outcome is the same whether the claims are considered under the test utilized by the RO, or the correct "new and material" standard set forth in 38 C.F.R. § 3.156(a) (1999). Thus, to remand this case to the RO for consideration of the correct legal standard for reopening claims would be pointless and, in light of the above discussion, would not result in a determination favorable to the veteran. See VAOPGCPREC 16-92 (O.G.C. Prec. 16-92), 57 Fed. Reg. 49747 (1992). ORDER In the absence of new and material evidence, the petition to reopen the claim for service connection for a low back disorder is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals