Citation Nr: 0000288 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-25 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active duty from March 1959 to April 1962. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which determined that the veteran had failed to submit new and material evidence to reopen his claim of entitlement to service connection for a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1. The veteran appealed, and in December 1997, the Board found that new and material evidence had not been submitted to reopen the veteran's claim. The veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 1998, representatives of the veteran and of the Secretary of Veterans Affairs (the Secretary) filed with the Court a Joint Motion for Remand and for a Stay of Proceedings. In December 1998, the Court granted the motion, vacated the Board's December 1997 decision, and remanded the case to the Board. The veteran's case has been returned to the Board for action consistent with the Court's decision. The joint motion essentially noted that in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit expressly rejected the standard for determining whether new and material evidence had been submitted sufficient to reopen a claim as set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991). A review of the Board's December 1997 decision, and the RO's underlying rating decision, shows that they used the Colvin standard. A review of the joint motion essentially shows that a remand was agreed to because neither the Board nor the RO has considered the new criteria, or provided the appellant with notice of its intention to rely on the change in law and the opportunity to respond to it. The U.S. Court of Appeals for Veterans Claims has ordered that the question whether the veteran has submitted new and material evidence be reviewed de novo under 38 C.F.R. § 3.156 (1999). FINDINGS OF FACT 1. An unappealed May 1990 RO decision denied service connection for a back condition to include arthritis of the cervical and lumbar spine. 2. The evidence received since the RO's May 1990 decision either does not bear directly and substantially upon the specific matter under consideration and is either cumulative or redundant, or it is not by itself or in connection with evidence previously assembled so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The RO's May 1990 decision, which denied an application to reopen a claim for service connection for a back condition to include arthritis of the cervical and lumbar spine, is final. 38 U.S.C.A. § 7105 (b),(c) (West 1991 & Supp. 1998); 38 C.F.R. § 20.302 (a) (1999). 2. The evidence associated with the claims file subsequent to the RO's May 1990 decision, which denied the veteran's application to reopen a claim for service connection for a back condition to include arthritis of the cervical and lumbar spine, is not new and material, and the veteran's claim for a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1, is not reopened. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.156(a), 20.1103 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An unappealed RO decision in February 1985 denied service connection for a back condition to include arthritis of the cervical and lumbar spine. This decision became final. 38 U.S.C.A. § 7105(c). The veteran subsequently filed to reopen his claim for a back disorder, and in May 1990, the RO denied the veteran's claim for a back disorder, essentially on the basis that a nexus between the veteran's current back disorder and his service had not been shown, and that no chronic back condition during service had been shown. The veteran was notified of that determination and his appellate rights in a letter dated in May 1990. An appeal was not filed, and the RO decision became final. 38 U.S.C.A. § 7105(c). However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. See 38 U.S.C.A. § 5108. The veteran subsequently filed to reopen his claim for a lower back disability in November 1993. In February 1996, the RO denied the veteran's claim that he had submitted new and material evidence that was sufficient to reopen his claim of entitlement to service connection for a back disorder, described as degenerative arthritis of the cervical and lumbar spine. The veteran has appealed. The Board notes that it has determined that the veteran's claim is more accurately characterized as a claim for "a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1." In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal Circuit Court of Appeals reasoned that the regulation on point, 38 C.F.R. § 3.156(a), merely requires that the newly submitted evidence "be so significant that it must be considered in order to fairly decide the merits of the claim." In light of the recent ruling in Hodge, the U.S. Court of Appeals for Veterans Claims has concluded that Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. Fossie v. West, 12 Vet. App. 1 (1998). As an initial matter, the Board notes that the veteran submitted additional evidence subsequent to the case being transferred to the Board in September 1997, as well as the Board's December 1997 decision. Some of this evidence was not of record at the time of the Board's December 1997 decision and has not previously been considered by the RO. In this respect, regulations provide that any pertinent evidence submitted by the veteran or representative which is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case (SSOC), unless this procedural right is waived by the appellant. See 38 C.F.R. § 20.1304 (c) (1999) (emphasis added). Although the veteran has not waived his procedural rights in this regard, the Board has determined that a remand for consideration of this report, and issuance of an SSOC, is not warranted. Specifically, a review of this evidence shows that, to the extent that it is not duplicative, it primarily pertains to knee treatment, and none of it contains pertinent medical, or other evidence, on this issue at hand which could impact this claim. This evidence is therefore not pertinent. Accordingly, the Board finds that the evidence received by it in September 1998, subsequent to the case being transferred to the Board in September 1997, and subsequent to the Board's December 1997 decision, is not pertinent evidence for which a remand is required under 38 C.F.R. § 20.1304 (c). The Board further finds that a remand is not required in order for the RO to consider the recent ruling in Hodge and issue a supplemental statement of the case. In this regard, review of the statement of the case, issued in June 1997, shows that the RO quoted the language of 38 C.F.R. § 3.156 and, despite reference in the reasons and bases section to the "reasonable possibility of a change in the outcome" requirement invalidated by Hodge, ultimately found that the evidence submitted in connection with the current claim to reopen was merely "cumulative." Inasmuch as (1) the RO provided the veteran with the correct legal standard for reopening a claim under 38 C.F.R. § 3.156 and (2) based its ultimate determination on a ground not invalidated by Hodge and for which he had been provided notice and opportunity to present evidence and argument, the veteran has not been prejudiced by adjudication of his appeal by the Board on the merits in this decision without first remanding the case to the RO for consideration of the recent ruling in Hodge and issuance of a supplemental statement of the case. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993); VAOPGCPREC 16-92, 57 Fed.Reg. 49,747 (1992).. After reviewing the record from a longitudinal perspective, the Board finds that no new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1. When a claimant seeks to reopen a claim based upon additional evidence, VA must perform a three-step analysis. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc). First, VA must determine whether the evidence is new and material under 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), new and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the second step of the Elkins analysis requires VA to reopen the claim and determine whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Finally, the third step of the Elkins analysis requires VA to evaluate the claim on the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. The Court has indicated that in order to reopen a claim, there must be new and material evidence presented or secured since the last determination denying the benefit sought. See Elkins, 12 Vet. App. at 213-214. Accordingly, the Board must consider whether new and material evidence has been received since the RO's May 1990 decision. The RO denied the veteran's claim for a back disorder, described as degenerative arthritis of the cervical and lumbar spine, in May 1990. In that decision, the RO apparently reopened the claim and denied it on the merits, determining that the evidence did not show that the veteran had other than an acute back condition during service, and that there was no medical evidence of a nexus between any current back disorder and his service, to include no evidence to support a grant service connection on a presumptive basis for arthritis. In November 1993, the veteran filed to reopen the claim. The veteran essentially argues that he has presented new and material evidence to reopen his claim of entitlement to service connection for a back condition. He further asserts that service connection is warranted for his back disorder because it began during service. He essentially claims that he was treated on many occasions during service for back pain and that he has had recurrent back symptoms ever since. The evidence submitted since the RO's May 1990 decision includes VA outpatient, hospital and vocational rehabilitation records, a VA examination report, and statements and testimony from the veteran. The VA outpatient, hospital and vocational rehabilitation records, dated between November 1989 and October 1993, and September to November of 1995, include a discharge summary dated in January 1991, that includes a diagnosis of severe degenerative joint disease of L5-S1 by X-ray. A VA outpatient record, dated in February 1994, shows that the assessment was low back pain that was probably musculoskeletal in origin. A VA outpatient record, dated in May 1994, shows that the veteran wore a left knee brace secondary to a cerebrovascular accident (CVA) in 1991. X- rays revealed spondylolysis at L5, but no spondylolisthesis. The assessment was chronic low back pain. In September 1995, the veteran received treatment for complaints of bilateral knee pain and low back pain. The assessments included chronic low back pain. The veteran was afforded a VA spine examination in July 1995. On examination, a mild dorsal kyphosis was found, with mild tenderness or the dorsal and lumbar spinal muscles. X-rays revealed degenerative disc disease at L5-S1 without evidence of spondylosis. The dorsal spine was normal. The diagnosis was degenerative arthritis of the cervical and lumbar spines with mild limitation of range of motion, and mild dorsal kyphosis. At his personal hearing in September 1996, the veteran essentially reported that he injured his left hip and leg during basic training, and that the only treatment he was provided was a lift for his shoe. He stated that he injured his neck in 1959, when an armored personnel carrier that he was in hit a tree, knocking him unconscious. He stated that his low back pain began after he was transferred to an artillery unit in 1960. He asserted that he was in a motor vehicle accident at Ft. Knox in about 1960, while test driving a "mule," and that he was in a jeep accident in about 1962. He said that his low back pain resolved after he was transferred out of the artillery, but that it recurred a few months after his separation from service. His cervical pain began in the early 1980's. In a letter, received by the RO in April 1996, the veteran appears to assert that his back disorder was the result of one hip being lower than the other, and that he was provided with an orthosis to correct this problem during his service. He asserted that his back pain returned after the orthosis was taken away. The Board finds that the recent medical evidence submitted in support of the veteran's claim is either not relevant to the issue at hand or cumulative of previously considered evidence in that it merely confirms that the veteran has a back disorder, to include degenerative arthritis of the cervical and lumbar spine, and degenerative disc disease of L5-S1, a finding of fact in the earlier final RO decision. None the additional medical evidence in question suggests the contended causal link. That is, the record continues to be devoid of any competent evidence that tends to show that the veteran currently has a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1, that is etiologically related in any way to any incident of service, including an injury. With regard to service connection for arthritis under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309, none of the submitted medical evidence suggests that the veteran had arthritis of the spine which became manifest to a compensable degree within a year of separation from active duty service. The Board has considered the veteran's statements and testimony, which were submitted in support of the argument that he has a current back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1, that was the result of his service. Some of his this evidence is essentially a repetition of contentions made when his claim was earlier denied; it is not new evidence. Reid v. Derwinski, 2 Vet. App. 312 (1992). The veteran did provide more detail concerning one of his alleged inservice injuries and claimed additional inservice neck and back trauma. While this latter evidence is new, it is not material since it does not link any current back disability with active duty. The veteran's lay assertions on medical diagnosis or causation do not constitute material evidence to reopen the previously denied claim. Moray v. Brown, 5 Vet. App. 211 (1993). Being a layman, the veteran is not competent to give a medical opinion on the etiology of his condition, or more precisely, a medical opinion on the question of whether there is a medical nexus between any current claimed condition and his service, which ended in 1962. The claims file does not contain any competent evidence that relates any present claimed condition to the veteran's service, or his asserted post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); Moray, supra. In the absence of such evidence, the veteran's statements and testimony are not new and material evidence. See Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). Based on the foregoing, the Board finds that that the submitted evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156; Hodge, supra. The Board therefore concludes that the evidence submitted subsequent to the RO's May 1990 decision 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 for entitlement to service connection for a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1. As such, the RO's May 1990 denial of the claim remains final. 38 U.S.C.A. § 7105(b); 38 C.F.R. § 20.302. Because the appellant 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. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Board views it foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen the claim. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER New and material evidence not having been submitted to reopen the claim of entitlement to service connection for a back disorder, to include degenerative arthritis of the cervical and lumbar spine, with degenerative disc disease at L5-S1, the appeal is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals