judge_norm: MICHAEL E KILCOYNE

condition: back

text:
Citation Nr: 1028000
Decision Date: 07/27/10    Archive Date: 08/10/10

DOCKET NO.  09-36 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

Whether new and material evidence has been presented to reopen a
claim for entitlement to service connection for a lower back
condition.

REPRESENTATION

Appellant represented by:	Tennessee Department of
Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel

INTRODUCTION

The Veteran had active service from April 1984 to March 1988.

This matter came before the Board of Veterans' Appeals (Board) on
appeal from a May 2009 decision by the Department of Veterans
Affairs (VA) Nashville, Tennessee Regional Office (RO).

The Veteran presented testimony at a Video Conference hearing
chaired by the undersigned Veterans Law Judge in April 2010.  A
transcript of the hearing has been associated with the claims
folder.

The Veteran in the instant case has elected to participate in the
Expedited Claims Adjudication (ECA) Initiative.  See ECA
Agreement and Waiver of Rights, dated March 23, 2009.  The ECA is
a pilot program designed to expedite the processing of claims and
appeals by obtaining claimants' waivers of certain statutory and
regulatory response periods, and by utilizing the Board's
statutory authority to pre-screen cases to determine the adequacy
of the record for decisional purposes.  The case has been
processed under regulations governing the ECA.  See 38 C.F.R.
�� 20.1500-20.1510 (2009).

FINDINGS OF FACT

1.  In a September 2004 decision, the Board denied service
connection for a lower back condition.

2.  The additional evidence added to the claims file since the
previous final denial does not raise a reasonable possibility of
substantiating the claim.

CONCLUSIONS OF LAW

1.  The September 2004 Board decision is final.  38 U.S.C.A.
� 7104 (West 2002); 38 C.F.R. � 20.1100 (2009).

2.  New and material evidence has not been received to reopen the
claim of entitlement to service connection for a lower back
condition.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156
(2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting from
a disease or injury incurred in or aggravated by active service.
38 U.S.C.A. � 1131 (West 2002).  In this case, the Veteran
contends that the RO erred in refusing to reopen and grant her
claim for service connection for a lower back condition.  She
asserts that on the basis of evidence she has now submitted, she
meets the legal and factual criteria for service connection.

A review of the history of this claim is instructive.  The
Veteran first sought service connection for a lower back
condition in December 2000.  The Veteran contends that she
currently suffers from a lower back condition that is causally
related to either an accident that occurred during her Advanced
Individual Training (AIT) in August 1984, or to a motorcycle
accident in which she was involved in either 1985 or 1986.  The
RO denied the Veteran's claim in November 2001 on the basis that
there was no evidence that she was currently suffering from a
lower back condition that was causally related to her active
service.

The Veteran thereafter filed a Notice of Disagreement, and the RO
issued a Statement of the Case in March 2003.  After the Veteran
filed her Substantive Appeal, she testified before a Decision
Review Officer (DRO) regarding her claim in August 2003.  The RO
issued a Supplemental Statement of the Case in November 2003.
The case then came before the Board which issued its decision in
September 2004.  The Board determined that the lower back pain
from which the Veteran was suffering began years after service
and was unrelated to any incident from her active service.  As
the Veteran did not appeal this decision, it became final.
38 U.S.C.A. � 7104; 38 C.F.R. � 20.1100.

The Veteran filed the instant claim in March 2009.  The Veteran
elected to participate in the Expedited Claims Adjudication
Initiative.  The RO denied her claim to reopen in a May 2009
decision.  The Veteran filed a timely Notice of Disagreement, and
the RO issued a Statement of the Case in August 2009.  The
Veteran then filed a timely Substantive Appeal, and she testified
in a videoconference hearing in April 2010.

A previously denied claim will be reopened if the claimant
submits new and material evidence.  38 U.S.C.A. � 5108, 38 C.F.R.
� 3.156(a).  If the Board determines that new and material
evidence has not been received, the adjudication of the
particular claim ends, and further analysis is neither required
nor permitted.  Any decision that the RO may have made with
respect to a new and material claim is irrelevant.  Barnett v.
Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996), aff'g 8 Vet. App.
1 (1995).  See also, Jackson v Principi, 265 F.3d 1366, 1369
(2001) (holding that the Board has a jurisdictional
responsibility to consider whether it was proper for a claim to
be reopened regardless of whether the previous action denying the
claim was appealed to the Board).

New evidence is defined as evidence not previously submitted to
agency decision makers, and 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.  38 C.F.R. � 3.156(a).  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).

Since the Veteran's previous final denial in September 2004, only
three pieces of new evidence have been added to the file: records
of the Veteran's VA treatment, the Veteran's testimony from her
videoconference hearing, and a magazine article submitted by the
Veteran.  After reviewing this evidence, the Board determines
that while some of it is new, none of it is material.

The Board first notes that records of the Veteran's VA treatment
since the time of the previous Board decision have been obtained
and associated with the claims file.  These records detail the
Veteran's treatment for her chronic lower back pain.  While these
records are new, as they were not considered by the Board in
making its previous decision, they are not material.  These
records simply chronicle the Veteran's treatment for her lower
back pain.  They do not relate this pain to her active service.
They accordingly do not speak to the reason for the previous
final denial, and thus are not material.

The Veteran's testimony from her April 2010 videoconference
hearing has also been associated with the claims file.  The
Veteran testified that she first injured her back during AIT in
August 1984 at Aberdeen Proving Ground.  She then stated that she
was in a motorcycle accident in April 1985 while at Fort Ord,
California.  Following this incident, she stated that she
frequently sought treatment for her back while on active service.
She also detailed the treatment that she has sought for her back
following her separation from active service.

The Board does not find the Veteran's testimony to be new or
material.  The Veteran mostly repeats contentions that she had
made in her earlier DRO hearing and in various statements and
letters associated with the claims file.  Her testimony is thus
cumulative of earlier evidence.

Further, her testimony suffers from the same credibility problems
as the Board found in its previous decision.  The Board notes
that, when the Veteran initially filed her claim, she did not
mention being involved in a motorcycle accident.  In a January
2001 letter, the Veteran then stated that she was involved in a
motorcycle accident in June 1986.  In a May 2001 Report of
Accidental Injury, the Veteran then stated that the accident
occurred in June 1985, a claim she repeated in her DRO hearing.
In her April 2010 hearing, the Veteran stated that the accident
occurred in April 1985.  In addition to these internal
inconsistencies, the Board notes that the Veteran's service
treatment records are silent as to any record of her motorcycle
accident or as to any complaints of back pain prior to an April
1987 record.

The final piece of new evidence added to the claims file is a
magazine article provided by the Veteran from a cycling magazine.
This article details how cyclists can reduce numbness in their
extremities while riding.  While new, this article is not
material, as it does not relate to an unestablished fact
regarding the Veteran's claim.

In summary, the Board finds that the previous September 2004
Board decision denying service connection for a lower back
condition is final.  The Board further finds that the additional
evidence presented since the prior decision does not raise a
reasonable possibility of substantiating the claim for service
connection for a lower back condition, and thus concludes that
new and material evidence has not been presented to reopen the
claim of entitlement to service connection.  38 U.S.C.A. � 5108;
38 C.F.R. � 3.156.

Finally, the Veterans Claims Assistance Act of 2000 (VCAA)
describes VA's duty to notify and assist claimants in
substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, 3.326(a) (2009).

VA satisfied its duty to notify via a March 2009 letter sent to
the Veteran that informed her of what evidence was required to
substantiate the claim and of her and VA's respective duties for
obtaining evidence.  This same letter defined new and material
evidence, and it informed her of what evidence would be necessary
to substantiate the element of the claim for service connection
that was found insufficient in the previous denial.  See Kent v.
Nicholson, 20 Vet. App. 1 (2006).

Next, VA has a duty to assist the Veteran in the development of
her claim.  This duty includes assisting her in the procurement
of both service treatment records and other pertinent medical
records and providing an examination when necessary.  38 U.S.C.A.
� 5103A; 38 C.F.R. � 3.159.  In this case, all obtainable
evidence has been associated with the claims file.  The Veteran
requested and attended a videoconference before a member of the
Board, and the transcript from this hearing has been associated
with the claims file.  Further, though a VA compensation and
pension examination was not performed, such an examination is not
required unless a claim to reopen has been reopened.  The Board
notes that the evidence already of record is adequate to allow
resolution of the appeal.  Hence, no further notice or assistance
to the Veteran is required to fulfill VA's duty to assist in the
development of the claim.  Smith v. Gober, 14 Vet. App. 227
(2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).

The Board finds that all necessary development has been
accomplished, and appellate review does not therefore result in
prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384
(1993).

ORDER

New and material evidence has not been presented, and the
Veteran's claim for service connection for a lower back condition
remains denied.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs