Citation Nr: 0412468 Decision Date: 05/13/04 Archive Date: 05/19/04 DOCKET NO. 03-15 972 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to service connection for a claimed low back disorder. REPRESENTATION Appellant represented by: Maryland Veterans Commission ATTORNEY FOR THE BOARD A. Nigam, Law Clerk INTRODUCTION The veteran served on active duty in the U.S. Army from July 1989 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision by the RO. FINDING OF FACT 1. In a September 1995 rating decision, the RO denied the veteran's original claim of service connection for spina bifida and spondylolysis. 2. The evidence received since the RO's September 1995 decision bears directly and substantially upon the specific matter under consideration; and must be considered in order to fairly decide the merits of the claim. 3. The currently demonstrated spina bifida, lumbarization and spondylolysis are developmental defects. 4. The veteran is shown chronic low back pain that as likely as not had its clinical onset due to injuries suffered in service. CONCLUSION OF LAW 1. The evidence received since the final September 1995 RO decision which denied is new and material; thus the veteran's claim of service connection for a low back disorder is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156(a) (2001), 20.1103 (2003). 2. Neither spina bifida, lumbarization nor spondylolysis is a disease or injury within the meaning of application legislation. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2003). 3. By extending the benefit of the doubt to the veteran, his disability manifested by low back pain is due to injury that was incurred in his period of active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2003). REASON AND BASIS FOR FINDINGS AND CONCLUSION The veteran is seeking service connection for low back disability. He essentially contends that his developmental defects of spina bifida, lumbarization and spondylolysis were aggravated by service. Specifically, he attributes this to injuries during his physical training and duties throughout service, as well as a January 1993 car accident in which his back was reportedly injured. I. Whether new and material evidence has been received to reopen a claim of service connection for spina bifida and spondylolysis. While the RO appears to have reopened the veteran's claim of entitlement to service connection for spina bifida and spondylolysis, and to have considered the claim on a de novo basis, the Board is not bound by that determination and is, in fact, required to conduct an independent new-and-material- evidence analysis in claims involving prior final decisions. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The record reflects that, in a July 1995 rating decision, the RO denied entitlement to service connection for spina bifida and spondylolysis. That decision was not appealed within one year, and became final. In July 1995, the RO issued it's first rating decision, denying the veteran's claim of entitlement to service connection for spina bifida and spondylolysis. In July 1995, the veteran submitted a statement indicating that he wished to reopen his claim of entitlement to service connection for spina bifida and spondylolysis. In September 1995, the RO issued another rating decision denying entitlement to service connection for spina bifida and spondylolysis. In June 2000, the veteran submitted another statement indicating that he wished to reopen his claim of entitlement to service connection for spina bifida and spondylolysis. In general, RO decisions are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New and material evidence is defined as 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. 38 C.F.R. § 3.156(a) (2003). The Board notes that 38 C.F.R. § 3.156 was recently amended, and that the standard for finding new and material evidence has changed as a result. 66 Fed. Reg. 45,620, 45,630 (Aug. 29,2001) (now codified at 38 C.F.R. § 3.156(a) (2002)). However, this change in the law is not applicable in this case, because the appellant's claim was not filed on or after Aug. 29, 2001, the effective date of the amendment. 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). Accordingly, the Board will proceed to determine whether new and material evidence has been submitted to reopen the appellant's claims for service connection in this matter without regard to the new version of 38 C.F.R. § 3.156(a) (2003). The Board notes that the claims folder contains the report of a March 2003 VA medical examination. The examiner diagnosed the veteran as having spina bifida occulta of S1, lumbarization of S1, and unilateral spondylolysis of S1. The March 2003 VA examination bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2003). Accordingly, the Board finds that new and material evidence has been submitted to reopen the veteran's claim. II. Veterans Claims Assistance Act of 2000 In November 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA §3(a), 114 Stat. 2096, 2096-97 (2000) (now codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002). VA subsequently published regulations, which were created for the purpose of implementing many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003)). The Board believes that the evidence has been developed to the extent necessary to adjudicate the claim of service connection for a low back disorder, to include spina bifida and spondylolysis. In light of the favorable action taken hereinbelow, further discussion of VCAA is not required at this time. III. Service connection for a low back disorder, to include spina bifida. lumbarization and spondylolysis Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2003). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002); 38 C.F.R. § 3.304 (2003). The General Counsel held that service connection for congenital, developmental or familial disease could be granted if manifestations of the disease in service constituted aggravation of the condition. VAOPGCPREC 82-90 (July 18, 1990). However, developmental defects could not be incurred in or aggravated by service. In the Federal Circuit case of Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000), the court held that the determination regarding the pre-existence of a disorder must be based on all the evidence of record, including the veteran's in- service or post-service statements regarding the onset of symptoms. The Board notes that the service medical records reveal no notation of spina bifida or spondylolysis at the time of the veteran's November 1988 enlistment examination. However, a May 1990 service medical record from a weight reduction clinic indicates the veteran reported having a deformed vertebra on his treatment questionnaire. Additionally, the Board notes a February 1993 orthopedic consult that includes x-ray studies that revealed that he had a spina bifida occulta and spondylolysis of L4. Furthermore, the Board notes a March 2003 VA medical examination, where the examiner found the veteran's conditions of spina bifida occulta of S1, lumbarization of S1 and unilateral spondylolysis of S1 to have been developmental in nature, and the veteran has conceded as much. In view of the foregoing medical evidence, which indicates that these conditions are developmental defects, they cannot be a "disease or injury" for purposes of granting compensation benefits. However, the Board notes that, in May 1990, it was reported that the veteran complained of having chronic low back condition after engaging in physical training exercises. Similar complaints were noted in service medical records dated in January 1991, February 1991, July 1991 and January 1993. Additionally, in January 1993, the veteran was treated for injuries related to a motor vehicle accident. The veteran apparently hit a telephone pole while driving at a speed of 25-30 mph. He reported that his nose hit the dashboard and that he experienced some low back pain as a result of the accident. The examiner noted the veteran's back was tender in the L3-L5 regions. An examination was negative for cervical or thoracic tenderness. In subsequent January 1993 and February 1993 service medical examinations, the examiners noted that the veteran complained of having had an exacerbation of his low back pain after engaging in physical training. A February 1993 orthopedic consult included x-ray studies that revealed spina bifida occulta and spondylolysis of L4. The post-service medical records reflect further diagnoses of spina bifida, lumbarizaion and spondylolysis and continuing problems with the veteran's back on a regular basis. Significantly, VA treatment records show that the veteran was treated in April 2000 for chronic low back pain. It should be noted that, in March 2003, the veteran received a VA medical examination. The examiner stated that, upon his review of the service and private medical records, there was no competent evidence to show a cause of permanent or persistent aggravation of the veteran's low back pain. The examiner characterized the veteran's exacerbations of the back as minor and found that they were consistent with the developmental abnormality of his lumbar spine. Additionally, the examiner did not believe the January 1993 motor vehicle accident was severe enough in nature to cause the veteran further complications with his back. He based this opinion on the fact that the veteran did not require any follow-up care at the time of the accident. The examiner attributed the veteran's low back pain to his overweight condition and to his bony defect in the lumbar spine. Although the VA examiner's opinion is persuasive in showing the developmental nature of the demonstrated spina bifida, lumbarization and spondylolysis, the Board find the evidentiary record to be evenly balanced in showing that the the veteran had experienced chronic low back pain since suffering repeated injuries during service. It is clear that the veteran did not exhibit such a level of disability manifested by chronic low back pain prior to entering service. The recently identified chronic low back pain in the Board's opinion constitutes a superimposed disability that could be due to injuries that were shown to have been suffered in service. Given the continuous nature of the symptomalogy since service, the Board finds that the veteran now has a disability manifested by chronic low back pain that as likely as not was incurred in service. By extending the benefit of the doubt to the veteran, service connection for chronic low back pain is warranted. ORDER Service connection for a disability manifested by chronic low back pain is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2