Citation Nr: 0836784 Decision Date: 10/27/08 Archive Date: 11/05/08 DOCKET NO. 95-42 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this case was previously before the Board in October 2002, the Board found that the veteran had submitted new and material evidence to reopen his claim of entitlement to service connection for a low back disability; however, the Board denied the veteran entitlement to service connection for a low back disability on the merits. The veteran appealed the Board's October 2002 decision to the United States Court of Appeals for Veterans Claims (Court), which in a June 2004 decision and order, vacated the Board's decision and remanded the matter for further consideration. In a March 2008 per curiam opinion, the United States Court of Appeals for the Federal Circuit (Federal Circuit) summarily affirmed the Court's June 2004 decision. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for a low back disorder by rating decisions dated in October 1985, July 1998, and October 1999. The veteran was notified but did not appeal any of the decisions. 2. The RO's October 1999 decision represents the last final disallowance of entitlement to service connection for a low back disorder on any basis. 3. The undated VA physician letter received in May 2001 bear directly and substantively on the matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. CONCLUSIONS OF LAW 1. The October 1985, July 1998, and October 1999 RO decisions that denied service connection for a low back disorder are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2007). 2. The evidence submitted subsequent to the RO's decision denying the claim of entitlement to service connection for a low back disorder is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. However, when an appellant seeks to reopen a claim based on new evidence, the Board must first determine whether new and material evidence has been submitted. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). In 1998, the United States Court of Appeals for the Federal Circuit clarified the standard to be used for determining whether new and material evidence has been submitted. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence is defined as evidence not previously submitted which bears directly and substantively on the matter under consideration. It can be 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 38 C.F.R. § 3.156 (2001); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Prior to Hodge, but interpreting the same regulation, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeal) (the Veterans Claims Court) found that when a veteran sought to reopen a claim based on new evidence, the Board must first determine whether the additional evidence is "new" and "material." If the Board determined that new and material evidence had been added to the record, the claim was reopened and the Board evaluated the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Board notes that the law was amended to define "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. Under the amended regulations, if the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2007). Due to the effective date of the amended regulation, the new standard is not applicable to the veteran's claim. Historically, the Salt Lake City RO denied the veteran's claim for a low back disability by rating decision dated in October 1985. In July 1998 and October 1999, the Salt Lake City RO again denied his claim for a low back disorder on the basis that the evidence was insufficient to establish service connection for a low back disorder. He was notified but did not appeal any decision. In February 2000, the veteran filed the current claim, which was denied by a rating decision dated in November 2000. This appeal is before the Board from his unsuccessful attempt to reopen his claim for entitlement to service connection for a low back disorder. After a review of the evidence, the Board finds that the veteran's claim should be reopened. Of note, subsequent to the most recent denial, the veteran submitted a written statement from a VA treating physician to the effect that the veteran had "a history of back trauma (in 1970 while in the service) which may have contributed to or accelerated advancement of degenerative joint disease of the lumbar spine." Because the statement focuses on the veteran's assertions of a relationship between his current complaints and in-service back injuries, the Board is of the opinion that it bears directly and substantively on the matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. As such, the claim is reopened. As the claim for service connection for a low back disability has been reopened the Board will not discuss whether proper notice regarding reopening was issued. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a low back disorder is reopened and the appeal is granted to this extent. REMAND The veteran seeks entitlement to service connection for a low back disability. As the Court pointed out in its June 2004 decision, while the veteran's claim was pending, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted, and that liberalizing law is applicable to the veteran's claim because it was pending before VA. The Act and its implementing regulations (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)) essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In the decision, the Court emphasized that these laws and regulations include notification provisions. In this regard, the Board notes that as part of the notice, VA is to specifically notify the claimant and his representative of what evidence is to be provided by the claimant and what evidence VA will attempt to obtain on behalf of the claimant. As such, a VCAA letter must specifically: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). The Court citing its decisions in Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16 Vet. App. 370 (2002), vacated the Board's decision and remanded the case because VA had failed to satisfy its duty to notify under the VCAA. The Court explained that VA had not specifically provided the appellant with notice of the allocation of the burdens for obtaining evidence necessary to his claim, or of the evidence necessary to substantiate his claim. Accordingly, on remand, the RO must send the appellant a letter advising him of which portion of the evidence he is to provide, which part, if any, the RO will attempt to obtain on his behalf, and a request that the appellant provide any evidence in his possession that pertains to this claim. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(c). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. The Board notes that the veteran receives treatment from the VA Medical Center in Nashville, Tennessee. A review of the claims folder reveals that no medical treatment records dated since June 2003 have been associated with the claims folder. Accordingly, the AMC should attempt to obtain VA clinical records pertaining to the veteran's treatment that are dated since June 2003. A review of the claims folder reveals that the veteran was granted Social Security Disability Insurance benefits in April 2002. However, the records regarding this grant of benefits, with the exception of the Social Security Administration's decision, have not been associated with the claims folder and the record contains no indication that any attempt was made to obtain the veteran's complete Social Security Administration (SSA) record. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Voerth v. West, 13 Vet.App. 117, 121 (1999); Baker v. West, 11 Vet.App. 163, 169 (1998) (when VA put on notice of SSA records prior to issuance of final decision, Board must seek to obtain records); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992) (VA has statutory duty to acquire both SSA decision and supporting medical records pertinent to claim); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This appeal must be remanded to obtain the veteran's complete SSA record. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran and his representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain, what, if any, information and evidence not previously provided to VA is necessary to substantiate the veteran's claim. The letter should indicate which portion of the evidence, if any, is to be provided by the veteran and which portion, if any, VA will attempt to obtain on his behalf. 2. Request medical records from the Nashville, Tennessee, VA Medical Center (and any other indicated facilities) dating from June 2003, to the present. Also attempt to obtain any other pertinent treatment records identified by the veteran during the course of the remand, provided that any necessary authorization forms are completed. If no further treatment records exist, the claims file should be documented accordingly. 3. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the veteran must be informed in writing. 4. Thereafter, readjudicate the veteran's claim. If the benefit sought on appeal is not granted, the RO should issue the veteran and his representative a supplemental statement of the case and provide the veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs