Citation Nr: 0820097	
Decision Date: 06/19/08    Archive Date: 06/25/08

DOCKET NO.  06-20 428	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Whether new and material evidence has been presented to 
reopen the claim of service connection for a chronic upper 
back condition to include degenerative joint disease.

2. Whether new and material evidence has been presented to 
reopen the claim of service connection for a chronic lower 
back condition to include degenerative joint disease.

3. Whether new and material evidence has been presented to 
reopen the claim of service connection for depression.

4. Whether new and material evidence has been presented to 
reopen the claim of service connection for fibromyalgia.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission



WITNESS AT HEARING ON APPEAL
Veteran

ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Associate Counsel


INTRODUCTION

The veteran, who is the appellant, served on active duty from 
July 1988 to September 1990.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision in October 2005 of a 
Department of Veterans Affairs (VA) Regional Office (RO).

In September 2006, the veteran appeared at a hearing before a 
Decision Review Officer.  The transcript of that hearing is 
in the record.

The veteran has submitted additional medical evidence in 
support of her claims, but did not waive initial 
consideration of the evidence by the RO, but as the 
application to reopen the claims of service connection is 
resolved in the veteran's favor, the only matter disposed of 
in this decision, the Board finds no prejudice to the veteran 
in proceeding with the present decision.

The claims of service connection for a chronic upper and 
lower back conditions to include degenerative joint disease, 
for depression, and for fibromyalgia are REMANDED to the RO 
via the Appeals Management Center in Washington, DC.




FINDINGS OF FACT

1. In a rating decision in February 2004, the RO denied the 
veteran's application to reopen the claims of service 
connection for upper and lower back conditions to include 
degenerative joint disease and fibromyalgia as well as 
service connection for depression; after the veteran was 
notified of the adverse determination and of her procedural 
and appellate rights, she did not appeal the adverse 
determination. 

2. The additional evidence presented since the rating 
decision in February 2004 by the RO relates to an 
unestablished fact necessary to substantiate the claims, and 
raises a reasonable possibility of substantiating the claims. 


CONCLUSIONS OF LAW

1. The rating decision in February 2004, by the RO, denying 
the application to reopen the claims of service connection 
for an upper and lower back conditions to include 
degenerative joint disease and fibromyalgia, as well as 
service connection for depression, became final.  38 U.S.C.A. 
§ 7105(c) (West 2002 & Supp. 2007).

2. The additional evidence presented since the rating 
decision in February 2004 by the RO, denying the veteran's 
application to reopen the claims of service connection for 
upper and lower back conditions to include degenerative joint 
disease and fibromyalgia, as well as service connection for 
depression, is new and material, and the claims of service 
connection are reopened.  38 U.S.C.A. § 5108 (West 2002 & 
Supp. 2007). 




The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented, in part, at 38 C.F.R § 3.159, amended VA's 
duties to notify and to assist a claimant in developing 
information and evidence necessary to substantiate the 
claims.

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claims, which information and evidence 
that VA will seek to provide, and which information and 
evidence the claimant is expected to provide.  Under 38 
C.F.R. § 3.159, VA must request that the claimant provide any 
evidence in the claimant's possession that pertains to the 
claims.

In a new and material claim, the VCAA notice must include 
notice of the evidence and information that is necessary to 
reopen the claim and the evidence and information that is 
necessary to establish the underlying claim for the benefit 
sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: 1) 
veteran status; 2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).

As the application to reopen the claims of service connection 
is resolved in the veteran's favor, the only matter disposed 
of in this decision, further discussion here of compliance 
with the VCAA with regard to the claims to reopen is not 
necessary.  




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Procedural History and Evidence Previously Considered

In a rating decision in February 2004, the RO denied the 
veteran's application to reopen the claims of service 
connection for a chronic upper and lower back condition to 
include degenerative joint disease and fibromyalgia on the 
grounds that the evidence submitted was not new and material 
because it did not bear directly and substantially upon the 
issue of service incurrence.  The RO also denied the claim of 
service connection for depression on the grounds that there 
was no evidence that etiologically linked the veteran's 
depression to service.  After the RO notified the veteran of 
the adverse determination and of her procedural and appellate 
rights, the veteran did not appeal the adverse determination 
and the determination became final by operation of law based 
on the evidence record.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 
3.104. 

The pertinent evidence of record and considered by the RO at 
the time of the rating decision in February 2004 is 
summarized as follows:  

The service medical records document a suicide attempt and a 
diagnosis of personality disorder with depressed mood.  In 
August and September 1990, the veteran complained of back 
pain, and the assessment was mechanical low back pain.  On 
separation examination, history included recurrent back pain 
and depression or excessive worry.  The examiner noted 
suicidal ideation, feelings of depression, and a history of 
dependent/immature personality traits with depressed mood, 
and mechanical low back pain.  The service medical records, 
including the report of separation of examination, do not 
document a complaint, finding, history, treatment, or 
diagnosis of fibromyalgia or degenerative joint disease.  

The service personnel records to include separation documents 
contained a finding of service discharge by reason of a 
personality disorder.  



After service, VA medical records from September 2001 through 
December 2002, documented diagnoses and treatment for 
depression, fibromyalgia, back pain, and degenerative joint 
disease of the cervical spine along with a history of an in-
service injury.

On VA psychiatric examination in August 2003, the diagnosis 
was depression less likely than not related to military 
service.  

In statements in support of her claim, the veteran related 
her depression to an incident of sexual assault in service.    

Current Application

Although the prior rating decision in February 2004 became 
final, it may nevertheless be reopened if new and material 
evidence is presented.  38 U.S.C.A. §§ 7105(c) and 5108. 

The veteran's application to reopen the claims of service 
connection was received in June 2005.  

As the application to reopen the claims of service connection 
was received in June 2005, the current regulatory definition 
of new and material evidence under 38 C.F.R. § 3.156 applies. 

New evidence means existing evidence not previously submitted 
to agency decision makers.  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.  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.

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

The Additional Evidence and Analysis

The additional evidence consists of the following documents: 

Private medical records from July 2002 through September 2004 
contain X-ray evidence of osteoarthritis of the cervical 
spine, fibromyalgia, and a diagnosis of depression.

In September 2006, the veteran testified that she injured her 
back in service when she fell on concrete and other 
servicemen fell on her.  She stated that she sought treatment 
at sick call and was placed on bed rest.  The veteran 
indicated that she was diagnosed with fibromyalgia in 2002.  

VA records show that in February 2008 the veteran was treated 
for several medical conditions to include fibromyalgia, 
cervicalgia, depression and degenerative joint disease.  A VA 
physician expressed the opinion that it was as likely that 
depression and fibromyalgia with onset during service were 
causing ongoing physical and mental symptoms.   

The Board finds that the opinion of the VA physician in 
February 2008 is new and material evidence because the 
opinion relates to an unestablished fact necessary to 
substantiate the claims, that is, a nexus between the 
veterans's upper and lower back conditions, fibromyalgia, and 
depression to service, the absence of which was the reason 
the claims were previously denied.  38 C.F.R. § 3.156(a).  
Accordingly, the claims are reopened.  38 U.S.C.A. § 5108. 




ORDER

As new and material evidence has been presented, the claim of 
service connection for a chronic upper back condition to 
include degenerative joint disease is reopened, and to this 
extent only the appeal is granted.

As new and material evidence has been presented, the claim of 
service connection for a chronic lower back condition to 
include degenerative joint disease is reopened, and to this 
extent only the appeal is granted.

As new and material evidence has been presented, the claim of 
service connection for fibromyalgia is reopened, and to this 
extent only the appeal is granted.

As new and material evidence has been presented, the claim of 
service connection for depression is reopened, and to this 
extent only the appeal is granted.


REMAND

In February 2008, the veteran submitted additional evidence 
and she did not waive the right to have the evidence 
initially considered by the RO.  As this evidence has not 
been addressed in a supplemental statement of the case, it is 
referred to the RO for consideration.  38 C.F.R. §§ 19.37(b), 
20.1304(a), (c).
 
Additionally, the Board finds that the medical evidence of 
record is insufficient to decide the claims of service 
connection for chronic upper and lower back conditions to 
include degenerative joint disease, and the claims of service 
connection for fibromyalgia and depression.  Therefore 
further evidentiary development is necessary. 

Accordingly, the case is REMANDED for the following action:

1. Ensure VCAA compliance.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  

2. Schedule the veteran for a VA 
orthopedic examination. The claims folder 
must be made available for review by the 
examiner. The examiner is asked for 
opinions on the following:

a). Determine whether the veteran has a 
chronic lower back disability to include 
degenerative joint disease, and, if so, 
whether it is at least as likely as not 
that the current lower back disability is 
related to service.

b). Determine whether the veteran has a 
chronic upper back disability to include 
degenerative joint disease of the 
cervical spine, and, if so, whether it is 
at least as likely as not that the 
current upper back disability is related 
to service.  

c). Determine whether it is at least as 
likely as not that a diagnosis of 
fibromyalgia is appropriate.  If so, is 
it at least as likely as not that the 
fibromyalgia is related to service or to 
a back disability incurred in service. 

In formulating the opinions, the examiner 
is asked to consider the following:

The service medical records document 
complaints of low back pain in August and 
September 1990, and the veteran's 
September 1990 separation examination 
report which recorded a history of 
recurrent back pain, along with a 
clinical finding of mechanical low back 
pain.  



The service medical records do not 
document a complaint, finding, history, 
treatment, or diagnosis of upper back 
pain, fibromyalgia or degenerative joint 
disease. 

After service, evidence of back pain and 
degenerative joint disease of the 
cervical spine were first documented in 
2001.

In formulating the opinions, the 
examiner is asked to consider that the 
term "at least as likely as not" does 
not mean "within the realm of 
possibility, rather it means that the 
weight of the medical evidence both for 
and against the conclusion is so evenly 
divided that it is as medically sound 
to find in favor of the conclusion as 
it is to find against the conclusion.

3. Schedule the veteran for a VA 
psychiatric examination to determine 
whether the veteran has depression and, if 
so, whether depression is either a 
manifestation of a personality disorder or 
a separate psychiatric disorder.  If the 
depression is a separate psychiatric 
disorder is it related to the veteran's 
symptoms during service?  The claims 
folder must be made available for review 
by the examiner. 

4. After the above development is 
completed, adjudicate the claims.  If any 
benefit remains denied, furnish the 
veteran a supplemental statement of the 
case and return the case to the Board.

The veteran 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. 2007).




______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs