Citation Nr: 1312670 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-00 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for a lumbar spine disorder. 2. Whether new and material evidence has been received with respect to a claim of service connection for bilateral foot disorders. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1982 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for back and foot conditions. The Veteran timely appealed those claims. The Veteran testified at a hearing before Decision Review Officer in March 2009; a transcript of that hearing is associated with the claims file. The Board considers the Veteran's lumbar spine and bilateral foot claims to be reopened and those reopened issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The May 1987 rating decision that denied service connection for a lumbar spine and bilateral foot disorders is final. 2. The May 1987 denial is an administrative or procedural denial of the claim; there was no decision on the merits in May 1987 which can be reconsidered, and the Veteran failed to participate in the claims process in April and May 1987 by failing to respond to any of VA's correspondence and by failing to report for his scheduled VA examination in May 1987. 3. The evidence received since the May 1987 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claims of service connection for lumbar spine and bilateral foot disorders, and raises a reasonable possibility of substantiating those claims. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a lumbar spine disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence has been received, and the claim of service connection for bilateral foot disorders is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As the instant decision reopens the claims of service connection for lumbar spine and bilateral foot disorders and remands for further development, no further discussion of VCAA compliance of that issue is required at this time. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed, within one year of the notice of the decision; or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received during an applicable appeal period following a RO decision (one year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); 38 C.F.R. §§ 3.156(b). New evidence is defined as 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. 38 C.F.R. § 3.156(a) (2012). The Veteran's initiated claims of service connection for lumbar spine and bilateral foot disorders in April 1987. The Veteran was scheduled for a VA examination in May 1987, to which he failed to report. Due to the Veteran's failure to report to his scheduled examination, the RO denied the Veteran's claims summarily on a basis of failure to prosecute the claim; the Veteran was informed of that denial in a June 1987 letter. The Veteran submitted a claim to reopen those claims in May 2007 with copies of his service treatment records. The Veteran's post-service VA and private treatment records, social security records, and lay evidence, particularly testimony at a March 2009 DRO hearing, demonstrates several bilateral foot and lumbar spine conditions. The Veteran additionally stated that he injured his back when he slipped and fell on a sheet of ice while marching in boot camp; he indicated that he was treated at a hospital for that injury and then continued the rest of his service. The Veteran further stated that the boots affected his feet and that while he never sought formal treatment for his feet, but that he was issued inserts to put under his toes when he walked in his boots. As no new and material evidence was received within the appeal period following the May 1987 rating decision, regarding the bilateral foot and lumbar spine disorders, the May 1987 rating decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). The Board notes that this case additionally appears to implicate 38 C.F.R. § 3.156(c), which potentially would allow a de novo review of this claim, rather than a claim requiring new and material evidence to reopen. The regulations state that notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. See 38 C.F.R. § 3.156(c)(1) (2012). However, the section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Record Research Center, or from any other official source. See 38 C.F.R. § 3.156(c)(2). In this case, the Board finds that 38 C.F.R. § 3.156(c) is not applicable in this case. First, the Board notes that there was no prior decision on the merits in this case. While the RO denied the Veteran's claim in May 1987, the denial was a procedural denial; the Veteran failed to pursue his claim, walked away from the claims process, and the RO administratively closed the claim due to his failure to participate in the claims process. Thus, the Board finds that the May 1987 denial is not a "decision" for the purposes of 38 C.F.R. § 3.156(c). Secondly, the Board notes that there is no basis on which to "reconsider" the claim, because the May 1987 denial never considered the claim in the first place. The Board notes that the May 1987 denial summarily denied the Veteran's claim because he failed to prosecute the claim. There was no evidence, positive or negative, considered at that time. The only reason for the May 1987 denial is that the Veteran failed to participate in the claims process. The merits of the case were not reached and therefore there was no initial consideration of the claim. Without any actual consideration of the merits of the case, VA is unable to "reconsider" the May 1987 denial at this time based on "additional evidence" that was not before VA at the time of the May 1987 denial; as no evidence was actually considered in the denial of the May 1987 decision there cannot be a "reconsideration" based on additional evidence that is now provided by the Veteran who is now willing to participate in the claims process. Finally, even if there was a decision to reconsider in this case on a de novo basis, the Board finds that 38 C.F.R. § 3.156(c)(2) provides that this section does not apply because the Veteran in this case failed to provide sufficient information to VA. The Veteran in this case failed to report for a VA examination that was scheduled in May 1987; he further failed to respond to any correspondence following submission of his April 1987 claim for benefits. It does appear that VA requested service department records on May 8, 1987, but after the Veteran failed to pursue or engage VA in the claims process VA summarily closed his claim, including ceasing attempts to obtain any service department records. The Veteran's failure to participate in the claims process in April and May 1987 is a failure to provide sufficient information to VA in order to identify and obtain records. Thus, 38 C.F.R. § 3.156(c)(2) states that this section does not apply to this case. Furthermore, the policy of 38 C.F.R. § 3.156(c) is to protect a Veteran from being denied a claim on the merits based on a failure by VA to obtain all of relevant evidence that would have been in the government's possession at the time of the previous decision. If VA considers the claim on the merits, but there was evidence in the government's possession that VA failed to obtain and consider in the adjudication of the prior claim, then such constructively-possessed evidence would be reconsidered when later obtained, to the Veteran's benefit-in essence, 38 C.F.R. § 3.156(c) is about preserving the earliest possible effective date for the Veteran in light of a potential failure on VA's part to obtain records in the government's possession, which the Veteran cannot be responsible for obtaining on his own behalf. In this case, the policy of 38 C.F.R. § 3.156(c) is not in line with the Veteran in this case because, quite frankly, he is not the intended beneficiary of that regulation. The intended beneficiary of the regulation is a Veteran who, through no fault of his own, was denied on the merits of his claim based on VA's failure to obtain evidence in the government's possession which would be helpful and substantiate his claim. In this case, the Veteran walked away from the claims process, failing to report for a scheduled VA examination and never responding to any correspondence from VA after filing his April 1987 claim for benefits. The RO administratively closed the claim in May 1987 on the basis of the Veteran's failure to participate in the claims process, not on the basis of the merits of the case or the evidence or lack thereof in the claims file at that time. There was no decision in May 1987, and certainly there is nothing in the record from May 1987 to reconsider; the Veteran failed to provide any information on which to prosecute and adjudicate his claim at that time. Thus, the Veteran should not benefit from a liberalizing regulation meant to protect Veterans from VA's failure to obtain evidence in its possession because of his own negligence and neglect of responsibility to provide VA information on which to adjudicate his claim. Quite simply, the policy reasons for the regulation in this case are not in line with the Veteran's situation, even if there was a decision on the merits to reconsider in this case. Accordingly, the Board finds that 38 C.F.R. § 3.156(c) does not apply in this case because the Veteran failed to participate in the claims process at the time of his previous claim in April and May 1987. See 38 C.F.R. § 3.156(c)(1), (c)(2). Therefore, even though new service department records were obtained since the May 1987 rating decision, new and material evidence is still necessary in order to reopen claims of service connection for lumbar spine and bilateral foot disorders at this time. Finally, the Veteran was appropriately notified of that rating decision in a June 1987 letter and no notice of disagreement was received within one year of that notification. Accordingly, the May 1987 rating decision is considered final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Therefore, new and material evidence is required to reopen the claims of service connection for lumbar spine and bilateral foot disorders, regardless of how the RO characterized the issues. See 38 U.S.C.A. § 5108 (West 2002); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. On the basis of the preceding evidence, as noted above, the Board finds that the above constitutes new and material evidence, as it relates directly to whether the Veteran has lumbar spine and bilateral foot disorders and alleges that such began in or are related to active service. It additionally provides more information surrounding the etiology of the Veteran's claimed lumbar spine and bilateral foot disorders. Finally, this evidence raises a reasonable possibility of substantiating the claims. As such, the requirements under 38 C.F.R. § 3.156(a) have been met and the claims are reopened. ORDER New and material evidence having been received, claims of service connection for lumbar spine and bilateral foot disorders are reopened, but to that extent only are those claims granted. REMAND With regards to the reopened lumbar spine claim, the Board notes that the Veteran had a VA examination in December 2010. In that examination, the examiner diagnosed the Veteran with lumbar degenerative disc disease; the Veteran and his representative note that he has potentially also been diagnosed with spondylosis. Regardless, the Board notes that the examiner's opinion is inadequate, in that the examiner stated that there was no evidence of any severe trauma to his lumbar spine. The Board notes that the Veteran stated in his hearing that during boot camp he slipped and fell on some ice and injured his back; he further stated that he intermittently had back pain throughout service and after service. The Board notes that a February 1982 treatment record demonstrates that the Veteran fell and injured his back at that time; his separation examination, while negative for any lumbar spine disorder, noted complaints of recurrent back pain at that time on his report of medical history. Thus, the examiner's opinion that there was no evidence of "severe trauma" is inadequate in this case, as the examiner does not discuss why the 1982 injury in service and continued back pain complaints were not considered a "severe" enough trauma to cause the Veteran's lumbar spine disorder; the examiner additionally did not address whether there is any lumbar spondylosis and whether such is related to service. Accordingly, the Board finds that a remand is necessary in order to obtain a new VA examination in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). The Board notes that the Veteran and his representative have asked for a specialist in this case, and the RO/AMC should endeavor to accommodate that request in this case. The Board additionally notes that the Veteran appears to have had two motor vehicle accidents, the last one in 1997 during which he sustained a neck injury which is not claimed at this time. An August 2005 VA treatment note, however, demonstrates that the Veteran had chiropractor treatment from 1989 to 1995. Thus, on remand, the RO/AMC should attempt to elicit information from the Veteran regarding any such treatment and to obtain those records in accordance with the duty to assist. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Turning to the Veteran's foot claims, the Board notes various diagnoses post-discharge, including bilateral asymptomatic pes planus on his 1997 National Guard enlistment examination, bilateral bunions-the right of which he states he has had for over 20 years-and right hallux valgus. The Board notes that the Veteran underwent a VA examination for his feet in February 2008, but only a left bunion was diagnosed and no opinion was rendered on whether the above noted conditions were related to military service. Accordingly, the Board finds that a VA examination should be afforded the Veteran on remand which addresses whether his multiple foot problems are related to his service. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Board notes that the examiner in a January 2008 examination noted that the Veteran had a whiplash injury to his cervical spine as a result of his service in Iraq in 2006. The Board is confused as to this statement, as it appears to indicate that the Veteran had potentially more service and other in-service injuries or events which may implicate possible new etiologies of the Veteran's claims or aggravation aspects of service connection, which are not currently implicated by the evidence of record. Additionally, it does not appear that any of the Veteran's medical records from any 2006 period of service are of record. On remand, the Board asks the RO/AMC to confirm the Veteran's service is limited solely to the 1982-1986 period noted above, to include whether the Veteran was deployed to Iraq in 2006; if so, then any outstanding service treatment records associated with that period of service should be obtained and associated with the claims file. Additionally, the RO/AMC should attempt to verify whether the Veteran had any active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) after his discharge from service in 1986. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's dates of active service, ACDUTRA and INACDUTRA, to include any active service in 2006 in Iraq. 2. Attempt to obtain through official sources any of the Veteran's service treatment records for any period of service that are not currently associated with the claims file, including any official records of which only copies exist in the file. If the records are unavailable and further attempts would be futile, or any such records do not exist, the claims file should be so annotated with a formal finding of unavailability, and the Veteran should be notified of such. 3. Obtain any relevant VA treatment records from the East Orange VA Medical Center, or any other VA medical facility that may have treated the Veteran, since May 2007 and associate those documents with the claims file. 4. Ask the Veteran to identify any private treatment that he may have had for any of his bilateral foot and lumbar spine disorders, including any chiropractor treatment he may have received from 1989 to 1995 and any other evidence which is not already of record. After securing the necessary release forms, attempt to obtain and associate those identified treatment records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 5. Schedule the Veteran for a VA examination with a specialist, including a neurosurgeon or some other appropriately qualified specialist, in order to determine whether any current lumbar spine disorder is related to service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify any lumbar spine disorders found, including spondylosis and degenerative disc disease. The examiner should then opine whether any disorders found more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or caused by the Veteran's active service. The examiner should specifically discuss the noted February 1982 treatment for a fall in service and his lay evidence noting that such a fall occurred on ice during a boot camp training exercise. The examiner should also discuss the Veteran's complaints of recurrent back pain on his separation examination in January 1986 and his lay statements regarding continuity of symptomatology since discharge from service. The examiner should also discuss the December 2010 examiner's opinion. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Schedule the Veteran for a VA examination an appropriate examiner in order to determine whether any current bilateral foot disorders are related to service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify any bilateral foot disorders found, including bilateral pes planus, bilateral hallux valgus, and bilateral bunions. The examiner should then opine whether any disorders found more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or are caused by the Veteran's active service. The examiner should specifically discuss the Veteran's lay evidence of complaints foot problems while in service, without any formal treatment, as well as issuance of inserts to put under his big toes. The examiner should discuss any of the Veteran's lay evidence with respect to continuity of symptomatology after discharge from service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 7. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for lumbar spine and bilateral foot disorders. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs