Citation Nr: 1435401 Decision Date: 08/08/14 Archive Date: 08/20/14 DOCKET NO. 12-01 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been presented to reopen a service connection claim for a low back condition and, if so, whether service connection may be granted. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. As discussed in further detail below, the Board is reopening the claim for service connection because new and material evidence has been received; however, as further development is needed prior to adjudication, the reopened claim is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a March 1993 rating decision, the RO denied the Veteran's claim of service connection for a low back condition based on a finding that the Veteran was not diagnosed with a low back disability. In a letter dated April 1993, the RO notified her of the determination and of her appellate rights, but she did not appeal the determination and the decision became final. 2. The evidence received since the March 1993 rating decision is not duplicative or cumulative of evidence previously of record and raises a possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The March 1993 rating decision that denied service connection for a low back condition is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a low back condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for a low back condition. The record reflects that she previously filed a claim for such benefits, which was denied in a March 1993 rating decision. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2013). The Veteran has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200-20.202, 20.302(a). Here, the Veteran did not file a NOD with the March 1993 rating decision that denied service connection for a low back condition, and no additional evidence pertinent to the issue was physically or constructively associated with the claims file within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2013); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). Thus, the March 1993 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 20.1103. Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered if new and material evidence is presented as to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is "new" when it was not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). Evidence is "material" when, taken by itself or when considered with previous evidence, it relates to an unestablished fact necessary to substantiate the claim. Id. The regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim "must be read as creating a low threshold." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Id. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that new and material evidence has been presented such that the Veteran's service connection claim should be reopened. The Veteran submitted medical records showing that she has been diagnosed with facet arthropathy of the lumbar spine. See February 2008 Medical Record. This evidence, submitted after the March 1993 initial rating decision, supports a finding that the Veteran has a current low back disability. The evidence is new and material because it relates to a prior unestablished fact necessary to substantiate the claim, i.e. that the Veteran has a current disability. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 118. Thus, the Board finds that the Veteran's claim of entitlement to service connection for a low back condition should be reopened for a de novo review on the merits. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a low back condition; to this extent, the appeal is granted. REMAND On appeal, the Veteran argues that the VA has a duty to assist her in substantiating her claim by providing her with a VA examination. See November 2009 NOD. The Board finds that the VA's duty to assist by providing a VA examination has been triggered. First, the Veteran has submitted medical records showing that she has been diagnosed with a current low back disability, facet arthropathy of the lumbar spine. Additionally, the Veteran's service treatment records (STRs) show that she was treated for low back pain during service. See July 1986 STR. Although the low back pain was apparently assessed as a urinary tract infection, given the low threshold for obtaining a medical opinion, one will be sought. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (noting that the third element requiring that the evidence "indicates" that there "may" be a nexus is a "low threshold"). Accordingly, the case is REMANDED for the following action: 1. Invite the Veteran to identify and provide contact information for any medical providers who treated her for her low back condition. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records. 2. Invite the Veteran to submit lay statements and medical evidence from herself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of any in-service and post-service symptoms of her back disorder. She should be provided an appropriate amount of time to submit this evidence. 4. Then schedule the Veteran for an appropriate VA examination to determine the current nature, onset and etiology of her low back condition. The entire record (i.e., the paper claims file and all additional documents contained in Virtual VA and the Veterans Benefits Management System) should be made available to, and reviewed by, the examining VA clinician(s), and examination report(s) should note that such evidentiary review took place. All indicated studies should be performed, and all findings should be reported in detail. After a review of the relevant records and an examination of the Veteran, the examiner should provide answers to the following questions: a. Is it at least as likely as not that any current low back condition is related to or had its onset in service? b. Is it at least as likely as not that the Veteran's low back condition was caused by her service-connected left knee condition? c. Is it at least as likely as not that the Veteran's low back condition has been aggravated by her service-connected left knee condition? (The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.) If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. In answering these questions, the examiner should acknowledge and discuss the Veteran's own assertions, and any other lay evidence of record, which addresses the observable symptoms associated with her low back condition. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided. 5 After completing the requested actions, the claim should be re-adjudicated. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs