Citation Nr: 0809995 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-11 015A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder? 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The veteran had active military service from October 1967 to July 1969 and from February 2003 to May 2004. An April 2006 VA record states that the appellant was then serving a second tour of active duty in Iraq, however, the beginning and ending dates of that tour are currently unknown. This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Togus, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA) that found that new and material evidence had not been submitted to reopen the claim for service connection for a low back disorder. Additional records were obtained, and the RO reopened the claim in the January 2006 statement of the case but denied it on the merits. The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the appellant that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant. Hence, the style of the issues noted on the title page. For the reasons outlined below, this appeal is REMANDED, in part, to the RO via the Appeals Management Center (AMC) in Washington, D.C. Consistent with the instructions below, VA will notify the veteran of any further action required on his part. FINDINGS OF FACT 1. The September 2002 rating decision that denied entitlement to service connection for a low back disorder is final. 2. The evidence received since the September 2002 rating decision relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of changing the prior outcome. CONCLUSION OF LAW The evidence received since the final September 2002 rating decision that denied 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, 20.302, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act In 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007). Given that the claim is reopened the Board need not address at this time whether VA has fully complied with the duty to assist and notice provisions of the Act. Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes his written contentions, service treatment records, private and VA medical records, lay statements, and personal testimony. 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim 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. VA must review all of the evidence submitted since the last final 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. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The RO denied the veteran's initial claim for service connection for a low back disorder in a September 2002 rating decision. In that decision, the RO found that the evidence did not show that the veteran had a chronic low back disorder that began in or was otherwise related to his military service, including any service-incurred back injuries. The veteran was informed on the determination under cover letter dated September 24, 2002. He did not, however, file a notice of disagreement with the determination. Hence, the decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. The evidence of record at the time of the RO's September 2002 rating decision included the veteran's service treatment records which showed that he sustained a contusion on his back when he was hit by a Jeep in February 1969. Orthopedic evaluation two weeks after the incident was normal and there was no evidence of any currently diagnosed chronic low back disorder. The RO concluded that without evidence of a current disability, service connection for a low back disorder was not warranted. The veteran submitted a request to reopen his claim for service connection for a low back disorder in July 2004. The additional evidence associated with the veteran's claims file includes duplicate copies of his service treatment records first period of active duty, additional service treatment records from his second period of active duty, private treatment records, VA treatment and examination reports, and testimony provided at a hearing at the RO in April 2006. The additional service treatment reports show that the veteran was seen for complaints of low back pain in May and December 2003. Additionally, an April 2005 Emergency Department Note from St. Joseph's Hospital showed that the veteran was treated for a right lower back strain. The veteran and his spouse testified that he initially hurt his back in Vietnam when he was hit by the Jeep and he has experienced back pain since that time. While a July 2005 VA examiner found that the appellant did not have a current low back disorder a July 2005 VA computerized tomography scan showed end plate spurring at L3-4 and L4-5. The radiologist diagnosed mild L5-S1 facet arthopathic changes. Given the fact that this claim was previously denied on the basis that there was then no current low back disorder, the Board finds the July 2005 computerized tomography findings sufficient to reopen the claim. ORDER New and material evidence has been submitted and the claim of entitlement to service connection for a low back disorder is reopened. REMAND As noted above, the veteran in April 2006 was noted to be serving on active duty in Iraq. Medical records from that tour are not of record. Accordingly, further development is in order. Therefore, this case is REMANDED for the following action: 1. The RO should contact the Maine National Guard and secure the dates of the veteran's service after May 2004. The Board is particularly interested in discovering the dates of any active duty, active duty for training, or inactive duty for training after May 2004. Further, the National Guard should be requested to provide any and all medical records pertaining to care provided after May 2004. The RO must specifically document what attempts were made to locate these records. If they are unavailable the RO must indicate in writing that further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. If any medical records secured pursuant to instruction one show treatment for back pain, or evidence of a back disorder, the veteran should be scheduled for a VA orthopedic examination to ascertain the nature and etiology of any current low back disability. All tests and studies deemed necessary to make this determination should be ordered. The claims folders must be made available to the physician for review. The physician must opine whether it is at least as likely as not that either a low back disorder is related to service or any event that occurred therein, to include his history of service in Iraq. The physician must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record. 3. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for the examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures. 5. Upon completion of the requested development above, the RO should readjudicate the claim. The RO is to make a determination based on the law and regulations in effect at the time of their decision, to include any further changes in VCAA and any other applicable legal precedent. If the benefit sought on appeal remains denied, the veteran and his representative must be provided a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response. 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. 2007). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs