Citation Nr: 0810989	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  05-21 171	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim for entitlement to service connection for a 
low back disability. 

2.  Entitlement to service connection for bilateral carpal 
tunnel syndrome.   


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Jeng, Associate Counsel



INTRODUCTION

The veteran had active duty from October 1985 to August 1991.  

This matter comes before the Board of Veterans' Appeals 
(Board) from an  
April 2004 rating decision.  

The issues of service connection for a low back disability 
and bilateral carpal tunnel syndrome 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 RO denied an application to reopen a claim for 
service connection for a back disability in September 2002 
and the veteran did not appeal.  

2.  Evidence submitted since then includes evidence which is 
not cumulative or redundant, relates to an unestablished fact 
necessary to substantiate the claim for service connection 
for a back disability, and raises a reasonable possibility of 
substantiating the claim


CONCLUSIONS OF LAW

1.  The September 2002 RO decision that denied an application 
to reopen the claim for service connection for a back 
disability is final.  38 U.S.C.A. § 7105 (West 2002).  

2.  New and material evidence has been submitted to reopen a 
claim for service connection for a back disability.  38 
U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 
(2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board reopens the veteran's claim of 
service connection for low back disability and remands it for 
further development.  As such, no discussion of VA's duty to 
notify and assist is necessary.

The RO initially denied service connection for a back 
disability in February 1994.  Applications to reopen a claim 
for service connection for back disability were denied in 
August 1996, September 1997, and September 2002.  The veteran 
was informed of those decisions and he did not file a timely 
appeal.  The September 2002 decision denying the application 
to reopen for service connection for a back disability is 
final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.302, 20.1103.  

The evidence before VA at the time of the prior final 
decisions consisted of the veteran's service medical records, 
VA examination reports, and private medical reports.  The RO 
initially denied service connection for a back disability in 
February 1994 finding that a one-time in-service complaint 
related to the back was acute and transitory and not related 
to current disability.  Subsequently, in August 1996 and 
September 1997, the RO denied applications to reopen service 
connection for a back disability citing that no new and 
material evidence had been provided.  Then, in September 
2002, the RO again denied an application to reopen service 
connection for a back disability because no new and material 
evidence had been received. 

In April 2004, the veteran sought to reopen his claim for a 
back disability.  To reopen the claim, the veteran must 
submit new and material evidence.  See 38 U.S.C.A. § 5108.

New evidence means existing evidence not previously submitted 
to agency decision makers.  38 C.F.R. § 3.156(a).  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.  Id.

If new and material evidence is submitted, the claim will be 
reopened and adjudicated on the merits.  38 U.S.C.A. § 5108.  
See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 
2001).  

The new evidence received since the September 2002 rating 
decision includes a January 2006 letter from L.E.F. Clavell, 
M.D. noting the veteran's history of his duties during 
service and opining that the veteran's back disability is a 
direct consequence of the nature of the veteran's service 
duties.  This evidence was not previously considered and 
raises a reasonable possibility of substantiating the claim.  
The veteran has therefore presented new and material evidence 
to reopen the claim for service connection.  Accordingly, the 
petition to reopen is granted and consideration may be given 
to the entire evidence of record without regard to any prior 
denials.   


ORDER

New and material evidence having been submitted, the claim 
for service connection for low back disability is reopened, 
and to this extent only, the appeal is granted. 

REMAND

As to the claim for service connection for a back disability, 
during the pendency of this appeal, on March 3, 2006, the 
U.S. Court of Appeals for Veterans Claims (Court) issued a 
decision in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 
notice requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 
38 C.F.R. § 3.159(b) (2007) apply to all five elements of a 
service connection claim, including the degree of disability 
and the effective date of an award.  On review of the record, 
the Board finds that the veteran has not been provided notice 
about disability ratings and effective dates for the award of 
benefits, or an explanation as to the type of evidence that 
is needed to establish both a disability rating and an 
effective date.  Such notice must be provided prior to the 
adjudication of the issue of service connection for a back 
disability.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed.Cir. 
2006).  It is the RO that must insure compliance with the 
notice provisions in the first instance.  See Quartucccio v. 
Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 
Vet. App. 370 (2002).  Accordingly, on remand, proper notice 
in accordance with Dingess/Hartman must be provided to the 
veteran.

VA's duty to assist includes a duty to provide a medical 
examination or obtain a medical opinion when it is deemed 
necessary to make a decision on the claim.  38 U.S.C.A. § 
5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007).  
Service medical records show that the veteran complained of 
pain in the back of his neck in February 1988 and of back 
pain associated with a viral syndrome in December 1989.  On 
the Report of Medical History at service separation, the 
veteran indicated that he had recurrent back pain.  He 
specified that he had back pain (to include low back pain) 
when he did sit ups or picked something up.  Post-service 
records include a May 1993 Sociedad Radiologica de Bayamon CT 
Scan Center report of the lumbar spine noting findings 
suggestive of and consistent with early, mild postero-central 
herniated nucleus pulposus at L4-5 and L5-S1.  More recently, 
an October 2003 lumbar spine MRI from San Patricio MRI & CT 
Center revealed no focal soft disk herniation, and a 
posterior L4-L5 disk bulge and mild degenerative disk disease 
in mild foraminal stenosis.  Also, a December 2004 record 
from Dr. Clavell noted prolonged F wave bilaterally (L5 
radiculopathy) and proximal nerve compromise radiculopathy, 
central lumbar 4 and lumbar 5 (bilaterally).  As to the 
etiology of the veteran's disability, a May 1993 note from a 
physician at Clinical Neurology noted that the veteran's back 
disability was service connected.  Also as noted above, in a 
January 2006 letter, Dr. Clavell opined that the veteran's 
back disability is a direct consequence of the nature of his 
service duties.  On remand, an examination to determine the 
etiology of the veteran's current back disability must be 
provided.       

On his Form VA Form 9 as to the issue of service connection 
for bilateral carpal tunnel syndrome received in June 2005, 
the veteran requested a Travel Board hearing.  A hearing on 
appeal will be granted to an appellant who requests a hearing 
and is willing to appear in person.  38 C.F.R. § 3.103(c) 
(2007).  Although the veteran was scheduled for an RO hearing 
in October 2005, which he cancelled, to date he has not been 
scheduled for a Travel Board hearing.  As such, he must be 
provided an opportunity to present testimony at a Travel 
Board hearing at the RO before the Board may proceed with 
appellate review.

Accordingly, the case is REMANDED for the following actions:

1.	Send the veteran a complete VCAA 
letter pertaining to his service 
connection claim, including an 
explanation as to the information or 
evidence needed to establish a 
disability rating and effective date 
for his claim.

2.	Schedule the veteran for an 
appropriate VA examination to 
ascertain the nature and etiology of 
any current spine disability, 
including specifically, an assessment 
as to whether any current spine 
disability is etiologically related to 
the in-service notations cited herein.  
The claims file must be made available 
to and be reviewed by the examiner in 
conjunction with the examination.  The 
examination report must indicate that 
the claims file was reviewed in 
conjunction with the examination.

The examiner should provide an opinion 
as to whether there is a 50 percent 
probability or greater that any 
current spine disability is causally 
or etiologically related to the 
veteran's period of active service, 
including the in-service notations 
cited herein.  The examiner should 
specifically address the May 1993 note 
from Clinical Neurology and Dr. 
Clavell's January 2006 opinion cited 
above, as well as the veteran's report 
of a continuity of symptoms since 
service.  The examiner should provide 
the rationale for the opinion 
provided.  

3.	Then, after ensuring any other 
necessary development has been 
completed, readjudicate the claim for 
service connection for a back 
disability.  If further action remains 
adverse to the veteran, provide the 
veteran and his representative with a 
supplemental statement of the case and 
allow the appellant an appropriate 
opportunity to respond thereto.  
Thereafter, the case should be 
returned to the Board.

4.	Schedule the veteran for a hearing as 
to the issue of service connection for 
bilateral carpal tunnel syndrome 
before a traveling Veterans Law Judge 
at the RO.  All correspondence and any 
hearing transcripts regarding this 
hearing should be associated with the 
claims folder.

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. 2006).



______________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs