Citation Nr: 0811375 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-39 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for lumbosacral strain. 2. Entitlement to a compensable disability evaluation for the veteran's bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from September 1988 to May 1995. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Togus, Maine, Regional Office which, in pertinent part, determined that new and material evidence had not been received to reopen the veteran's claim of entitlement to service connection for lumbosacral strain and denied an increased disability evaluation for the veteran's service- connected bilateral pes planus. In December 2004, the Baltimore, Maryland, Regional Office (RO) denied service connection for lumbosacral strain secondary to the veteran's bilateral pes planus. In October 2007, the veteran was afforded a hearing before the undersigned Acting Veterans Law Judge. As to the issue of whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for lumbosacral strain, the Board is required to consider the question of whether new and material evidence has been received to reopen the veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Court has clarified that while there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute a single claim. Roebuck v. Nicholson, 20 Vet.App. 307, 313 (2006). The issue of the veteran's entitlement to an increased disability evaluation for her bilateral pes planus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the veteran if further action is required on her part. At the October 2007 hearing before the undersigned Acting Veterans Law Judge, the veteran advanced claims of entitlement to service connection for a fungal disorder of the feet, an acquired psychiatric disorder, and a gastrointestinal disorder. She further claimed an increased evaluation for her service-connected bronchial asthma. It appears that the RO has not had an opportunity to act upon the claims. Absent an adjudication, a notice of disagreement (NOD), a statement of the case (SOC), and a substantive appeal, the Board does not have jurisdiction over the issues. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993); Black v. Brown, 10 Vet. App. 279, 284 (1997); Shockley v. West, 11 Vet. App. 208 (1998). Therefore, these issues are referred to the RO for action as may be appropriate. Black v. Brown, 10 Vet. App. 279 (1997). FINDINGS OF FACT 1. In September 1995, the RO denied service connection for lumbosacral strain to include low back pain. The veteran was informed in writing of the adverse decision and her appellate rights in September 1995. The veteran did not submit a NOD with the decision. 2. The evidence received since the September 1995 RO decision is new and material, and raises a reasonable possibility of substantiating the veteran's claim for service connection for lumbosacral strain. CONCLUSION OF LAW New and material evidence has been submitted since the RO's September 1995 decision, and the veteran's claim for service connection for lumbosacral strain to include low back pain is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In reviewing the veteran's application to reopen her claim of entitlement to service connection for lumbosacral strain to include low back pain, the Board observes that the RO issued VCAA notices to the veteran in December 2003, August 2004, April 2005, and March 2006, which informed her of the evidence needed to support both her application to reopen her claim of entitlement to service connection for lumbosacral strain to include low back pain and the assignment of an evaluation and effective date for an initial award of service connection; what actions she needed to undertake; and how the VA would assist her in developing her application. The VA has secured or attempted to secure all relevant documentation. The veteran was afforded a VA examination for compensation purposes. The examination report is of record. The veteran was afforded a hearing before the undersigned Acting Veterans Law Judge. The hearing transcript is of record. There remains no issue as to the substantial completeness of the veteran's application. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Notwithstanding any deficiency in the notices given the veteran, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision as to whether new and material evidence has been received to reopen her claim of entitlement to service connection for lumbosacral strain to include low back pain given the favorable outcome below. Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 2008) (No. 07A588). II. Application to Reopen Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2007). A. Prior RO Decision In September 1995, the RO denied service connection for lumbosacral strain to include low back pain as the claimed disability was not shown during active service. The veteran was informed in writing of the adverse decision and her appellate rights in September 1995. The veteran did not submit a NOD with the adverse decision. The evidence considered by the RO in formulating its decision may be briefly summarized. Army treatment records dated in August 1991 and December 1991 state that the veteran complained of back pain which radiated into her left buttock. Impressions of mechanical low back pain and low back pain were advanced. The report of a July 1995 VA examination for compensation purposes states that the veteran was diagnosed with "intermittent lumbosacral strain of a very mild nature" and "recurrent low back pain, lumbosacral strain." B. New and Material Evidence Title 38 of the Code of Federal Regulations (2007) states, in pertinent part, that: 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) (2007). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence submitted since the September 1995 rating decision denying service connection for lumbosacral strain to include low back pain consists of VA clinical and examination documentation; the transcript of the October 2007 hearing before the undersigned Acting Veterans Law Judge; and written statements from the veteran. At an October 2003 VA examination for compensation purposes, the veteran complained of intermittent low back pain. She reported that she had fallen down a flight of stairs during active service and subsequently initially experienced low back pain. The veteran's claims files were not provided to the examiners for review. The veteran was diagnosed with lumbar spine degenerative joint disease; "low back pain due to muscle sprain and [degenerative joint disease] and radicular dysfunction (subjective and sensory L5-S1);" a herniated disc; and spinal stenosis. The neurologic examiner commented that "findings felt to be due to trauma in military." In reviewing the additional documentation submitted into the record since the September 1995 RO decision, the Board observes that the October 2003 VA examination report constitutes new and material evidence in that it is of such significance as to raise a reasonable possibility of substantiating the veteran's claim. As new and material evidence has been received, the veteran's claim of entitlement to service connection for lumbosacral strain to include low back pain is reopened. ORDER The veteran's application to reopen her claim of entitlement to service connection for lumbosacral strain to include low back pain is granted. REMAND In light of its reopening above, the veteran's claim of entitlement to service connection for a chronic low back disorder is to be determined following a de novo review of the entire record. Army treatment records dated in August 1991 and December 1991 state that the veteran complained of back pain which radiated into her left buttock. She denied having sustained any back or spinal trauma. Impressions of mechanical low back pain and low back pain were advanced. The report of the October 2003 VA examination for compensation purposes conveys that the veteran's claims files were not provided to the examiners for review. On orthopedic evaluation, the veteran was diagnosed with lumbar spine degenerative joint disease. The examiner commented that "service connection can only be established after a proper review of the c-file ... this can be done at the RO." On contemporaneous neurological evaluation, the veteran was diagnosed with "low back pain due to muscle sprain and [degenerative joint disease] and radicular dysfunction (subjective and sensory L5-S1);" a herniated disc; and spinal stenosis. The neurologic examiner commented that "findings felt to be due to trauma in military." The Court has held that examinations for compensation and pension purposes conducted without contemporaneous review of the veteran's claims file are deficient for rating purposes. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). At the October 2007 hearing before the undersigned Acting Veterans Law Judge, the veteran testified that her bilateral pes planus had increased in severity and significantly interfered with her vocational pursuits. She clarified that she could no longer work on a full time basis due to her bilateral pes planus. The veteran stated further that she received ongoing treatment for her feet. The VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). In reviewing the claims files, the Board observes that the veteran was last afforded a VA examination for compensation purposes which addressed her bilateral pes planus in October 2003. The VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, the Board finds that an additional evaluation would be helpful in resolving the issues raised by the instant appeal. Accordingly, this case is REMANDED for the following action: 1. Review the claims files and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007); and the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Then contact the veteran and request that she provide information as to all post-service treatment of her chronic lumbosacral spine disabilities and treatment of her service-connected pes planus after October 2002 including the names and addresses of all health care providers. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran, not already of record, for incorporation into the record. 3. Then request that copies of all VA clinical documentation pertaining to the veteran's treatment after March 2005, not already of record, be forwarded for incorporation into the record. 4. Then schedule the veteran for a VA examination for compensation purposes in order to determine the nature, etiology, and severity of her chronic lumbosacral spine disabilities and service-connected bilateral pes planus. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner or examiners should advance an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more); or less likely than not (i.e., probability less than 50 percent) that any identified chronic lumbosacral spine disorder had its onset during active service; otherwise originated during active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to the veteran's service-connected disabilities. The examiner or examiners should identify the limitation of activity imposed by the veteran's bilateral pes planus and any associated pain with a full description of the effect of the disabilities upon her ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. Determinations on whether the veteran exhibits pain with use of the feet should be noted and described. If feasible, the determinations concerning pain, weakness and fatigability should be portrayed in terms of the degree of additional range of motion loss or ankylosis. If such a determination is not feasible, this should be stated for the record and the reasons provided. The examiner or examiners should express an opinion as to the impact of the veteran's service-connected bilateral pes planus upon her vocational pursuits. Send the claims folders to the examiner or examiners for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 5. Then adjudicate the issue of service connection for a chronic low back disorder to include lumbosacral strain and lumbosacral spine degenerative disc disease, degenerative joint disease, and stenosis on a de novo basis and readjudicate the issue of an increased evaluation for the veteran's bilateral pes planus. If the benefits sought on appeal remain denied, the veteran should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The veteran should be given the opportunity to respond to the SSOC. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs