Citation Nr: 0811818	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  04-43 719	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen the claim of entitlement to service connection for a 
lumbar spine disorder.

2.  Entitlement to service connection for a hip disorder.

3.  Entitlement to service connection for a skin disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

H. E. Costas, Counsel


INTRODUCTION

The veteran served on active duty from July 1966 to June 
1970.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from April 2004 and April 2005 rating 
decisions of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Seattle, Washington.  In April 2004, the RO 
denied entitlement to service connection for a hip disorder.  
In April 2005, the RO held that new and material evidence had 
not been submitted to reopen the claim of entitlement to 
service connection for a lumbosacral strain.

In February 2008, the veteran presented testimony before the 
Board at the RO.

The Board notes that the April 2005 rating decision held that 
new and material evidence had not been submitted to reopen 
the claim of entitlement to service connection for a lumbar 
spine disorder.  By means of a February 2008 statement of the 
case, the RO held that new and material had been presented; 
however, service connection for a lumbar spine disorder was 
not warranted.  Before the Board may consider the merits of a 
previously denied claim, it must conduct an independent 
review of the evidence to determine whether new and material 
evidence has been submitted sufficient to reopen a prior 
final decision. "[T]he Board does not have jurisdiction to 
consider a claim which [has been] previously adjudicated 
unless new and material evidence is present, and before the 
Board may reopen such a claim, it must so find."  Barnett v. 
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  Furthermore, if 
the Board finds that new and material evidence has not been 
submitted, it is unlawful for the Board to reopen the claim.  
See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).  
Accordingly, the matter appropriately before the Board is 
whether new and material evidence has been presented to 
reopen the previously denied claim for service connection for 
a lumbar spine disorder.

The issues of entitlement to service connection for a lumbar 
spine disorder and a hip disorder 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.  An unappealed October 2003 rating decision held that new 
and material evidence had not been submitted to reopen the 
claim of entitlement to service connection for a lumbar spine 
disorder.

2.  Evidence received since the last final October 2003 
rating decision includes evidence not of record at the time 
of that decision that tends to raise a reasonable possibility 
of substantiating the claim.

3.  At his February 2008 hearing, the veteran stated that he 
wished to withdraw his claim of entitlement to service 
connection for a skin disorder.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the 
claim of service connection for a lumbar spine disorder.  38 
U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 
3.156(a) (2007).

2.  The criteria for withdrawal of a Substantive Appeal by 
the appellant have been met with respect to the claim 
entitlement to service connection for a skin disorder.  38 
U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 
20.202, 20.204 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS


The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).

Inasmuch as the determination below constitutes a full grant 
of that portion of the claim that is being addressed, there 
is no reason to belabor the impact of the VCAA on this 
matter.  Notably, the duty to assist by arranging for a VA 
examination or obtaining a medical opinion does not attach 
until a previously denied claim is reopened.  38 C.F.R. § 
3.159 (c)(4)(iii).

Analysis

I. New and Material

Generally, when a claim is disallowed, it may not be reopened 
and allowed, and a claim based on the same factual basis may 
not be considered.  38 U.S.C.A. § 7105.  A claim on which 
there is a final decision, however, may be reopened if new 
and material evidence is submitted.  38 U.S.C.A. § 5108. 

"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.  38 C.F.R. § 
3.156(a).  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.  When determining whether the 
claim should be reopened, the credibility of the newly 
submitted evidence is to be presumed.  Justus v. Principi, 3 
Vet. App. 510 (1992).

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  
Service connection may be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disability was 
incurred in service.  38 C.F.R. § 3.303(d).

The veteran's initial claim of entitlement to service 
connection for a lumbar spine disorder was received in 
January 1988.  He alleged that during his period of service 
he was involved in a motor vehicle accident, which resulted 
in a chronic back disorder.  In June 1989, the RO held that 
service connection was not warranted for lumbosacral strain.  
The RO reasoned that the veteran's in-service back complaints 
were acute and had resolved. The veteran did not appeal the 
rating decision and it became final.

The veteran subsequently attempted to reopen his claim; 
however, in November 1991, the RO upheld the prior denial of 
entitlement to service connection for a back disorder.  In 
support of his claim the veteran submitted a September 1991 
statement from private treatment provider D.R. indicating 
that he had received chiropractic treatment for low back 
problems in 1971 and 1973.  The treatment records, however, 
had since been destroyed.  The veteran presented a timely 
notice of disagreement with November 1991.

In February 1992, the veteran presented testimony before a 
Decision Review Officer at the RO.  He testified that during 
service he was involved in a motor vehicle accident and the 
next morning he was unable to get out of bed due to the pain 
in his low back.  He was subsequently hospitalized for an 
acute low back strain.  Following his hospitalization, the 
veteran submitted that he continued to experienced problems 
with his low back; however, he did not seek any additional 
medical attention.  Post-service, he had received 
chiropractic treatment in 1971.  The veteran testified that 
since his discharge from service, his low back pain has 
gotten progressively worse and radiated into his legs.

The matter was certified and in December 1994 the Board held 
that new and material evidence had not been presented to 
reopen the veteran's claim of entitlement to service 
connection for a lumbosacral strain.  

In February 2003, the veteran attempted to reopen his claim 
of entitlement to service connection for a back disorder.  In 
October 2003, the RO held that new and material evidence had 
not been presented to reopen the claim of entitlement to 
service connection for a lumbosacral strain.  At that time, 
the medical evidence of record included VA treatment records 
and private treatment records from Memorial Hospital.  The 
veteran did not appeal the rating decision and it became 
final.

The current claim on appeal was received in April 2004.  In 
support of his claim, the veteran submitted lay statements 
from friends and family members indicating that he had 
experienced chronic back problems since the motor vehicle 
accident in service.  Additional medical evidence included VA 
treatment records and private treatment records from J.L., 
dated from 1989 to 1992.  In April 2005, the RO held that new 
and material evidence had not been presented to reopen the 
claim of entitlement to service connection for a lumbosacral 
strain because there was no evidence of a nexus to service.

In support of his claim, the veteran subsequently submitted 
two medical nexus opinions dated in September 2006 and 
October 2006.   In September 2006, private treatment provider 
R.M. opined that the veteran's current discogenic sclerosis 
of L5-S1, lumbar protrusion L3-5, hemangioma at T3, and 
Schmorl's nodes of the thoracolumbar spine, are related his 
in-service motor vehicle accident.  The October 2006 private 
nexus opinion indicated that recent imaging revealed a small 
right paracentral disc bulge at L3-4, which contacted the 
fecal sac; diffuse annular bulging at L4-5; diffuse bulging 
at L5-1; and a far right lateral protrusion, which contacted 
the exited L5 root.  There was also a suggestion of an 
annular tear at L4-5 and L5-S1.  Physical examination 
demonstrated decreased range of motion in the hips.  Upon 
review of the record, the examiner concluded that it was 
possible that the veteran sustained the aforementioned 
injuries during his period of service.  

In light of the aforementioned medical evidence of a nexus 
between the veteran's current lumbar spine disorder and his 
period of military service, the Board finds that this 
evidence is neither cumulative nor redundant of the evidence 
previously of record.  Moreover, the new evidence raises a 
reasonable possibility of substantiating the veteran's claim.  
The Board notes that, for the purpose of establishing whether 
new and material evidence has been submitted, the credibility 
of the evidence, although not its weight, is to be presumed.  
Justus v. Principi, 3 Vet. App. 510, 513 (1992).  
Accordingly, new and material evidence has been presented and 
reopening of the claim is in order.

II.  Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal 
which fails to allege specific error of fact or law in the 
determination being appealed.  A Substantive Appeal may be 
withdrawn in writing at any time before the Board promulgates 
a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by 
the appellant or by his or her authorized representative.  38 
C.F.R. § 20.204.  Appeals must be withdrawn in writing except 
for appeals withdrawn on the record at a hearing.  Id.  At 
the February 2008 hearing, the veteran withdrew his appeal 
for entitlement to service connection for a skin disorder.  
Accordingly, there remain no allegations of errors of fact or 
law for appellate consideration with respect to this claim, 
and the Board does not have jurisdiction to review the appeal 
for this claim.


ORDER

The appeal to reopen a claim of service connection for a 
lumbar spine disorder is granted.

The appeal regarding the matter of entitlement to service 
connection for a skin disorder is dismissed.



REMAND

The veteran is seeking service connection for a lumbar spine 
disorder and a hip disorder.  The Board regrets any further 
delay in this case; however, additional evidentiary 
development is necessary.  

The veteran has testified that he has received treatment for 
his lumbar spine and hip disorders from the VAMCs in Seattle, 
Walla Walla, and Yakima.  Records generated by VA facilities 
that may have an impact on the adjudication of a claim are 
considered constructively in the possession of VA 
adjudicators during the consideration of a claim, regardless 
of whether those records are physically on file.  See Dunn v. 
West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 
Vet. App. 611, 613 (1992).  The veteran has also testified 
that he has received post-service treatment from Drs. 
Erickson and Gray at ALWA Health Clinic.  Therefore, the RO 
should obtain and associate with the record all outstanding 
pertinent medical records.  

Under the VCAA, the VA has a duty to secure an examination or 
opinion if the evidence of record contains competent evidence 
that the claimant has a current disability; and indicates 
that the disability may be associated with service, but does 
not contain sufficient medical evidence to make a decision on 
the claim.  38 U.S.C.A. § 5103A(d).  Service medical records 
reveal treatment for lumbar spine complaints in October 1967 
and March 1968.   Post-service treatment records demonstrate 
complaints and treatment for a chronic lumbar spine disorder, 
which radiates into the legs.  The veteran has also alleged 
that his current right hip disorder is secondary to his 
lumbar spine disorder.  The Board finds that an examination 
would be helpful in the adjudication of the claims.

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain copies of all of 
the veteran's treatment records from the 
VAMC in Seattle, since October 2002; the 
VAMC in Walla Walla, since February 2003; 
and the VAMC in Yakima, since December 
2006.  The RO should also obtain private 
treatment records from the ALWA Health 
Clinic.  If such efforts prove 
unsuccessful, documentation to that effect 
should be added to the claims file.

2.  The veteran should be afforded a VA 
examination to determine the etiology of 
his current lumbar spine and hip 
disorders.  All indicated tests should be 
accomplished.  The claims folder must be 
made available to the examiner prior to 
the examination.  The VA examiner should 
review the claims folder and provide an 
opinion as to whether it is at least as 
likely as not that the veteran's current 
lumbar spine and hip disorders are 
causally related to his period of active 
service or any incident therein, including 
the March 1968 motor vehicle accident.  
The report of examination should include a 
complete rationale for all opinions 
rendered.

3.  Then, the RO should readjudicate the 
issues on appeal in light of all pertinent 
evidence and legal authority.  If the 
benefit sought on appeal remains denied, 
the RO should issue to the veteran and his 
representative a Supplemental Statement of 
the Case and afford them the appropriate 
opportunity for response thereto.  The 
case should then be returned to the Board, 
if in order, for further review.

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).



______________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs