Citation Nr: 0811979 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-05 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from November 1976 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's request to reopen a previously denied claim of entitlement to service connection for a back condition, on the basis that he failed submit new and material evidence. The veteran perfected a timely appeal of this determination to the Board. In May 2006, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. This matter was before the Board in May 2006 and was then remanded. The issue of entitlement to service connection for a back condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT New medical evidence relates to an unestablished fact necessary to substantiate the veteran's claim of entitlement to service connection for a back condition. CONCLUSION OF LAW New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a back condition. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted, and has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. The Board has considered this legislation, but finds that, given the favorable action taken below, no discussion of the VCAA at this point is required. The veteran argues that he has submitted new and material evidence to reopen a previously denied claim of service connection for a back condition. The most recent final denial of the veteran's claim was an October 1999 Statement of the Case of the RO. The bases of the previous denials of the veteran's service connection claim have been that, while the record reflects a current back condition and in-service treatment for the back, the evidence does not show that a current back condition was incurred or aggravated in service. Generally, a final decision issued by the RO may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which states, in part, that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Id. "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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). Furthermore, in determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In the instant case, the veteran submitted evidence in the form of a letter from his treating VA psychiatrist, Dr. N., dated in January 2007. The letter indicates that, after reviewing the veteran's records, it was Dr. N.'s opinion that the onset of the veteran's chronic low back pain dated back to a March 1978 in-service fall from steps in barracks. This new medical evidence relates to the nexus between an in- service injury and a current back condition, which is an unestablished fact necessary to substantiate the veteran's service connection claim. Thus, the Board finds that the veteran has submitted new and material evidence to reopen a previously denied service connection claim for a back condition. ORDER New and material evidence having been submitted, the veteran's claim of entitlement to service connection for a back condition is reopened; to this extent only, the veteran's appeal is granted. REMAND For the following reasons, the claim of entitlement to service connection for a back condition must be remanded. Service medical records indicate numerous instances of treatment for chronic low back pain. A November 1978 service medical board opinion indicates that the veteran had chronic recurrent low backache, secondary to an injury sustained prior to enlistment, and that the veteran was unfit for further military service by reason of a physical disability that was neither incurred in, nor aggravated by, a period of active military service. The opinion notes, in its history of the veteran's back condition, that the veteran had sustained an injury to his low back while employed at a hospital in February 1976, prior to service, when helping to lift a patient, when he noticed increasing pain in his back and the next day was unable to work. A February 1976 hospital record indicates that the veteran complained of sharp pain in the chest and similar pain radiating to the right scapula. The thoracic spine, at 1 and 2, was noted to be tender, and the veteran was diagnosed as having superficial thoracic pain, probably muscular. The veteran has argued that, although he injured his upper back in February 1976, which was prior to his period of service, he did not incur a low back injury until his period of service, and currently has a low back condition. He argues that, therefore, the back condition for which he was filing a service connection claim was incorrectly deemed to be an injury that pre-existed his period of service. Alternatively, the veteran has argued that, if did have back condition that preceded his period of service, such condition was aggravated by service. There is no competent VA medical opinion of record regarding the etiology of any chronic low back pain, or any other back condition, including whether any such condition was incurred or aggravated in service, and which has involved an examination of the veteran and a review of the claims folder. In this regard, the January 2007 letter from Dr. N. expresses the opinion that the onset of the veteran's chronic low back pain dated back to a March 1978 in-service fall from steps in barracks. While this letter is medical evidence indicating a link between the veteran's back condition and his service, the asserted opinion is not supported by an adequate medical explanation of how any current back condition is related to service, or whether the veteran's February 1976 injury is related to his current back condition. Also, Dr. N. is a psychiatrist, and the instant medical issue is orthopedic in nature. Furthermore, while Dr. N. cited medical records in support of the opinion given, there is no indication that Dr. N. had the benefit of a review of the entire claims folder. Therefore, a VA examination is necessary to determine the nature and etiology of any back condition. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the veteran for an examination by a VA examiner with the appropriate expertise in order to determine the nature and etiology of any current back disorder. The claims folder and a copy of this Remand must be provided to the examiner for review. The examiner should note in the examination report that he or she has reviewed the claims folder. Based on examination findings and a review of the claims folder, the examiner should specifically express an opinion as to (1) the nature of any current back disorder, and (2) whether it is at least as likely as not (whether there is a 50 percent chance or more) that any such disorder was incurred or permanently aggravated during the veteran's period of service, or is otherwise etiologically related to the veteran's period of service in any way. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims folder. 2. After undertaking any additional development deemed appropriate, the RO should review the entire evidentiary record and readjudicate the issue on appeal. If any remaining benefit sought is not granted to the veteran's satisfaction, the RO should issue an appropriate supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs