Citation Nr: 0812787 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 07-17 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for mechanical low back pain. 2. Entitlement to service connection for mechanical low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The appellant had service in the Tennessee Army National Guard from April 1986 to February 1992. He had additional service in the U. S. Army Reserve from a date in 1992 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appellant testified before the undersigned Veterans Law Judge at a video conference hearing in December 2007. The appellant was given the opportunity to submit additional evidence in support of his claim. The evidence was received at the Board in January 2008. The appellant included a waiver of consideration by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2007). The Board will consider the evidence in its appellate review. The issue of entitlement to service connection for mechanical low back pain 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. FINDINGS OF FACT 1. The appellant was denied entitlement to service connection for mechanical low back pain by way of a rating decision dated in January 2004. He failed to perfect a timely appeal. 2. The evidence received since the January 2004 rating decision is new, and it raises a reasonable possibility of substantiating the underlying claim for service connection for mechanical low back pain. CONCLUSION OF LAW New and material evidence sufficient to reopen a previously denied claim of service connection for mechanical low back pain loss has been received. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served in the Tennessee Army National Guard (TARNG) from April 1986 to February 1992. He also served in the U.S. Army Reserve from a time in 1992 to July 1996. The appellant had an initial period of active duty for training (IADT) from August 4, 1986, to October 2, 1986. He had a period of active duty for training (ACDUTRA) from August 13, 1987 to November 3, 1987. The appellant has stated that he performed no drills or training with the U. S. Army Reserve. The appellant claims that he injured his lower back while at an inactive duty for training (INACDUTRA) drill in May 1990. He further claims that his current back disorder is directly attributable to his injury in 1990. He does not allege any other injury at any other time during his TARNG or Reserve service. In general, the law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 2002) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2007); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2007). The term INACDUTRA is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2007). Thus, with respect to the appellant's National Guard and Army Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions--such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). The appellant was originally denied service connection for mechanical low back pain by way of a rating decision dated in January 2004. He did not perfect a timely appeal and that decision became final. See 38 C.F.R. §§ 20.300, 20.302, 20.1103 (2004). As a result, service connection for mechanical low back pain may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the January 2004 rating decision consisted of the appellant's National Guard service medical records (SMRs), National Guard personnel records, copy of TARNG Orders 69-58, dated April 10, 1990, letter of discharge from the U. S. Army Reserve, dated in July 1996, treatment records from W. C. Ramer, M.D., for the period from October 1985 to July 2000, treatment records from J. Taylor, M.D., dated in March and June 2000, treatment record from T. Hayden, M.D., dated in February 2003, records from the Social Security Administration (SSA), received in June 2003, treatment records from Pathway of Tennessee for the period from October 1998 to June 2003, records from N. Winston, M.D., for the period from October 1998 to June 2003, statement from K. R., dated in September 2003, VA examination report, dated in October 2003, and statements from the appellant. The TARNG SMRs are limited and do not reflect any evidence of treatment or complaints of a back injury. The TARNG personnel records do not contain any line of duty determinations regarding a back injury in May 1990. In fact, they show that the appellant was discharged from enlisted status and given a commission as an officer in June 1990. An officer evaluation report, for the period from June 23, 1991, to January 31, 1992, made no mention of the appellant being limited in the performance of his duties by any physical impairment. The TARNG Orders 69-58 indicate that the appellant, along with a number of other individuals, was given active duty for special work (ADSW) non-pay orders, with his consent, for the weekend of May 5-6, 1990. The records from Dr. Ramer show that the appellant was seen on May 9, 1990, for complaints of back pain. The appellant related he had been at a military drill on the prior weekend and had done some exercises. He did not seem to hurt himself at that time. He later helped to move a piano but did not feel any pain at that time. A day later he began to have back pain that had become progressively worse. X-rays of the lumbar spine showed evidence of muscle spasm of the lower back with complete loss of lordosis. Dr. Ramer provided an assessment of bilateral lumbar muscle strain. The appellant was seen with further complaints of back pain in May 1990. The next entry was in July 2000. The appellant complained of back pain. The history was that he injured his back in the military "many years ago." The appellant related that he had tried to hold a job at two places but was unable to because of his back. The assessment was chronic back problems. The records from Dr. Taylor show treatment for hypertension and back pain. The appellant gave a history of hurting his back in service while doing sit-ups in 1990. He had recently hurt his back while moving a large sack of fish food in his truck. The June 2000 assessment was back pain. Dr. Hayden saw the appellant in February 2003. The appellant was having severe back pain that had its onset with him getting out of bed 5 days earlier. No history of a prior injury in 1990 was referenced. The assessment was left lumbosacral strain with left leg radiculopathy. The SSA records did not contain any references to a back injury in service or current problems with a back disorder. The appellant was awarded SSA disability benefits, on the basis of a psychiatric disorder, in 2001. The disability was effective from September 1999. The appellant's employment history from 1982 to 1999 was included in the records. He did not report any problems with his back as a reason for changing jobs or losing jobs. He stated only that his psychiatric symptoms caused him to change or lose jobs. The Pathway records, and those from Dr. Winston as duplicates of the Pathway records, all related to treatment for psychiatric symptoms. The appellant's back was not referenced as a problem, even by way of past medical history. The statement from K.R. was that he had worked with the appellant for 14 years. He said the appellant came to work on May 7, 1990, and approached him with concerns about his lower back pain. He said the appellant told him he had been at a National Guard drill on the prior weekend and hurt his back. The VA examiner noted he had reviewed the claims folder in his report of October 2003. The VA examiner said there was evidence of facet arthritis on x-ray examination. He also said that the appellant's current symptoms were more like mechanical back pain. The examiner said it was difficult to say the appellant injured his back in service. He added that it was unlikely that the injury caused the current symptoms. The examiner also said that it was as likely as not that the appellant injured his back in service but he did not know that this was necessarily what was causing the current problem. The examiner did not address the arthritis found on the x-ray of the lumbar spine. The RO denied the appellant's claim in January 2004. The basis for the denial was that the evidence did not show that the appellant's current back disorder occurred during service. The decision noted the treatment records from May 1990. The decision also noted that the VA examiner found that it was not likely that any current back disorder was related to the claimed injury of May 1990. The decision did not concede that a back injury was incurred during a period of service. The appellant sought to reopen his claim in June 2005. Evidence received since the January 2004 decision includes statements from Dr. Ramer, dated in May 1990 and June 1990, statements from Dr. Hayden, dated in February 2004 and January 2005, a letter from R. J. Barnett, M.D., dated in May 2005, transcript of hearing from December 10, 2007, submissions by the appellant and statements from the appellant. The evidence from the several physicians is new to the record. Dr. Ramer wrote two letters to say the appellant was under his care since May 9, 1990, for a severe strain of the lower back. He made recommendations on military activities the appellant should avoid in the near term. Dr. Hayden said that the appellant insisted that he injured his back in service in May 1990 and that he had continued to have pain since that time. Dr. Hayden did not express any opinion as to whether any current disorder was related to the alleged injury in service. Dr. Barnett related a history of injury from the appellant. This included being injured while doing sit-ups at drill in May 1990. He said the appellant complained of intermittent low back pain, down into the left knee since that time. Dr. Barnett reviewed the medical entries from Dr. Ramer in May 1990 as well as the records from Dr. Taylor and Dr. Hayden. He said that x-rays of the lumbar spine showed some arthritic changes about the sacroiliac and lumbosacral joints with some loss of lumbar curvature. Dr. Barnett went on to describe the extent of disability for the appellant as a percentage. However, he made no comment relating any current diagnosis to the appellant's military service, especially the claimed injury from May 1990. The appellant made multiple statements, and testified, that he injured his back at drill on the weekend of May 5-6, 1990. He said he injured his back while performing physical training (PT). He tried to avoid going to sick call for his continued problems because he was in an officer candidate program, he was near the end of training, and did not want lose his chance to become a commissioned officer. He said he was allowed to avoid certain aspects of his training, such as carrying an M-60 machinegun, or doing a long run, because of his superiors' awareness of his back pain. The appellant submitted additional evidence after his hearing in December 2007. These included duplicate copies of SMRs, as well as an officer evaluation report. The evidence was all duplicative of evidence previously of record and considered at the time of the decision in January 2004. The Board finds that new and material evidence has been received to reopen the appellant's claim. The letters from Dr. Ramer provide evidence of the impact of the appellant's claimed injury from May 1990. Further, they show that the appellant submitted information to his military superiors of his back strain while completing his training program. The letters also show that it was recommended that the appellant be excused from certain physical aspects of his training. The appellant provided testimony and statements to the effect of how he was allowed to complete his training without performing all of the required physical training and be commissioned in June 1990. This evidence, when taken with the TARNG orders, the statement of K.R. and the treatment records from Dr. Ramer, allows for a reasonable conclusion that the appellant did suffer a back injury as he has described it while under INACDUTRA orders on the weekend of May 5-6, 1990. See 38 U.S.C.A. § 1154(a) (West 2002). Thus there is evidence of an injury in service where this was of question before. This relates to an unestablished fact from the previous claim. Dr. Barnett provided current evidence of arthritis of the lumbar spine. This was also identified at the time of the VA examination in October 2003, however, the VA examiner failed to address whether the arthritis present on x-ray at that time was related to the injury in service. As the question of the etiology of the appellant's arthritis has not been addressed, this also raises a reasonable possibility of substantiating the appellant's claim for service connection when it is considered with the fact of an in-service injury. The appellant's claim for service connection for mechanical low back pain is reopened. ORDER New and material evidence has been received sufficient to reopen a claim of service connection for mechanical low back pain, to this extent, the appeal is granted. REMAND The appellant has submitted sufficient evidence to show that he did have a back injury while performing INACDUTRA on the weekend of May 5-6, 1990. The contemporaneous treatment records show muscle spasms and residuals of severe strain through May 1990. Dr. Ramer wrote letters, in May and June 1990 attesting to the residuals of the strain. The next medical evidence of record regarding the appellant's complaints of back pain are dated in July 2000. He has additional records of treatment in 2003. Further, the VA examination of October 2003 and the letter report from Dr. Barnett, in 2005, provide evidence of arthritis involving the lumbar spine. The appellant is competent to attest to his continuity of symptomatology since his injury in May 1990. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the appellant, is not competent to relate any current diagnosis of a back disorder to his injury in 1990. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). This can only be done by a qualified medical professional. The appellant must be afforded a VA examination to obtain an opinion that addresses the possibly etiology of any current back disorder. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his back disorder since May 1990. The RO should attempt to obtain copies of pertinent treatment records identified by the veteran that have not been previously secured and associate them with the claims folder. 2. After completion of the above development, the appellant should be afforded a VA examination. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. The examiner must indicate in the examination report that such a review occurred. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. The examiner is request to identify the presence of any disorder of the lower back. The examiner is further requested to provide an opinion whether there is a 50 percent probability or greater that any current lower back disorder, to include arthritis, can be related to the appellant's injury of May 1990. The report of examination should include the complete rationale for all opinions expressed. 3. Thereafter, the RO should re- adjudicate the issue on appeal. If the benefit sought is not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs