Citation Nr: 0813024	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  99-08 016	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Rebecca N. Poulson, Associate Counsel


INTRODUCTION

The veteran served on active duty from August 1978 to 
November 1978.

This matter is before the Board of Veterans' Appeals (Board) 
from an October 1998 decision by the Department of Veterans 
Affairs (VA) Regional Office (RO) in Waco, Texas, which 
declined to reopen the veteran's claim for service connection 
for a low back disability.  The veteran timely filed a Notice 
of Disagreement (NOD) in November 1998.  The RO provided a 
Statement of the Case (SOC) in March 1999.  

In March 1999, the veteran testified before a Decision Review 
Officer (DRO).  A copy of the transcript of that hearing has 
been made part of the claims file.

A July 2000 Board remand noted that there was no 
correspondence of record, to include a Form 9, which could be 
construed as a timely substantive appeal with respect to the 
low back claim.  However, a September 2005 Board remand 
determined that the transcript of the March 1999 DRO hearing, 
which was added to the record after the July 2000 Board 
remand, clearly established that the veteran continued to 
disagree with the RO's denial of his application to reopen a 
claim for service connection for a low back disability.  
Accordingly, the Board accepted the transcript as a timely 
substantive appeal and remanded the case for further 
development, to include providing complete VCAA notice and 
issuing an appropriate SSOC.  The RO submitted an SSOC in 
January 2008.  

In the instant case, the Board finds that the Appeals 
Management Center (AMC) has complied with the September 2005 
Remand Order, and that neither the veteran, nor his 
representative, has contended otherwise, and therefore it may 
proceed with its review of this appeal.  Stegall v. West, 11 
Vet. App. 268, 270-71 (1998).

While the RO declined to reopen the appellant's claim, the 
Board must make its own determination as to whether new and 
material evidence has been received to reopen the claim.  
That is, the Board has a jurisdictional responsibility to 
consider whether it was proper for a claim to be reopened, 
regardless of the RO's finding. Jackson v. Principi, 265 F.3d 
1366, 1369 (Fed. Cir. 2001).

The Board notes that in a May 2006 Form 21-4138, the veteran 
appeared to request that the RO reopen his claim for service 
connection for a psychiatric disorder, to include 
schizophrenia.  Furthermore, in a July 2006 Form 21-4142, the 
veteran appeared to raise an informal claim of service 
connection for diabetes.  These issues are not developed for 
appellate consideration and are referred to the RO for 
appropriate action.   

As explained below, the reopened claim for service connection 
for a low back disability is REMANDED to the RO via the 
Appeals Management Center (AMC), in Washington, DC.  VA will 
notify the appellant when further action is required.


FINDINGS OF FACT

1. The RO denied the appellant's claim for service connection 
for a low back disability in a July 1994 decision; the 
veteran filed a timely NOD but did not perfect that appeal.

2. In July 1998, the appellant filed an application to reopen 
his claim for service connection for a low back disability. 

3.  The evidence submitted since the July 1994 RO decision 
bears directly and substantially upon the specific matter 
under consideration; it is not redundant and is so 
significant by itself or in connection with evidence 
previously assembled that it must be considered in order to 
fairly decide the merits of the claim of service connection 
for a low back disability.


CONCLUSIONS OF LAW

1.  The July 1994 RO decision that denied service connection 
for a low back disability is final.  38 U.S.C.A. § 7105 (West 
2002 & Supp. 2007); 38 C.F.R. 
§§ 3.104, 20.1103 (2007).

2. Evidence received since the July 1994 RO decision denying 
a claim for service connection for a low back disability is 
new and material; the claim for service connection for a low 
back disability is reopened.  38 U.S.C.A. §§ 5108, 7104 (West 
2002); 38 C.F.R. § 3.156(a) (2001) (as effective for claims 
filed prior to August 29, 2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107 (West 2002) significantly changed the law 
prior to the pendency of this claim. VA has issued final 
regulations to implement these statutory changes.  See 38 
C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).  The VCAA 
provisions include an enhanced duty to notify a claimant as 
to the information and evidence necessary to substantiate a 
claim for VA benefits, and they redefine the obligations of 
VA with respect to the duty to assist the veteran with his 
claim.

In the instant case, the Board has rendered a decision in 
favor of the appellant, finding that new and material 
evidence has been secured to reopen his claim.  Accordingly, 
a further discussion of the VCAA duties is unnecessary at 
this time with respect to this aspect of the appellant's 
appeal.  The reopened claim is further addressed in the 
remand below. 

II. New & Material Evidence

a. Law and Regulations 

If a veteran does not file a notice of disagreement with an 
RO decision within the applicable time period, 38 U.S.C.A. § 
7105(c) provides that such a decision "shall become final and 
the claim will not thereafter be reopened or allowed. . . ."  
38 U.S.C.A. § 5108, however, provides an exception to this 
rule by requiring the Secretary to reopen a claim that has 
been finally decided and previously disallowed "[i]f new and 
material evidence is presented or secured" with respect to 
the claim. Fortuck v. Principi, 17 Vet. App. 173, 178 (2003) 
("The Secretary must reopen a previously and finally 
disallowed claim when 'new and material evidence' is 
presented or secured"); accord 38 C.F.R. § 3.156(a) ("A 
claimant may reopen a finally adjudicated claim by submitting 
new and material evidence").

The Board notes that at the time the appellant filed his July 
1998 claim to reopen, the following provisions of 38 C.F.R. § 
3.156(a), which sets forth the standard for "new and 
material" evidence, were in effect: "[n]ew and material 
evidence means evidence not previously submitted to agency 
decisionmakers which bears directly and substantially upon 
the specific matter under consideration, which is neither 
cumulative nor redundant, and which by itself or in 
connection with evidence previously assembled is so 
significant that it must be considered in order to fairly 
decide the merits of the claim."  38 C.F.R. § 3.156(a) 
(1995); see Rodriguez v. Nicholson, 19 Vet. App. 275, 289 
(2005) (recognizing that the 2001 amendment to § 3.156(a), 
which made the "new and material evidence" standard more 
stringent, applies to "any claim for benefits received by VA 
on or after August 29, 2001"), reversed on other grounds, 511 
F.3d 1147 (Fed.Cir. 2008); 66 Fed. Reg. 45620, 45620 (Aug. 
29, 2001) (stating that "The amendment to 38 C.F.R. § 
3.156(a) . . . appl[ies] to any claim to reopen a finally 
decided claim received on or after August 29, 2001").  
"Material" evidence is "'relevant to and probative to the 
issue at hand'" and must be of "'sufficient weight or 
significance that there is a reasonable possibility that the 
new evidence, when viewed in the context of all the evidence, 
both new and old, would change the outcome.'"  Fluker v. 
Brown, 5 Vet. App. 296, 298 (1993), quoting Sklar v. Brown, 5 
Vet. App. 140, 145 (1993).  In determining whether new and 
material evidence exists, the Board must presume the 
credibility of the evidence.  Id. at 298.  

The Board recognizes that 38 C.F.R. § 3.156(a) underwent a 
revision, which took effect on August 29, 2001 and which 
rendered the new and material evidence standard more 
stringent.  See Rodriguez, 19 Vet. App. at 289 (recognizing 
that the 2001 amendment to § 3.156(a), which made the "new 
and material evidence" standard more stringent, applies to 
"any claim for benefits received by VA on or after August 29, 
2001"); 66 Fed. Reg. 45620, 45620 (Aug. 29, 2001) (stating 
that "The amendment to 38 C.F.R. § 3.156(a) . . . appl[ies] 
to any claim to reopen a finally decided claim received on or 
after August 29, 2001").  Because the appellant submitted his 
claim prior to that effective date in July 1998, and because 
the amendment sets forth more stringent requirements, the 
Board need not apply it to the instant case.  

If the Board determines that the appellant has submitted new 
and material evidence, it must then "review the new evidence 
'in the context of' the old to determine whether the prior 
disposition of the claim should be altered."  Godfrey v. 
Brown, 7 Vet. App. 398, 405 (1995); accord Anderson v. Brown, 
9 Vet. App. 542, 546 (1996) (noting that, upon a finding that 
the veteran has presented new and material evidence, the 
Board "must reopen the claim and 'evaluate the merits of the 
veteran's claim in light of all the evidence, both new and 
old.'  Masors v. Derwinski, 2 Vet. App. 181, 185 (1992)").

b. Analysis

As noted above, the veteran had approximately 4 months of 
active duty from August to November 1978.  Evidence of record 
at the time of the October 1998 Board decision that denied 
service connection for a low back disability included his 
service medical records, which were negative for any 
complaints or treatment for a low back disability.  However, 
the Board notes that a report of a separation from service 
physical examination was not of record.  

Other evidence of record included private treatment records 
from Austin State Hospital, dated from 1984 to 1992, and 
medical records from the VA Medical Center in 1994.  A review 
of these medical and psychiatric records shows that the 
veteran was treated for a psychiatric disorder and a low back 
disability.

In its October 1998 decision, the RO denied service 
connection for a low back disability on the basis that there 
was no medical evidence of a chronic low back disorder 
incurred in or aggravated by active service. 
 
Since the October 1998 RO decision, no evidence has been 
received to corroborate the veteran's assertion that he 
sustained a back injury lifting artillery while on active 
duty.  His contentions are cumulative of those he made prior 
to the October 1998 decision.  However, private provider and 
VA treatment records dated from November 1998 to November 
2006 reveal that the veteran has been treated for lumbar 
spondylosis and degenerative disc disease.  Arguably with 
such diagnoses the veteran's application for compensation 
benefits should be construed as a new claim.  See Ephraim v. 
Brown, 82 F.3d 399 (Fed. Cir. 1996).  However, as the 
previously considered evidence does show a low back 
disability, the Board finds that this evidence is new and it 
is material because it bears directly and substantially upon 
the matter of service connection for a low back disability.  
See 38 C.F.R. 
§ 3.156(a) (2001) (as effective for claims filed prior to 
August 29, 2001).  Accordingly, reopening of the claim for 
service connection for a low back disability is warranted.


ORDER

As new and material evidence has been received, the 
application to reopen the claim for service connection for a 
low back disability is granted.


                                                           
REMAND

The Board finds that additional development is warranted to 
address the merits of the appellant's appeal for entitlement 
to service connection for a low back disability.  38 C.F.R. § 
19.9 (2007).  

The file does not contain the veteran's separation exam.  
While the RO made inquiry to the National Personnel Records 
Center (NPRC) to verify dates and places of treatment while 
in the service, they did not posit an inquiry to ascertain if 
there are any more service medical records available.  The 
Board notes that VA has a duty to assist the veteran in the 
obtainment of medical records held in federal custody.  
Therefore, appropriate federal agencies should be contacted 
regarding the absent service medical records.  38 C.F.R. § 
3.159(c)(2). 

In view of the foregoing, this appeal is REMANDED for the 
following action:

1.	The AMC/RO must review the record and 
ensure compliance with all notice and 
assistance requirements set forth in the 
Veterans Claims Assistance Act of 2000 
(VCAA) with respect to the claim for 
service connection for a low back 
disability.  See 38 U.S.C.A. §§ 5102, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. § 3.159 
(2007).

2.	Contact the NPRC and any other relevant 
federal records depository to determine if 
additional service medical records are 
present, to include a service separation 
examination.  If such records are 
available, obtain them and place them into 
the claims file.  If, after inquiry, it is 
apparent that the veteran's additional 
records are not in the custody of the 
federal government, annotate the record to 
reflect this. 

3.	If, and only if, the evidence received 
indicates that the veteran was treated for 
a low back disability during service, then 
schedule the veteran for a VA orthopedic 
examination to determine the nature and 
approximate onset date and/or etiology of 
his low back disabilities.  The claims 
folder, to include a copy of this REMAND 
and any additional evidence provided by the 
RO, must be made available to and reviewed 
by the examiner prior to completion of the 
examination report, and the examination 
report must reflect that the claims file 
was reviewed.  Any indicated tests should 
be performed.  

Following a review of the relevant 
evidence in the claims file and a copy of 
this remand, obtaining a history from the 
veteran, the clinical examination and any 
tests that are deemed necessary, the 
examiner is requested to answer the 
following question:

Is it at least as likely as not 
(i.e., 50 percent or greater 
probability) that any low back 
disability that is currently present 
began during service or is 
etiologically related to any 
incident of active service?

The examiner is advised that the term 
"as likely as not" does not mean within 
the realm of possibility.  Rather, it 
means that the weight of medical 
evidence both for and against a 
conclusion is so evenly divided that it 
is medically sound to find in favor of 
causation as to find against causation.  
More likely and as likely support the 
contended causal relationship; less 
likely weighs against the claim. 

The examiner is also requested to 
provide a rationale for any opinion 
expressed and is advised that if a 
conclusion cannot be reached without 
resort to speculation, he or she should 
so indicate in the examination report.  

4.	Thereafter, the RO should readjudicate the 
claim for service connection for a low back 
disability on a de novo basis.  If the 
benefit sought on appeal remains denied, 
the appellant and his representative should 
be provided a supplemental statement of the 
case.  An appropriate period of time should 
be allowed for response.

 

____________________________________________
R. F. WILLIAMS 
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs