Citation Nr: 0813744 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-29 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim for entitlement to service connection for low back strain. 2. Entitlement to service connection for low back strain. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran served on active duty from January 1964 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's application to reopen a previously denied claim of entitlement to service connection for low back strain, for failure to submit new and material evidence. In March 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue of entitlement to service connection for a back disorder 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. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. In a March 1975 rating decision, the RO denied the veteran's claim for service connection for a back condition; although notified of the denial, the veteran did not initiate an appeal. 3. New evidence associated with the claims file since the March 1975 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for a back condition, and raises a reasonable possibility of substantiating the claim for service connection for low back strain. CONCLUSIONS OF LAW 1. The March 1975 RO rating decision that denied the veteran's claim for service connection a back condition is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. As evidence received since the RO's March 1975 denial is new and material, the criteria for reopening the veteran's claim for service connection for low back strain are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the veteran's petition to reopen his claim for service connection for a back condition was received in February 2005. He was notified of the provisions of the VCAA by the RO in correspondence dated in March 2005. This letter notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in any evidence in his possession that would support his claim. Thereafter, the claim was reviewed and a supplemental statement of the case (SSOC) was issued in July 2006. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in March 2006. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In light of the favorable determination with respect to whether new and material evidence has been submitted, and the need to remand for additional information with regard to the merits of this claim, no further discussion of VCAA compliance is needed as concerns this issue. New and Material Evidence In January 1975, the veteran filed a claim for service connection for a back condition. In a March 1975 rating decision, the RO denied the veteran's claim, noting that the veteran's in-service back conditions were acute in nature, resolved without residuals, and the conditions treated in service were unrelated to his current diagnosed back condition. Evidence of record included the veteran's service treatment records; lay statements from the veteran, his father-in-law and his brother; a February 1975 Certificate of Attending Physician executed by N.B.P., M.D.; and a March 1975 Certificate of Attending Physician executed by W.G.N., D.C.. Although notified of the March 1975 denial, the veteran did not initiate an appeal of this determination. As such, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The veteran attempted to reopen his claim for service connection for a back condition in February 2005. This appeal arises from a July 2005 rating wherein the RO reopened and denied of the veteran's claim for service connection for low back strain. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2007). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). In this case, the last final denial of the claim was the March 1975 RO rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence added to the claims file since the March 1975 denial includes statements from the veteran; VA treatment records dated from 2002 to 2006; a VA examination report dated in June 2005; records from the Social Security Administration; private treatment records dated from 1977 to 2000; and a March 2008 Travel Board hearing transcript. This evidence is "new" in that it was not previously before agency decision makers at the time of the March 1975 decision, and is not cumulative or duplicative of evidence previously considered. This evidence is "material", as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, i.e., the existence of a medical relationship between the veteran's current back disability and events during his active service. Consequently, this evidence raises a reasonable possibility of substantiating the veteran's claim for service connection for low back strain. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for low back strain are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER To the limited extent that new and material evidence to reopen the claim for service connection for low back strain has been received, the appeal is granted. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), are applicable to this appeal. As an initial matter, in March 2008, the veteran submitted additional evidence to the RO (that was then forwarded to the Board) in support of his claim. Additional new evidence associated with the record consisted of private treatment records and records from the Social Security Administration that are pertinent to the veteran's claim for service connection for low back strain. As the veteran has not waived agency of original jurisdiction consideration of the evidence submitted in March 2008, the case must be remanded for additional development. See 38 C.F.R. § 20.1304(c) (2007). In multiple March 2002 VA treatment notes, the veteran mentioned that he has received Social Security disability compensation and that he had filed a claim for Worker's Compensation due to back injuries. The Court has held that where there is notice the veteran is receiving SSA disability benefits VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents. See Murincsak v. Derwinski, 2 Vet. App. 363, 372- 3 (1992). Although VA is not obligated to follow a determination made by SSA or any worker's compensation office, these records may be relevant to the matter on appeal. In this case, the veteran was afforded a VA spine examination in June 2005. The Board observes that the VA physician indicated that he did not have access to the veteran's medical records; it appears that he expressed his opinion based on the veteran's recitation of his medical history and on findings contained in a limited sample of VA treatment records. The present record further indicates that additional VA and private treatment records have been added to the claims file since the veteran's claimed lumbar disability was last evaluated by VA examination in June 2005. In Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991), the Court held that the duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one". In view of the foregoing, the Board finds that it is necessary obtain an additional medical examination to determine whether the veteran has a current lumbar spine disability related to events during active service. See 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The appellant is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2007). The RO should also obtain and associate with the claims file all outstanding VA records. The claims file reflects that the veteran has received medical treatment from the VA Medical Center (VAMC) in Chillicothe, Ohio; however, as the claims file only includes records from that provider dated up to July 2006, any additional records from that facility should be obtained. The Board emphasizes that 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). During his March 2008 hearing, the veteran testified that he had received workman's compensation benefits resulting from a back injury. The records upon which that award were based should be obtained and associated with the claims folder. Accordingly, in view of the foregoing discussion, the case is REMANDED for the following actions: 1. The AMC/RO should contact the veteran and obtain the names, addresses and approximate dates of treatment for all health care providers, VA and non-VA, that treated him for his claimed low back condition since January 1966. Of particular interest are any VA records of evaluation and/or treatment of the claimed low back disability, for the period from July 2006 to the present, from the Chillicothe VAMC. Also of interest are any private treatment records from the following identified treatment providers for the time period from January 1966 to the present: Dr. Quintos; Dr. Green; Dr. Hoxie; Mercy Medical Center; W. O. Smith, M.D.; C. Peters, D.O.; N. B. Pavlatos, M.D.; and W.G. Neer, D.C. After the veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Appropriate efforts should be taken to obtain a complete copy of the veteran's Social Security Administration disability determination with all associated medical records. 3. Request records in connection with the worker's compensation claim referred to by the veteran in the record. The AMC/RO should request that the veteran identify the source of these records (i.e., which worker's compensation office handled his claim), in order for the AMC/RO to make reasonable efforts to obtain them. 4. Thereafter, the veteran should be afforded a VA orthopedic examination to determine the etiology of his claimed lumbar spine disability. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. Following review of the claims folder, and an examination of the veteran, the physician is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the veteran's current lumbar spine disability is the result of any event or injury incurred during his active service. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed. All positive and negative evidence should be discussed by the physician. The conclusions of the examiner should reflect review and the discussion of all pertinent evidence, including in-service treatment for back pain and the numerous post-service lumbar spine injuries documented in the private treatment records. 5. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 6. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations-specifically to include consideration of all of the evidence of record since the July 2006 SSOC. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs