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