Citation Nr: 0813998	
Decision Date: 04/29/08    Archive Date: 05/08/08

DOCKET NO.  05-32 596A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
spondylolysis of the L5-S1, and if so whether service 
connection is warranted.  

2.  Entitlement to service connection for lumbar disc 
disease.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel




INTRODUCTION

The veteran served on active duty from July 1961 to July 
1982.  This matter comes to the Board of Veterans' Appeals 
(Board) on appeal from a rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, 
Florida.  

Additional evidence was submitted by the veteran in October 
2007, following certification of the appeal to the Board.  
However, this evidence was accompanied by a waiver of Agency 
of Original Jurisdiction (AOJ) consideration.  As such, the 
Board may proceed with appellate consideration at this time.

The issues of entitlement to service connection for 
spondylolysis of the L5-S1, and entitlement to service 
connection for lumbar disc disease are addressed in the 
REMAND portion of the decision below and are REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDINGS OF FACT

1.  In an unappealed May 1983 rating decision, the RO denied 
a claim of entitlement to service connection for 
spondylolysis L5-S1.  

2.  Evidence received since the May 1983 denial relates to an 
unestablished fact necessary to substantiate the claim and 
creates a reasonable possibility of substantiating the claim.  


CONCLUSIONS OF LAW

1.  The May 1983 rating decision which denied service 
connection for spondylolysis L5-S1 is final.  38 U.S.C.A. § 
7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d) (2007).

2.  New and material evidence has been received to reopen the 
finally disallowed claim of entitlement to service connection 
for spondylolysis L5-S1.  38 U.S.C.A. § 5108 (West 2002); 38 
C.F.R. § 3.156(a) (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As required by 38 U.S.C.A. § 5103(a), prior to the initial 
unfavorable agency of original jurisdiction (AOJ) decision, 
the claimant must be provided notice consistent with 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice 
must: (1) inform the claimant about the information and 
evidence not of record that is necessary to substantiate the 
claim; (2) inform the claimant about the information and 
evidence that VA will seek to provide; (3) inform the 
claimant about the information and evidence the claimant is 
expected to provide; and (4) request or tell the claimant to 
provide any evidence in the claimant's possession that 
pertains to the claim, or something to the effect that the 
claimant should give us everything you've got pertaining to 
your claims. 

As to the claim of whether new and material evidence has been 
received to reopen a claim of entitlement to service 
connection for spondylolysis of the L5-S1, there is no 
prejudice to the veteran in deciding the claim at this time.  
VA has satisfied its duty to notify and assist to the extent 
necessary to allow for a grant of the claim.  See Bernard v. 
Brown, 4 Vet. App. 384, 392-94 (1993).  

New and Material Evidence

The RO denied service connection for spondylolysis L5- S1 in 
May 1983.  At that time, the evidence of record consisted of 
the veteran's service records, and a VA examination in April 
1983.  The service medical records revealed complaints of low 
back pain, with findings of low back strain and muscle 
sprain.  A January 1981 X-ray showed lumbosacral 
spondylolysis with a finding of chronic decompensated back 
with intermittent sciatica.  The VA examination X-rays showed 
spondylolysis at L5-S1 with no sign of spondylolisthesis.  

Following a review of the evidence then of record, the RO 
denied service connection, finding that the veteran had a 
constitutional or developmental disorder of the spine.  The 
veteran did not appeal and the decision became final.  38 
U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 
3.160(d) (2007).  

A claimant may reopen a finally adjudicated claim by 
submitting new and material evidence.  38 U.S.C.A. § 5108 
(West 2002).  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.  38 
C.F.R. § 3.156(a) (2007).  

For the purpose of determining if evidence is new and 
material, its credibility is presumed.  Justus v. Principi, 3 
Vet. App. 510 (1992).  The Board has a jurisdictional 
responsibility to consider whether it was proper for a claim 
to be reopened, regardless of whether the previous action 
denying the claim was appealed to the Board.  Jackson v. 
Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

Evidence submitted or associated with the claims file since 
the May 1983 denial includes VA examination reports of June 
2003 and March 2005, private medical records, dated from 1985 
to 2005, copies of Board decisions submitted by the veteran, 
and internet medical literature and articles.  The evidence 
is new, since none of it was previously of record.  
Additionally, private records are found to be material since 
they relate the veteran's back disorder to service and 
indicate that the back disorder resulted from an injury in 
service leading to a chronic problem and surgery.  

In a March 2004 letter a private doctor stated that the 
veteran's back problems did not start until he was in the 
service.  Specifically, it was stated that the veteran 
injured his back in November 1978 while working in close 
quarters while a catapult maintenance officer on the USS 
LEXINGTON.  

In a December 2004 letter a private examiner reported that 
the veteran's back disorder initially began in service and 
worsened over time, eventually requiring surgery.  It was 
stated that the veteran's back problems started with an 
injury sustained which on active duty, leading to a chronic 
problem.  

In an April 2005 letter, a private chiropractor stated that 
he had treated the veteran since 1989.  It had been reported 
to the examiner that during work in service, the veteran 
experienced a loud pop in his low back and had back pain.  
Based on this history, it was the examiner's opinion that the 
veteran had a congenital sacralization of L5-S1 which 
suffered a spondylolysis or break during a service work 
period.  It was stated that this caused the unstable 
spondylolisthesis, resulting in the veteran's back pain over 
the years.  

In a December 2005 statement, a private examiner reported 
that based on the records, the veteran had chronic back 
condition at service discharge and that his current spine 
condition is a result of the spine condition originating in 
service.  

As detailed above, the evidence submitted since the May 1983 
RO decision contains numerous competent opinions indicating 
that the veteran's current back disorder originated during 
active service.  Therefore, such evidence relates to an 
unestablished fact necessary to substantiate the claim, and 
raises a reasonable possibility of substantiating the claim.  
Thus, the evidence is both new and material under 38 C.F.R. 
§ 3.156(a).  Such requirements having been met, the claim is 
reopened, and to this extent, the claim is granted.  




ORDER

New and material evidence having been received, the claim of 
entitlement to service connection spondylolysis L5-S1 is 
reopened.  


REMAND

The Board finds that additional development is required 
before the veteran's claims may be adjudicated on the merits.  
Specifically, a VA examination should be arranged to 
determine the etiology of the veteran's back disorders.

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), the 
Court held that in disability compensation (service 
connection) claims, the VA must provide a VA medical 
examination when there is (1) competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability, and (2) evidence establishing that an event, 
injury, or disease occurred in service or establishing 
certain diseases manifesting during an applicable presumptive 
period for which the claimant qualifies, and (3) an 
indication that the disability or persistent or recurrent 
symptoms of a disability may be associated with the veteran's 
service or with another service-connected disability, but (4) 
insufficient competent medical evidence on file for the VA to 
make a decision on the claim. 

In the present case, the service medical records show 
treatment for back pain on several occasions, with findings 
of chronic decompensated back with intermittent sciatica, 
chronic posterior facet strain, low back strain, and chronic 
low back pain.  

The post-service evidence also reveals diagnoses referable to 
the back.  For example, VA examination in April 1983 found 
that the veteran had early traumatic arthrosis and 
spondylolysis at the L5-S1.  Private records show treatment 
for back problems diagnosed as spondylolisthesis.  
Additionally, a January 1992 private MRI report shows Grade 
I-II spondylolisthesis of the L5-S1 anteriorly secondary to 
bilateral spondylolysis of the L5 associated with a grade III 
spondylolisthesis of the L5, and Grade II-III concentric disc 
protrusions at the L3-4 and L4-5 with Grade II concentric 
protrusions at the L5-S1 level, as well as mild disc 
desiccation at L3-4, 4-5, and L5-S1.  Furthermore, a private 
examiner has reported that the veteran was treated beginning 
in 1986 for a low back disc condition which was complicated 
by a congenital malformation of the L5 segment known as a 
Grade 1 spondylolisthesis.  

Furthermore, as discussed previously, numerous private 
opinions of record relate the veteran's current disorders to 
service.  While those opinions, standing alone, are not found 
to be a sufficient basis for determining the claim at 
present, they do raise a reasonable question as to nexus.  
Accordingly, an examination should be arranged.

Additionally, potentially relevant records have not been 
obtained by the RO/AMC.  The veteran recently applied for and 
received Social Security Administration (SSA) benefits, as 
evidenced by the SSA notice of award letter dated in May 
2004.  The RO/AMC should make arrangements to obtain the SSA 
decision and the associated records on remand.  See Murincsak 
v. Derwinski, 2 Vet. App. 363 (1992).  

The appellant is hereby notified that it is his 
responsibility to report for any examination scheduled, 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 and 3.655 (2007).  

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain a copy 
of the SSA decision granting disability 
benefits to the veteran.  Obtain all 
the records from the SSA that were used 
in considering the veteran's claim for 
disability benefits.

2.  Afford the veteran an examination to 
determine the etiology his low back 
disability(s).  The claims folder, 
including a copy of this remand, must be 
made available to the examiner.  The 
examiner must review the service medical 
records and post-service medical evidence 
of record.  Any indicated tests and 
studies must be accomplished and all 
clinical findings must be reported in 
detail and correlated to a specific 
diagnosis.  

The examiner must provide answers and/or 
opinions regarding the following 
questions: 

1) whether the veteran has current 
diagnoses of lumbar spine disorders, 
including lumbar spine 
spondylolysis, lumbar spine 
spondylolisthesis, and degenerative 
disc disease; 

2) whether lumbar spine 
spondylolysis, or spondylolisthesis 
is a congenital disorder; 

3) if the veteran is diagnosed with 
multiple lumbar disorders, is each 
disorder associated with distinct 
and separate symptoms; 

4) whether any diagnosed back 
disorder including lumbar spine 
spondylolysis, spondylolisthesis, 
and/or degenerative disc disease are 
related to the veteran's service; 

5) whether any lumbar spine disorder 
existed prior to service; and 

6) whether any pre-existing lumbar 
spine spondylolysis, 
spondylolisthesis, or degenerative 
disc disease underwent an 
identifiable permanent increase in 
severity during service that was 
beyond the natural progression of 
the disorder(s).  

The examiner must provide supporting 
rationale and citation to the medical 
evidence of record for each answer and/or 
opinion.  If any opinion cannot be 
provided without resort to speculation, 
it must be noted in the examination 
report.  The rationale for all opinions 
expressed must be provided.  The report 
prepared must be typed.

3.  When the development requested has 
been completed, the case should again be 
reviewed by the RO/AMC on the basis of 
the additional evidence.  If the benefit 
sought is not granted, the veteran and 
his representative should be furnished a 
supplemental statement of the case, and 
be afforded a reasonable opportunity to 
respond before the record is returned to 
the Board for further 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).




______________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs