Citation Nr: 1106540 Decision Date: 02/17/11 Archive Date: 02/28/11 DOCKET NO. 07-20 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim for service connection for post-operative diskectomy at the C5-C6 level. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from November 1977 to December 1977 and from February 1979 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines denied the Veteran's petition to reopen a claim for service connection for post-operative diskectomy at the C5-C6 level. The claim was subsequently reopened in June 2007 and the underlying claim denied on the merits. During the appeal the Veteran moved. Accordingly, the jurisdiction of his appeal was transferred to the RO in North Little Rock, Arkansas. As will be discussed in further detail in the following decision, the Board finds that new and material evidence sufficient to reopen a previously denied claim for post-operative diskectomy at the C5-C6 level has been received. Accordingly, the Board is granting this aspect of the Veteran's appeal. The underlying issue of entitlement to service connection for post-operative diskectomy at the C5-C6 level 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. By an unappealed February 1990 decision, the Board denied service connection for post-operative diskectomy at the C5-C6 level. 2. Evidence received after the February 1990 denial of service connection for post-operative diskectomy at the C5-C6 level relates to an unestablished fact necessary to substantiate the issue of entitlement to service connection for post-operative diskectomy at the C5-C6 level and raises a reasonable possibility of substantiating that underlying issue. CONCLUSIONS OF LAW 1. The Board's February 1990 denial of service connection for post-operative diskectomy at the C5-C6 level is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2010). 2. Evidence received since the final February 1990 decision is new and material, and the claim for service connection for post- operative diskectomy at the C5-C6 level is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156, 20.1100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issue of whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for post- operative diskectomy at the C5-C6 level, no further discussion of these VCAA requirements is required with respect to this issue. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Merits of the New & Material Claim The Veteran was denied service connection for post-operative diskectomy at the C5-C6 level in February 1990 because the evidence did not show that his current disorder was related to his in-service neck/upper back complaints. A decision of the Board is a final decision, effective as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2010). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. See also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 (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. Barnett, supra. 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). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). 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). Relevant evidence of record at the time of the February 1990 Board decision consisted of the Veteran's service treatment records and post-service medical records dated from October 1988 to December 1988. The Veteran's STRs contained numerous complaints of neck pain. Specifically, in December 1979, the Veteran had left scapula area pain (rhomboid) with no known injury. He was diagnosed with an acute back strain in May 1980. An undated physical therapy record shows that the Veteran complained of chronic neck pain with a history of the same pain that last occurred in December 1979. X-rays in April 1981 showed straightening of the spine, possibly due to paravertebral muscle spasm, otherwise the examination was negative. The Veteran's discharge examination in July 1981 showed a clinically normal spine and noted that he had a back strain in 1979, complained of occasional discomfort four to five episodes per year, and had no treatment, complications, or sequelae. According to post-service medical records, the Veteran had a diskectomy in October 1988. A record in October 1988 shows that the Veteran reported a history of having injured his neck in service while working on a jet when his lug boots locked when he was turning. The Veteran's current difficulties were reported to have begun in July 1988 when he was moving some heavy spools of wire at work. Accordingly, at the time of the denial of the claim for service connection for post-operative diskectomy at the C5-C6 level in February 1990, the claims folder contained no competent evidence that the Veteran's current disorder was related to his in-service neck/upper back complaints. Thus, the Board, in February 1990, denied the claim of service connection for post-operative diskectomy at the C5-C6 level. The Board's decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2010). The relevant evidence received since the Board's February 1990 denial consists of VA treatment records dated through December 2005, a positive nexus opinion from D.A., M.D. in May 2007, a VA examination opinion in May 2007, and the Veteran's contentions. The May 2007 opinion from Dr. D.A. shows that, based on the Veteran's history, his current back problem was probably related to his previous injuries from his military service and was the probable cause of his degenerative disc disease. The May 2007 VA examiner opined that the Veteran's cervical degenerative disc disease with radiculopathy for which he was operated on in 1988 was not caused by or a result of any in-service event, injury, or disease, including treatment for upper back/neck pain/strain while in service. This newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for post-operative diskectomy at the C5-C6-namely, evidence of a nexus to the Veteran's military service. Specifically, the positive nexus opinion from Dr. D.A. indicates that the Veteran's current disorder is related to his military service. The Board concludes, therefore, that such additional evidence is both new and material. Accordingly, the Board grants the Veteran's application to reopen this previously denied issue. ORDER New and material evidence sufficient to reopen a claim for service connection for post-operative diskectomy at the C5-C6 level having been received, the appeal is granted to this extent only. REMAND Regrettably, a remand is necessary for further development. The Social Security Administration (SSA) in October 2005 requested that VA provide the Veteran with an examination for a continuing disability review to determine if the Veteran was still disabled; the record indicates that the Veteran's disability was a cervical spine disorder. Despite notice that the Veteran is in receipt of SSA disability benefits, no attempt has been made to obtain the SSA decision and underlying medical records used by SSA in their decision. Thus, in light of the existence and relevance of such records to the Veteran's pending VA claim, it is incumbent on VA to remand the claim to obtain those records. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-370 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Additionally, the record indicates that the Veteran receives continuing treatment from VA, although it appears that he has been seen at several locations at different times. The most recent of these documents are dated in December 2005. On remand, the Veteran should be contacted to determine at what VA Medical Center(s) (VAMCs) he has received treatment since December 2005, and records of any cervical spine treatment that the Veteran may have received since December 2005 should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a VCAA notification letter pertaining to the issue of entitlement to service connection for post-operative diskectomy at the C5-C6 level. 2. Obtain, and associate with the claims folder, copies of the SSA decision(s) awarding disability benefits to the Veteran as well as the underlying medical records considered in reaching that(those) determination(s). All attempts to obtain records should be documented in the claims folder. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are Federal records, if they cannot be located or no such records exist, the Veteran should be notified in writing. 3. After obtaining the appropriate release of information forms where necessary, procure records of any post- service cervical spine treatment that the Veteran has received. The Board is particularly interested in records of such treatment that the Veteran may have received from any VAMCs since December 2005. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents, should be made in the claims file. All such available reports should be associated with the claims folder. 4. Then, readjudicate the issue of entitlement to service connection for post-operative diskectomy at the C5-C6 level. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). He has the right to submit additional evidence and argument on the matter that 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 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. 2010). ______________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs