Citation Nr: 1112192 Decision Date: 03/28/11 Archive Date: 04/06/11 DOCKET NO. 09-18 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served for over 20 years prior to his retirement from active duty in April 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from an November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A May 2010 rating decision granted the Veteran service connection for sleep apnea. Accordingly that claim is no longer in appellate status before the Board. The issue of service connection for a low back disability 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. An unappealed April 2007 rating decision denied reopening of the Veteran's claim of service connection for a low back disability. 2. Evidence received since the April 2007 rating decision includes a statement from the Veteran's former chiropractor, and this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. CONCLUSION OF LAW New and material evidence to reopen the claim of service connection for a low back disability has been received, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and implemented at 38 C.F.R. § 3.159 (2010), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Because the previously final claim of entitlement to service connection for a low back disability has been reopened, the Board need not discuss whether the notice requirements of the VCAA have been met. The Veteran's claim for service connection for a back disability was denied by an unappealed November 1989 rating decision. In an unappealed April 2007 rating decision the RO declined to reopen the Veteran's claim for service connection for a low back disability. Except as provided 38 U.S.C.A. § 5108, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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). At the time of the April 2007 unappealed rating decision the pertinent evidence of record included the Veteran's service treatment records and an August 1989 VA medical examination report. The record did not contain any documented complaints or treatment for a back disability between June 1975 and the August 1989 VA examination report. The newly submitted evidence includes a statement from a chiropractor who stated that he treated the Veteran's low back on a number of occasions between 1979 and 1989. As this newly received medical evidence provides evidence of related to continuity of symptoms, which was not of record prior to the last final rating decision, it is material to the Veteran's claim. Because new and material evidence has been received, the claim of service connection for a low back disability is reopened. ORDER New and material evidence having been received, the claim of service connection for a low back disability is reopened. REMAND In an August 2008 letter, Thomas Baird, D.C., the Veteran's chiropractor, stated that he had treated the Veteran between 1979 and 1989. The record reveals that Dr. Baird's records from 1979 to 1989 have been destroyed and are unavailable. In his letter, Dr. Baird did not specify any conditions for which he had treated the Veteran. Dr. Baird should be requested to identify the conditions for which he treated the Veteran during that time. The Board further notes that in a September 2008 letter the Veteran stated that he was about to resume treatment with Dr. Baird. Copies of any new treatment records should also be requested from Dr. Baird. In September 2008 the Veteran reported that he had received treatment from another chiropractor, Dr. Caraway, in 1996. He stated that he had been unable to contact Dr. Caraway. The AMC should make an attempt to obtain copies of records of the Veteran's treatment from Dr. Caraway. The Veteran should be provided a new VA examination in order that a medical opinion considering any newly obtained evidence may be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, contact Thomas Baird, D.C., and request all of the Veteran's treatment records. The letter to Dr. Baird should also ask him to identify the disabilities for which he treated the Veteran from 1979 to 1989. 2. After obtaining any necessary authorization from the Veteran, contact Dr. Caraway in New Bern, North Carolina, and request copies of all of the Veteran's treatment records. 3. When the above actions have been completed, afford the Veteran a VA medical examination of the lumbosacral spine. The examiner should review the Veteran's claims file. The examiner should provide an opinion concerning whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has any current low back disability that is related to service, to include the complaints of back pain in 1974 and 1975. In so doing, the examiner should consider the Veteran's credible testimony that he had had back pain since service. Rationale for all opinions expressed should be provided. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case which includes a summary of additional evidence submitted and the reasons for the decision. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2010). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs