Citation Nr: 1124386	
Decision Date: 06/28/11    Archive Date: 07/06/11

DOCKET NO.  09-15 739	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Whether new and material evidence has been received to reopen a claim of service connection for a low back disability, including myofascial pain syndrome and chronic lumbar strain.  



REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs



ATTORNEY FOR THE BOARD

A. Barner, Associate Counsel




INTRODUCTION

The Veteran served on active duty from September 1989 to September 1997.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Board has determined that new and material evidence has been received to reopen the previously denied claim of service connection for a low back disability.  Additional evidentiary development, however, is necessary prior to further consideration of the merits of the claim.  As set forth below, the issue of service connection for a low back disability, to include as secondary to the service-connected knee disabilities 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.  In a May 1998 rating decision, the RO denied the Veteran's claim of service connection for a low back disability.  The Veteran did not appeal that decision, and it became final.  

2.  Evidence received since the RO's May 1998 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability, and therefore raises a reasonable possibility of substantiating the issue on appeal.  





CONCLUSIONS OF LAW

1.  The May 1998 rating decision which denied the Veteran's claim of entitlement to service connection for a low back disability is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010).  

2.  Evidence received since the May 1998 rating decision is new and material, and the claim of service connection for a low back disability is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).  To the extent there may be any deficiency of notice or assistance as to reopening the claim, there is no prejudice to the appellant in proceeding given the favorable nature of the Board's decision with regard to reopening.

Under applicable criteria, a claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim.  If the claim is thus reopened, it will be reviewed on a de novo basis, with consideration given to all the evidence of record.  38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991).

New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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).  Thus, reopening is required if newly submitted evidence, combined with VA assistance and considering the other evidence of record, would raise a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110, 120-21 (2010).

The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  This evidence is presumed credible for the purposes of reopening the claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995).  Lay persons are competent to report symptoms and may also be competent to establish a nexus to service under certain circumstances.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009).  

In May 1998, the RO denied service connection for a low back disability.  The evidence at the time consisted of service treatment records from 1989 to 1997, including his Physical Evaluation Board decision, and a January 1998 VA examination report showing a diagnosis of myofascial pain syndrome of the lumbar spine.  Service connection was denied because there was no link between the Veteran's low back disability and any disease or injury during service.  The Veteran was notified of the decision and his appellate rights, but failed to file a timely appeal.  

In the present appeal, additional evidence has been received in support of reopening the Veteran's claim of service connection for a low back disability.  For the reasons to be discussed at least some of this evidence is new and material, and his claim may be reopened for consideration on the merits.  

An additional service treatment record dated September 1997 regarding complaints of low back pain was associated with his claims folder.  In support of his claim, the Veteran has also submitted additional evidence, including, medical records, both private and from VA documenting his complaints of back pain.  He has also submitted Internet pictures of the types of postures that he would have assumed in relation to his in-service duties, and which he suggests contributed to his low back disability.  Additionally, the Veteran specifically discusses a theory of entitlement not yet developed, contending that his low back disability is connected to his service-connected knee disabilities; he explains that he lifts with his back as a result of his knee problems.

The Veteran has also submitted a letter from Dr. James E. Dicey, his chiropractor, wherein a positive link is suggested between his low back problems and in-service duties.  

This evidence is new, in that it was not of record, at the time of the May 1998 denial.  Additionally, the newly received evidence is not cumulative and redundant of evidence already of record, as it suggests the possibility of in-service incurrence of a low back disability, or of a low back disability as secondary to the Veteran's service-connected knee disabilities.  No such evidence was of record at the time of the prior denial.

Based on the above, the Board finds the aforementioned additional evidence to be both new and material.  Having submitted new and material evidence, the Veteran's claim of service connection for a low back disability must be reopened and considered on the merits.  



ORDER

New and material evidence having been received, the claim of service connection for a low back disability is reopened.





REMAND


The Veteran contends that his low back disability is due to service, or secondarily due to his service-connected knee disabilities.  Service connection may be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability.  38 C.F.R. § 3.310 (2010); Allen v. Brown, 7 Vet. App. 439 (1995). 

Service treatment records show that the Veteran complained of back pain while in service.  For instance, in September 1992 he complained of low back pains, and in March 1993 he complained that he had back pain for the previous 6 months, and was referred to urology.  Again in September 1997 he complained of low back pain.  

In January 1998, a VA examiner relayed that the Veteran developed low back pain approximately a year earlier, and assessed him as having myofascial pain syndrome of the lumbosacral spine.  

In August 2006, the Veteran was afforded an examination for his low back disability.  At that time the examiner noted that there were no private medical records to review; however, he reviewed the claims folder and computerized medical records.  X-ray findings of the Veteran's lumbosacral spine were reported as negative.  The Veteran complained of increased back pain with repetitive lifting, sitting more than an hour, walking greater than 30 minutes.  He also reported pain, reported as 10 of 10 in forward flexion on a daily basis, and with flare-ups which occurred three times yearly.  He reported stiffness in the mornings, and occasional thoracic paraspinous muscle spasms.  Examination revealed a flat back with loss of lordosis, limited lateral and forward flexion, as well as limited extension, and pain on motion with forward flexion.  He was assessed as having chronic lumbar strain; however, in the examiner's opinion it was less likely than not due to conditions suffered while in service.  

Private medical records from Oregon State University show that the Veteran was seen in February 2002 with complaints of cramping in his low back, and in October 2004 complaining of chronic low back pain, resulting in an impression of chronic lumbar strain.  

The Veteran has asserted that his back disability is related to physical exertions during service, and provided Internet pictures with his own explanations of postures he would have assumed in the course of his duties.  He has also asserted that his low back disability is secondary to his service-connected knee disabilities.  Specifically, he explained that although he should have squatted to lift, he adapted to pain in his knees by lifting with his back.  The Veteran has also clarified that his back pain in service was in addition to his urology problems.  

Dr. Dicey, the Veteran's treating chiropractor, opined in April 2010 that the Veteran's in-service duties, involving moving equipment at compromised stress loads and angles, were sufficient to cause deep strains and sprains to his low back, and other areas.  As such, he thought the Veteran's injuries arose most likely than not due to the Veteran's job duties in the Air Force.  The Veteran's corresponding medical records from Dr. Dicey were not included with the letter, and the letter generally listed a variety of injuries for the "(r & l) knees, low, mid back and abdomen."  

There is insufficient medical evidence upon which to render a decision on the Veteran's claim of service connection for a low back disability, to include as secondary to his service-connected knee disabilities.  

VA has a duty to ensure that any examination or VA opinion it provides is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  An opinion should be provided as to whether it is at least as likely as not that the Veteran's low back disability was due to, or caused by or aggravated by his service-connected knee disabilities.  The VA examiner should specifically addresses the private medical records, including Dr. Dicey's letter, and offer an opinion as to whether the Veteran's current low back disability was due to, or the result of service, or otherwise caused or aggravated by his service-connected knee disabilities.  

Thus, this claim is remanded for a medical opinion to clarify the nature and etiology of the Veteran's claimed low back disability, specifically whether the Veteran's low back disability was incurred in service or due to his service-connected knee disabilities.  This examination is required pursuant to 38 C.F.R. § 3.159(c)(4).

In addition, it does not appear that the Veteran has been provided VCAA notice with respect to substantiating a claim for secondary service connection specifically for a low back disability, to include as secondary to his service-connected knee disabilities.  Notice should be provided on remand.

In April 2010, subsequent to the most recent statement of the case, the Veteran submitted a statement in support of his claim, which included medical records, a private medical opinion, and photographs with explanations of the type of work he engaged in while in the service, all of which pertained to his claimed low back disability.  These records were not all previously of record, nor considered by the RO, the agency of original jurisdiction.  Additionally, the Veteran did not waive consideration of such evidence by the RO.  See 38 C.F.R. § 20.1304.  

Accordingly, the case is REMANDED for the following action:

1.  Issue corrective VCAA notice to advise the Veteran of the information and evidence necessary to substantiate a claim for service connection on a secondary basis.

2.  Notify the Veteran of the necessity of obtaining his private medical records from Dr. Dicey, and inform him that he may submit these or any other pertinent private medical records himself, or authorize VA to obtain them in his behalf.  Include records release and authorization forms so that VA has the authority to obtain these records.  If these records are unobtainable, formal findings are required that either the records sought do not exist, or that further efforts to obtain those records would be futile, and the Veteran must be provided proper notice.
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3.  Following receipt of any outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed low back disability.  The Veteran's claims folder should be made available to the examiner for review.  The examiner should discuss the April 2010 opinion by Dr. Dicey, and render an opinion as to whether it is at least as likely as not that any current low back disability was incurred in service, or was caused or aggravated by the Veteran's service-connected knee disabilities.  

4.  After undertaking any additional development deemed appropriate, adjudicate the issue on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable 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 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