Citation Nr: 1237294 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 09-14 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from December 1988 to December 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the claim was subsequently returned to the VA RO in Denver, Colorado. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in August 2012. A transcript of the hearing is associated with the claims file. Although the RO has determined that new and material evidence has been submitted to reopen the Veteran's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board notes that the Veteran submitted a timely notice of disagreement with the August 2011 rating decision which denied entitlement to service connection for sleep apnea. A review of the record shows that in a June 2012 statement, the Veteran withdrew his appeal with respect to this issue. Therefore, the Board has limited its consideration accordingly. The issue of entitlement to service connection for a low back disability is addressed in the REMAND following the ORDER section of this decision. FINDINGS OF FACT 1. In a March 2007 rating decision the VA RO in Seattle, Washington denied reopening of the claim of entitlement to service connection for low back pain. 2. The evidence associated with the claims file subsequent to the March 2007 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. New evidence is defined as evidence not previously submitted to agency decision-makers. 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). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The Veteran originally filed his claim of entitlement to service connection for low back pain in January 1993. In a November 1993 rating decision, the Veteran was denied entitlement to service connection for low back pain based on a finding that there was no evidence that a chronic back condition was incurred in service. The Veteran did not appeal this decision. In February 2003, the Veteran filed a claim to reopen his claim of entitlement to service connection for low back pain. In a March 2003 rating decision, the RO denied reopening of the claim based on a finding that new and material evidence had not been submitted. The Veteran did not appeal this decision. In September 2006, the Veteran filed another claim to reopen his claim of entitlement to service connection for chronic low back pain. In a March 2007 rating decision, the RO denied reopening of the claim based on a finding that new and material had not been submitted. The Veteran did not appeal this decision. The pertinent evidence of record at the time of the March 2007 rating decision included the following: the Veteran's service treatment records (STRs), which show that the Veteran reported experiencing back pain and stiffness at the time of his October 1992 separation examination; a February 2004 private medical treatment record, which shows that the Veteran complained of experiencing low back pain for several years at that time; and the Veteran's September 2006 statement in which he reported that he had first experienced low back pain in active service and that he had continued to experience low back pain since his separation from such service. The pertinent evidence that has been received since the March 2007 rating decision includes the following: a February 2008 letter from the Veteran's private primary care provider, Dr. L.H., in which she opined that the Veteran's current low back disability was more likely than not caused by his military work as a general construction equipment operator from 1988 to 1992; an April 2009 letter from the Veteran's private chiropractor, in which it is reported that the Veteran had been receiving treatment since May 2008 for ongoing complaints of low back pain that he had been experiencing for a number of years; and an August 2012 letter from the Veteran's private chiropractor, in which it is reported that the Veteran has continued to receive ongoing chiropractic treatment for low back pain that had been chronic for many years. The Board finds that the February 2008 letter from the Veteran's private primary care provider indicating that his current low back disability was caused by his active service is new and material. In this regard, the Board notes that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim for entitlement to service connection for a low back disability is in order. ORDER The Board having determined that new and material evidence has been presented, reopening of the claim of entitlement to service connection for a low back disability is granted. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for a low back disability is decided. The Veteran has asserted that he has a low back disability that is related to his occupational duties during active service, to specifically include the use of a jackhammer. A review of the Veteran's STRs shows that in October 1992, the Veteran was afforded a separation examination. At that time, the Veteran checked "yes" on the report of medical history to the question of whether he experienced recurrent back pain. It was noted that the Veteran reported experiencing back pain and stiffness as a result of using a jackhammer in his occupational duties. The Veteran was diagnosed with low back pain at the time of his separation from active service. The Veteran has reported that he has continued to experience low back pain since his separation from active service. The Board notes that the Veteran is competent to report when he first experienced back pain and that it has continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible. The Board notes that of record is a February 2008 opinion from the Veteran's private treatment provider. In her opinion, Dr. L.H. reported that she had reviewed the Veteran's military records and his current treatment records. Dr. L.H. opined that the Veteran's current low back disability was more likely than not caused by his military work. However, Dr. L.H. did not provide a rationale for her opinion. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). As Dr. L.H. did not provide a rationale for her opinion, the February 2008 opinion is inadequate for adjudication purposes and so, cannot serve as the basis of a grant of entitlement to service connection. In April 2008, the Veteran was afforded a VA examination. At that time, the VA examiner diagnosed lumbosacral spine strain with mild disc space narrowing at L4-5 and mild anterior spondylosis. The examiner opined that it was not likely that the Veteran's current low back disability was due to the injury sustained as a combat engineer during active service. In this regard, the examiner noted that while it was true that occupational requirements such as excessive carrying of loads, frequent repeated bending and lifting, and/or the use of a jackhammer (particularly when carried to the point of fatigue), could lead to deterioration of the joints of the lumbar spine. However, the Veteran only had one complaint of low back pain in service and he did not receive treatment for back pain again until 16 years after his separation from active service. The examiner noted that the etiology of the Veteran's low back pain could not be determined, but that other than occupational etiology, there were other causes that could lead to chronic low back pain; to include mechanical or postural, obesity, age related disc degeneration, or trauma. The Board notes that the examiner opined that the Veteran's current low back condition was not likely due to an injury sustained in active service. The VA examiner applied the wrong standard in this case. It need only be shown that it is at least as likely as not that the Veteran's current low back disability is related to his active service, not that it is likely. Additionally, the Veteran has reported that while he did not seek treatment for his low back pain until at least 2004, he had in fact experienced back pain since his separation from active service. Moreover, the Board has found the Veteran credible in this regard. The VA examiner failed to take into account the Veteran's lay statements regarding continuity in forming her opinion. For these reasons, the April 2008 medical opinion is not adequate for adjudication purposes and so, cannot serve as the basis of a denial of entitlement to service connection. Therefore, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present low back disability. Additionally, current treatment records should be obtained before a decision is rendered in this case. Accordingly, this case is remanded to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran, specifically including mental health treatment records. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts, in order to allow them the opportunity to obtain and submit those records for VA review. 2. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review should be conducted of the electronic file, and if documents contained therein are deemed to be relevant to the issue on appeal and are not duplicative of those already found in the paper claims files, action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims file and provide medical opinions in conjunction with the development requested herein. 3. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of any currently present low back disability. The claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on an examination of the Veteran and a review of the record, the examiner should provide an opinion with regard to any currently present low back disability as to whether it is at least as likely as not (a 50 percent or better probability) that the disability is etiologically related to the Veteran's active service, to specifically include his complaints of low back pain at the time of his October 1992 separation examination. The supporting rationale for all opinions expressed must be provided. 4. The RO or the AMC should confirm that the examination report and any opinions provided comport with this remand and undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the Veteran's claim on appeal based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs