Citation Nr: 1301189 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-01 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for a low back disability, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined to reopen a previously denied claim of service connection for a low back condition. The matter has otherwise been adjudicated by the RO in Winston-Salem, North Carolina. A Travel Board hearing was held in July 2012 with the Veteran in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Veteran's Virtual VA file has also been reviewed as part of his appeal. The issue of entitlement to service connection for a low back disability on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran did not appeal a November 2000 RO decision that denied reopening of his claim for service connection for a low back disability. 2. Evidence received since the November 2000 decision relates to a previously unestablished fact necessary to substantiate the Veteran's claim of service connection for a low back disability. CONCLUSIONS OF LAW 1. The November 2000 RO decision that denied reopening of the claim of service connection for a low back disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). 2. 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, 3.304(d) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the Board is reopening the Veteran's previously denied claim. This represents a full grant of the benefits being decided on appeal. Accordingly, assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. New and Material Evidence Historically, the Veteran was denied service connection for a low back disability in a May 1993 rating decision. He was notified of this decision and of his appellate rights by letter dated June 7, 1993. He submitted a notice of disagreement in December 1993. The RO issued a statement of the case in January 1994. The Veteran did not submit a substantive appeal. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). Thus, the May 1993 decision is final because the Veteran did not file a substantive appeal. See 38 C.F.R. § 20.200 (2012). In August 2000, the Veteran submitted a petition to reopen his claim for service connection for a low back disorder. By letter dated August 29, 2000, the RO requested that he submit evidence in support of his claim. Thereafter, by letter dated November 6, 2000, the RO notified the Veteran that his claim had been denied because he had not submitted new and material evidence to reopen his claim. The Veteran was notified of his appellate rights. He did not appeal, and no new and material evidence was received within one year of the November 2, 2000 determination. See 38 C.F.R. §§ 3.156(b), 20.200. Thus, the November 2000 RO decision became final. The Veteran again sought to reopen his claim in June 2008. The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). 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 a 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) (2012). Only evidence presented since the last final denial on any basis will be considered in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. In essence, at the time of the prior denial on the merits, the evidence of record established that the Veteran injured his back in service, but these injuries were acute and had resolved. The evidence further established that the Veteran injured his back again in September 1977 after his discharge from service. Since the prior final decision, additional evidence has been added to the claims file. The Veteran submitted statements dated August 2010 from two of his siblings in support of his claim. Collectively, they reported that the Veteran was in excellent health prior to service. During service, he injured his back while taking a wheel off of a truck. After his discharge, he continued to complain of constant, chronic back pain. Private treatment records dated from December 2010 through April 2012 reflect diagnoses of lumbago and sciatica. The Veteran reported that his condition had its onset "many years ago in Germany." In his own statement dated July 2012, the Veteran recounted injuring his back in service while lifting a tire. He had experienced pain and discomfort since that time. At his July 2012 Board hearing, the Veteran also testified that he sought treatment from a private facility for his back within a year of his discharge from service. However, he could not recall the name of the facility or the treating physician. The Board finds this evidence to be new, as it was not part of the record at the time of the prior final decision. Moreover, it is material, as it relates to the previously unestablished fact of whether the Veteran had a chronic back disability after service. Specifically, the statements from the Veteran and his siblings allege a continuity of low back symptomatology following the Veteran's back injury in service. These statements are presumed to be credible. Therefore, new and material evidence has been received, and the claim is reopened. ORDER The Veteran's previously denied claim for service connection for a low back disability is reopened; the appeal is granted to this extent only. REMAND Additional development is necessary in order to fully and fairly adjudicate the Veteran's claim. First, at his July 2012 Board hearing, the Veteran testified that he received treatment at the VA Medical Center in Fayetteville, North Carolina, sometime between 1963 and 1965. Those records have not been associated with the claims file and should be obtained on remand. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA is held to have constructive notice of documents generated by VA, even if the documents have not been made part of the record in a claim for benefits). Second, review of the claims folder shows that the Veteran was awarded Social Security Administration (SSA) disability benefits in October 1989. The possibility that SSA records could contain evidence relevant to his claim cannot be foreclosed absent a review of those records. Thus, remand is also necessary to request any available SSA records. See 38 C.F.R. § 3.159(c)(2) (2012); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Third, the Veteran suffered an on-the-job injury to his back in September 1977. Records related to this injury, including any records related to a Workman's Compensation claim, should be obtained. The Veteran also reported receiving treatment from Dr. Eddie Powell as early as 1986. His complete treatment records from Dr. Powell should also be obtained. Fourth, a competent medical opinion is necessary in this case to determine the nature etiology of the Veteran's current low back disability. Service treatment records show the Veteran underwent examinations in January 1959 and May 1959. No relevant abnormalities were noted. However, in August 1959, he was treated for a back strain. He was treated again in July 1960 and August 1960 for a back sprain. However, there were no further complaints documented in service, and additional examinations in June 1961 and August 1963 reflect normal findings. VA records dated August 1978 show the Veteran injured his back in September 1977 while working. However, he reported having backache before that incident. He was diagnosed with spinal canal stenosis and lumbosacral radiculopathy in July 1990. As noted above, recent treatment records reflect ongoing treatment for lumbago and sciatica. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, 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. As the Veteran has a current low back disability and documented low back injuries in service, a VA examination and opinion is warranted. Finally, the issue of entitlement to service connection for a shortened left leg has been raised by the record. Specifically, in a July 2012 statement submitted by the Veteran, he claimed that this birth defect should have been discovered on his entrance examination and was aggravated by the stress of physical training. He also stated that the combination of his birth defect and the in-service injury to his back is the underlying cause of his current back problems. The claim for service connection for a shortened left leg is inextricably intertwined with the service connection claim on appeal; therefore, it should be adjudicated on remand. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are 'inextricably intertwined' when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The Veteran should also be provided VCAA notice as to the matter of secondary service connection. Accordingly, the case is REMANDED for the following action: 1. After complying with the duties to notify and assist, adjudicate the Veteran's claim for service connection for a shortened left leg. The Veteran should be notified of this decision and of his appellate rights. 2. Provide the Veteran a VCAA letter as to the matter of service connection for a low back disorder, as secondary to a shortened left leg. See 38 C.F.R. § 3.310. 3. Make arrangements to obtain the Veteran's treatment records from the VA Medical Centers in Fayetteville and Durham, North Carolina, dated from September 1963 to March 1977 (to include any archived records) and dated from June 2009 forward. If attempts to obtain these records are unsuccessful, the RO/AMC should document that fact. 4. Make arrangements to obtain any records relating to a Workers' Compensation claim filed by the Veteran in 1977. 5. Ask the Veteran to identify all medical care providers that treated him for his low back injury in September 1977, and make arrangements to obtain these treatment records. 6. Make arrangements to obtain the Veteran's complete treatment records from Eddie Powell, M.D. in Roseboro, N.C., dated since 1986. 7. Make arrangements to obtain copies of all documents and/or evidentiary material pertaining to the Veteran's 1989 application(s) for SSA disability benefits. If these records are not available, a negative reply must be provided. 8. Thereafter, the Veteran should be scheduled for a VA examination with an appropriate examiner to determine the etiology of his low back disability. The claims file, including a copy of this remand, should be made available to the examiner, and the examiner should indicate whether the claims file was reviewed. All indicated tests and studies should be completed, and the examiner should opine on the following: Whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed low back disability had its clinical onset during active service or is related to any in-service disease, event, or injury, to include documented findings of low back strain or sprain in August 1959, July 1960, and August 1960. In rendering this opinion, the examiner should specifically review and address the findings in service, as well as the August 1978 treatment records which document the Veteran's September 1977 back injury at work and his history of backache prior to that incident, and the Veteran's report of continuing back symptomatology since service. A complete rationale for any opinion expressed should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 9. Next, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 10. Finally, after completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate 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. 2012). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs