Citation Nr: 1303748 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-29 349 ) 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 in order to reopen a claim of entitlement to service connection for a low back disorder. ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from November 1973 to November 1978 in the United States Air Force. He also served in the North Carolina Army National Guard (NCARNG) from March 1979 to March 1982, with verified periods of active duty for training (ACDUTRA) from June 1, 1979, to June 15, 1979, May 10, 1980, to May 24, 1980, and May 9, 1981, to May 23, 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 2011, the Veteran's former representative revoked its representation the Veteran. Additional correspondence of record detailed that the Veteran had been informed of the revocation. 38 C.F.R. § 14.631(f)(1) (2012). The Veteran failed to appear for his scheduled Board videoconference hearing in January 2013 without explanation. He has not requested that the hearing be rescheduled. As such, the hearing request is considered withdrawn. See generally 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to service connection for a right knee disorder has been raised by the record in a March 1994 statement, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The issue of entitlement to service connection for a low back disorder is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In a March 1998 decision, the Board denied the Veteran's claim of service connection for a low back disorder. 2. New evidence associated with the claims file since the March 1998 Board decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disorder, or raises a reasonable possibility of substantiating the claim of service connection for a low back disorder. CONCLUSIONS OF LAW 1. The Board's March 1998 decision, which denied the Veteran's claim of entitlement to service connection for a low back disorder is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012). 2. As evidence received since the Board's March 1998 denial is new and material, the criteria for reopening the Veteran's claim of entitlement to service connection for a low back disorder are met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by reopening the claim of entitlement to service connection for a low back disorder at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Unappealed rating decisions by the Board are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. When a claimant requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim. 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Historically, the Veteran originally filed a claim for service connection for a low back disorder in July 1991, asserting that his condition onset in 1980. In a February 1992 rating decision, notice of which was mailed to the Veteran that same month, the RO denied that claim, finding that the Veteran's low back disorder was not shown in active service. The Veteran appealed the decision to the Board. In a March 1998 decision, the Board denied the claim for service connection for a low back disorder, finding that the alleged in-service low back injury was not shown by competent medical evidence and that there was no cognizable evidence of record relating the low back disability to a period of active service. The Veteran appealed this determination of the Board to the United States Court of Appeals for Veterans Claims (CAVC). In May 2000, the CAVC affirmed the Board's March 1998 decision. In July 2007 and June 2008, the Veteran sought to reopen the claim of entitlement to service connection for a low back disorder. This appeal arises from the RO's December 2008 rating decision that found no new and material evidence had been submitted to reopen the Veteran's claim. It was indicated that there was no evidence showing in-service treatment for or a diagnosis of a low back injury or disability while on active duty or ACDUTRA. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Evidence added to the claims file since the March 1998 Board decision includes statements from the Veteran and his former representative; private treatment records dated from 1996 to 2002; a June 2008 statement from a private chiropractor; and copies of service personnel records from the NCARNG. As an initial matter, photocopies of service records from the NCARNG, as well as private treatment notes dated in 1996 are not considered "new" and are duplicative of evidence previously considered. However, other evidence received is "new" in the sense that it was not previously before agency decision makers. The new evidence of record included private urology treatment records dated from 1999 and 2002 from V. S. L., M. D. that referenced neurological and lumbar spine problems. A June 2008 letter from a private chiropractor, G. M., D. C. was also added to the record. It was noted that the Veteran reported a specific incident in 1979 or 1980 while lifting railroad ties at Fort Bragg that initiated his low back problems. During an attempt to lift one of the ties, he strained and felt a pop in his lower back, as well as sharp, shooting pain down his left leg. The Veteran reported that he has been bothered by those symptoms since that incident. The private chiropractor listed an assessment of failed low back syndrome and opined that the Veteran's current low back condition was the result of the incident incurred in 1979 or 1980, noting that the Veteran's current symptoms were consistent with that injury. This evidence is "material", as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, i.e., a causal relationship between the present, claimed low back disorder and an injury incurred during active service. When presumed credible, such evidence and information raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disorder. Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510 (1992). Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to service connection for a low back disorder are met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence not having been submitted, the appeal to reopen the veteran's claims of entitlement to service connection for a psychiatric disorder and a left knee disorder is denied. New and material evidence has been received, the appeal to reopen a claim of entitlement to service connection for a low back disorder, is granted to that extent only. REMAND The Board's review of the claims file reveals that further development on the matter of entitlement to service connection for a low back disorder warranted. In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). As defined by statute and regulation, active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505 (West 2002); 38 C.F.R. § 3.6(c)(3) (2012). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106 (West 2002). In this case, the Veteran has asserted that he was hospitalized at Womack Army Hospital after an injuring to his back while lifting railroad ties during a period of ACDUTRA in 1979 or 1980. While the RO received a negative response in 1991 after requesting records from January 1980 to the present from Womack Army Hospital, review of the file showed that a request to obtain clinical records dated in 1979 was not sent directly to Womack Army Hospital at Fort Bragg for the asserted lumbar spine treatment during the June 1979 period of ACDUTRA. Thus, further efforts consistent with the VA's duty to assist are found to be necessary in order to obtain any additional in-service clinical records associated with the Veteran's asserted treatment at Womack Army Hospital in Fort Bragg, North Carolina in June 1979. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to VA's duty to assist, VA must provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A cumulative review of the record showed that the Veteran has consistently asserted that he injured his back when he lifted a heavy railroad tie while doing landscaping work during a period of ACDUTRA in 1979 or 1980. He further asserted that he continued to have low back pain and left leg symptoms since that incident. A July 1980 private treatment record showed complaints of back pain, with pain radiating to the back of the Veteran's legs, as well as numbness in both feet. The private physician noted a "history of old back injuries while lifting cross ties last year" and listed an assessment of low back spasm, with mild sciatica. Additional post-service VA and private treatment records dated from 1990 to 2008 showed findings of a present low back disorder, to include moderate narrowing of L4-5 and L5-S1 disc spaces, chronic low back problems secondary to old injury, failed low back syndrome, and advanced degenerative disc disease of the lumbar spine. In addition, in a June 2008 statement of record, a private chiropractor opined that the Veteran's current low back condition was the result of the incident incurred in 1979 or 1980, noting that the Veteran's current symptoms were consistent with that injury. Based on the foregoing discussion, the Veteran must be afforded a VA examination in order to determine whether the Veteran's low back disorder on appeal is related to his active duty service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for a low back disorder, to include any VA inpatient or outpatient treatment from July 1991 to the present, as well as any private treatment from D. C. M., M. D. (as referenced by Dr. V. S. L., in private treatment records dated in 1996 and 1999). The RO must also inquire as to whether the Veteran receives any disability benefits related to his low back disorder (as referenced by Dr. V. S. L. in a March 2002 private treatment record). Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain and associate with the claims file any available in-service clinical records from the Veteran's asserted low back treatment at Womack Army Hospital in June 1979. If, after making reasonable efforts to obtain this information the RO is unable to secure any of the identified records, the RO must notify the Veteran and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that the Veteran is ultimately responsible for providing information. The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded an appropriate VA examination to determine whether any low back disorder found is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed low back disorder is related to any period of the Veteran's active duty service, to include his verified periods of ACDUTRA in 1979, 1980, or 1981. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim on appeal, taking into consideration all relevant evidence associated with the evidence of record since the May 2010 statement of the case. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs