Citation Nr: 1304480 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-08 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether new and material evidence has been received sufficient to reopen a previously claim of entitlement to service connection for a lumbar spine disability; and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active duty service from August 1954 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which declined to reopen a previously claim of entitlement to service connection for a lumbar spine disorder. The Board also declined to reopen the Veteran's claim for failure to submit new and material evidence in a May 2010 decision. This decision also declined to reopen a claim of service connection for an acquired psychiatric disorder and denied service connection for the residuals of frostbite. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in April 2012, the Court issued a decision remanding the issue of whether new and material evidence had been submitted to reopen the claim of service connection for a lumbar spine disorder back to the Board. The Court affirmed the Board's denial of the remaining issues addressed in the May 2010 decision. New and Material Evidence To establish jurisdiction over this issue, the Board must first consider whether new and material evidence has been submitted to reopen the claim. See 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3rd 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, new and material evidence has been submitted to reopen the claim. Virtual VA The Board has also reviewed the Veteran's electronic Virtual VA file. No additional evidence has been added to the file since the issuance of the May 2012 Court decision. Advance on the Docket This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Remanded Issue The issue of entitlement to service connection for a lumbar spine 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, DC. FINDINGS OF FACT 1. An unappealed August 1998 Board decision denied a claim of entitlement to service connection for lumbar myositis with degenerative joint disease. 2. The additional evidence associated with the Veteran's VA claims file since the August 1998 Board decision is not cumulative or redundant of evidence previously considered and by itself, and when considered with previous evidence, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The August 1998 Board decision denying the Veteran's claim of entitlement to service connection for a lumbar spine disability is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has been presented sufficient to reopen the claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). By reopening the claim of entitlement to service connection for a lumbar spine condition, the Board is granting in full this aspect of the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. New and Material Evidence Claims Relevant Law and Regulations Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions that are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The Veteran's claim was denied by the Board in August 1998 because his service medical records revealed no complaints, symptomatology or findings of a lumbar spine disability, and, because there was no indication of any in-service history of a back injury. Therefore, for the evidence to be material in this case, it must address this unestablished fact. With that having been said, the Board finds that evidence submitted by the Veteran is both new and material, directly addressing one of the reasons for the denial of his claim in August 1998. The record reflects that the Veteran testified at a Decision Review Officer (DRO) hearing in June 2008. He testified that while serving in the military in Alaska, he injured his back in a fall while skiing. This statement directly addresses the Board's August 1998 finding that there was no indication of an in-service back injury. The above statement qualifies as new and material evidence sufficient to reopen the Veteran's claim. Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence). As already noted, the credibility of the evidence, but not its weight, is to be presumed when determining whether new and material evidence has been submitted. Justus, 3 Vet. App. at 513. Furthermore, the above statement, when viewed in light of the additional evidence of record, triggers VA's duty to assist. See Shade, 24 Vet. App. at 117 (explaining that the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion). A December 1988 record reflects complaints of low back pain for the past 30 years. Another December 1988 record notes back pain since 1960 following military service. This evidence, as well as the evidence of a presently diagnosed lumbar spine disability, suggests that an examination may be necessary in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Veteran's testimony (which is presumed credible for the purposes of reopening his claim) is deemed to be new and material evidence sufficient to reopen his claim of entitlement to service connection for a lumbar spine condition. ORDER The application to reopen the claim of entitlement to service connection for a lumbar spine disability is granted and, to that extent only, the appeal is granted. REMAND Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Initially, the Board notes that any outstanding VA treatment records, dated from January 2008 to the present, should be associated with the Veteran's claims file. The Board is aware of the holding in Bell v. Derwinski, 2 Vet. App. 611 (1992), wherein the Court held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. In addition, the record contains no evidence of treatment while the Veteran served in Alaska. According to the Veteran's April 1959 application for benefits (VA Form VB-8 526), the Veteran injured his knees while performing maneuvers with Company A, 1st Battalion, 71st Division, in Alaska between January and February 1956. He indicated that he was probably stationed at Fort Lewis, Washington at that time. As there are presently no records of service in Alaska, the Veteran should be contacted and asked to provide any additional information he can about his reported service in Alaska, including the exact dates he was there, all units he served with and any base at which he was stationed. All reasonable attempts should then be made to obtain service treatment records and personnel records regarding the Veteran's reported service in Alaska. As discussed in the previous section, the Veteran has provided testimony alleging that he suffered an injury to his back while skiing during his military service in Alaska. There are also records suggesting that the Veteran suffered from back pain since between 1958 and 1960, after his military service. However, a September 1988 record contradicts this finding, indicating that the Veteran had only complained of low back pain for the prior two years. Despite the above contradictions, the Board finds that there is sufficient evidence to at least warrant a VA examination in this case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In the present case, the Veteran suffers from a current back disability. He has also testified to suffering from an in-service injury, and there is some evidence at least suggesting back problems since military service. As such, the evidence indicates a possible nexus, and an examination is necessary at this time. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and ask him to provide as much information as possible about his reported service in Alaska, including the exact dates he was there, the unit(s) he served with and the name of any base or location at which he served. The Veteran should also be asked to provide VA with copies of any records he may have in his possession demonstrating service in Alaska or Fort Lewis, Washington. The AMC should then contact the Joint Services Records Research Center (JSRRC), the National Personnel Records Center (NPRC), or any other necessary agency or entity in an attempt to obtain records of treatment or service for the Veteran while in Alaska or at Fort Lewis, Washington. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain any outstanding VA treatment records for the Veteran dated from January 2008 to the present. Any response received should be memorialized in the Veteran's claims file. 3. Thereafter, the Veteran should be scheduled for a VA examination before an appropriate specialist regarding his lumbar spine condition. The Veteran's claims file and a copy of this remand must be reviewed by the VA examiner and the examination report should reflect that these items were in fact reviewed. The VA examiner is asked to perform all indicated tests and studies and identify the proper diagnosis(es) associated with the Veteran's lumbar spine. The VA examiner is then asked to opine as to whether it is at least as likely as not that any diagnosed lumbar spine disability manifested during, or as a result of, active military service. The Veteran's lay statements regarding in-service injury and chronic symptomatology must be considered and discussed when formulating an opinion, and a complete rationale must be provided for all opinions rendered. 4. The agency of original jurisdiction (AOJ) should then carefully review the medical opinion obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry. 5. The AOJ should then readjudicate the claim on appeal in light of all of the evidence of record. If the claim remains denied, the AOJ should provide the Veteran with a supplemental statement of the case and afford him a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs