Citation Nr: 1306136 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-21 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been presented to reopen a service connection claim for low back disability, and if so, whether service connection may be granted. 2. Entitlement to service connection for left foot drop, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a previously-denied claim for service connection for hemi-spondylolisthesis L4, right side, claimed as back injury. The Veteran testified before the undersigned Veteran Law Judge in December 2012. The Board notes that the RO reopened the Veteran's claim of entitlement to service connection for a low back disability and denied it on the merits in both the April 2010 statement of the case and March 2012 supplemental statement of the case. However, prior to consideration of the Veteran's claim on the merits, the Board is required to consider the issue of finality, and as such, the issue has been characterized as shown on the title page. See 38 U.S.C.A. §§ 5108, 7104(b); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The issue of service connection for left foot drop 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. Please note 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). FINDINGS OF FACT 1. A rating decision issued in February 1954 denied service connection for a back condition. Following receipt of notification of this determination, the Veteran did not timely perfect an appeal, and the decision became final. 2. The evidence received since the February 1954 rating decision is new and raises a possibility of substantiating the claim. 3. The evidence shows that the Veteran's currently diagnosed degenerative disc disease of the low back is related to military service. CONCLUSIONS OF LAW 1. The unappealed February 1954 rating decision that denied service connection for back condition is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The Veteran's degenerative disc disease of the low back was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for low back disability. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. I. Reopened Claim The Veteran seeks to reopen his previously denied claim of service connection for back disability. By way of background, a rating decision issued in February 1954 denied entitlement to service connection for a back condition. The Veteran did not file a notice of disagreement with the 1954 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims file within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the February 1954 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). Where, as here, a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). Moreover, where, as here, the prior final decision was an unappealed RO rating decision, the United States Court of Appeals for the Federal Circuit has held that "the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board." Jackson, supra. Thus, the Board must now consider whether new and material evidence has been submitted to reopen the previously denied claim. In making this determination, the Board must review all of the evidence submitted since the last final rating decision. 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court 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, supra; see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim; rather it need only be probative in regard to each element that was a specified basis for the last disallowance). Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). The prior evidence considered in the final February 1954 denial consisted of the Veteran's service treatment records (STRs), a statement from private physician Dr. C dated October 1953, buddy statements, lay statements from the Veteran, and two medical examination reports dated June 1953 and January 1954. The basis of the final denial was the absence of evidence of a current. Since the February 1954 rating decision, new evidence added to the record consists of private treatment records dated from August 1995 to September 2012, an STR dated June 1951, the Veteran's letters to his spouse dated June 1951 through January 1953, a medical opinion letter from private orthopedists Dr. H., lay statements from the Veteran, and hearing testimony. Notwithstanding the STR, all of this evidence is new because it was not previously considered by the RO. The new evidence includes private treatment records showing diagnoses of chronic multilevel degenerative disc disease (DDD), post-surgical changes, facet arthropathy, levoscoliosis, and multilevel central spinal canal and foraminal stenosis. Testimony and lay evidence also relate to a current disability. The absence of evidence of a current disability was the element of service connection upon which the prior denial was based. Accordingly, this evidence of a current back disability relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim. It is therefore material and sufficient to reopen the previously-denied claim. Shade, supra. The Board reopens the Veteran's claim of entitlement to service connection for a back disability for a de novo review on the merits. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The Board notes that the RO reopened the Veteran's claim in the April 2010 statement of the case and March 2012 supplemental statement of the case and denied it on the merits. The Board herein grants the Veteran's claim. Therefore, he is not prejudiced by the Board's actions herein. Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993). III. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was ' noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran' s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran' s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed low back disability is related to an in-service injury. The evidence of record shows that the Veteran has a current low back disability. Specifically, in August 1995 he was diagnosed by x-ray with chronic DDD at T12-L1, L1-2, L3-4, and L4-5, as well as post-surgical changes including laminectomy at L3, L4, and L5. A private treatment record dated September 2006 includes a thorough medical history. That history includes lumbosacral stenosis diagnosed by MRI in November 2004, with severe stenosis at L2-3 and L4-5, mild stenosis at L3-4 and L5-S1, and moderate degenerative joint disease (DJD) and facet hypertrophy at all levels. A September 2012 MRI of the lumbar spine showed postoperative change associated with posterior fusion at L3-4 as well as degenerative disc changes and facet arthropathy combining with levoscoliosis and resulting in multilevel central spinal canal and foraminal stenosis. The Board finds that the Veteran has a current low back disability, including DDD. The record also shows that the Veteran sustained injury to his low back in service. STRs show that in June 1951, the Veteran was seen and prescribed heat for a complaint of steady pain in the lumbosacral spine lasting three days. A few days later he was seen again because there had been no improvement, and was prescribed medication. In September 1951 he was seen for a paravertebral back sprain and was prescribed exercises. In October 1952 he was seen for "strained lumbosacral area 14 months ago," and was prescribed hot soaks. In January 1953 he was diagnosed with "traumatic lumbar spine, chronic" and referred to an orthopedist. His separation examination was conducted in January 1953 and includes a diagnosis of chronic low back pain. His report of medical history, completed at the same time, lists a chronic back ailment. The Board finds that the Veteran suffered an in-service injury to his back, namely lumbosacral strain with chronic low back pain. As a current disability and an in-service event have been established, the only remaining requirement is a causal nexus between the two. A letter from the Veteran's private treating orthopedist Dr. H dated October 2008 states that the physician reviewed the Veteran's STRs. Based on the STRs, the Veteran's lay statements and medical history, and his own treatment of the Veteran, Dr. H opined: "more likely than not this service injury is connected to his present condition in his back." In its capacity as a finder of fact, the Board finds the Veteran credible both as to his report of the in-service onset of his low back pain and of the chronicity of the symptoms since service. In this regard, the Veteran reported having no back problems before the June 1951 in-service injury. This is consistent with his pre-induction examination report, which is silent for any back complaint. After the June 1951 injury, he had chronic back problems throughout service, as reflected in his STRs, separation examination, buddy statements, and letters to his spouse. He has consistently and competently testified that his chronic back problems have continued since service, resulting in a 1971 surgery and current treatment. Given the Veteran's credible continuity of symptomatology and a medical opinion linking his current low back disability to service, the Board finds service connection for such disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for low back disability. Service connection for DDD of the low back is granted. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). A private treatment record dated September 2006 includes a thorough medical history. The surgical history section includes "status post three level L3-4-5 lumbar discectomy in July 1971, with left foot residual foot drop." The Veteran testified that he began experiencing left foot drop after the 1971 surgery. He has had numbness in his toes and intermittent pain. He contends that his current left foot drop is related to his service-connected back disability because it resulted from a surgery treating that condition. Although the report of the 1971 surgery is no longer available, in light of the Veteran competent and credible report of the surgery and the reference to that surgery in Dr. Thomas H. Hall's report, which was received by VA on October 4, 2007, the Board finds that he indeed had this procedure. Accordingly, the Board finds that a remand is a warranted to obtain a VA examination with medical opinion, following claims file review, as to whether the current left foot drop is related to service, including as secondary to service-connected back disability. Finally, the Veteran indicated at his hearing that he was being treated by Dr. Hontas for foot drop. However, the record contains only a 2008 letter, some 2006 imaging studies, and a September 2012 MRI study from Dr. Hontas, none of which address foot drop. The Veteran may have received additional treatment. Therefore, on remand, relevant VA treatment records from Dr. Hontas and any other identified provider should be obtained for consideration in the appeal. 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). 38 U.S.C.A. § 7107(a)(2) (West 2002). 1. Request that the Veteran identify any healthcare providers who have treated him for his left foot drop. After securing any necessary authorization from the Veteran, all identified treatment records should be obtained. Obtain all treatment records from Dr. Hontas which are relevant to left foot drop. In light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with 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. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge or were contemporaneously informed of the onset and/or chronicity of his left foot drop symptoms and any relationship to his service-connected back disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After completing the above, schedule the Veteran for a VA examination. The claims file should be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should state whether it is at least as likely as not that the Veteran's left foot drop: a) is related to service, or b) was caused, at least in part, by the Veteran's service-connected low back disability, or c) was aggravated, at least in part, by the Veteran's service-connected low back disability? The examiner should consider the Veteran's lay statements regarding the onset of his left foot symptoms. For the purpose of providing these impressions, the examiner must accept as true the Veteran's competent and credible account of having had back surgery in 1971, as reflect in Dr. Hall's report. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Then readjudicate the claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental SOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 or by 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). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs