Citation Nr: 1311546 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-44 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of service connection for a back disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Paul, Minnesota. Despite any determination reached by the RO to reopen the Veteran's claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. With regard to the Veteran's application to reopen his claim of entitlement to service connection for a back disability, as will be discussed below, the Board has determined that new and material evidence has been received, and, therefore, the claim is reopened. The claim is reopened, and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. An RO decision dated in August 2007 denied entitlement to service connection for a back disability. The Veteran did not appeal that decision. 2. Evidence received since the August 2007 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim for service connection a back disability. CONCLUSIONS OF LAW 1. The August 2007 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for a back disability has been received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim of entitlement to service connection for a back disability is reopened and remanded, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Veteran seeks service connection for a back disability. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In an August 2007 rating decision, the RO denied the Veteran's claim for service connection for a back disability on the basis of the lack of evidence of a back disability in his service treatment records and based on the lack of any etiological link to service. The Veteran did not file an appeal, and the August 2007 rating decision became final. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means 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 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) (2012). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Of record at the time of the August 2007 rating decision were VA treatment records dated from November 2006 to August 2007 that established treatment for a back disability, as well as the Veteran's separation medical examination and report of medical history. Since the final August 2007 rating decision, evidence associated with the claims file includes, but is not limited to, a March 2010 VA examination report which includes a medical opinion on the etiology of the Veteran's back disability. This report is new, as it did not exist at the time of the final disallowance in 2007. It is material, as it relates to an unestablished fact necessary to substantiate the claim, namely a nexus statement. The Board acknowledges that the March 2010 VA examiner found that the Veteran's back disability was not caused by or the result of his active service. Nevertheless, it does not change the fact that the evidence is material, in that it must be considered by the Board; therefore, the claim is reopened. At this point, however, the Board will not adjudicate the reopened claim, as further development is necessary as explained below. ORDER As new and material evidence has been received regarding the Veteran's claim of service connection for a back disability, the Veteran's claim is reopened; to that extent only, the Veteran's claim is granted. REMAND The Veteran served on active duty in the Army from November 1982 to November 1986. He claims that he has a back disability that is related to service. Specifically, he asserts that he injured his back in 1985 while serving in Alaska lifting equipment. See Statement, June 2007; Form 21-526, June 2007. He asserts that he was taken to the Ft. Richardson Post Hospital for treatment, and then placed on profile. As an initial matter, the only service treatment records in the claims file (other than dental) are the Veteran's August 1986 separation examination report and report of medical history, which report of medical history reflects that the physician noted he had "recurrent back pain - has pain in lower back four to five times a week - 'gets from soft bed.'" The Board acknowledges that the RO prepared February 2010 and October 2010 formal findings of the unavailability for the remainder of the Veteran's service treatment records after having requested the records from NPRC in July 2007 but only receiving his separation medical records, and after requesting copies from the Veteran. The Board also acknowledges that the RO asked the Veteran to identify a 60-day timeframe for when he received treatment at the Ft. Richardson Hospital in 1985, but the Veteran did not provide such a timeframe. See, e.g., September 2010. Despite the Veteran's failure to reply, the Board finds that, nevertheless, a request should be made for any pertinent inpatient records from any hospital in Ft. Richardson, Alaska dated in 1985. In addition, a follow-up request should be made to the NPRC for the Veteran's complete service treatment records (which constitute archived records, as requested by the Veteran's representative in its brief). As noted above, the Veteran asserts that he was placed on profile due to his 1985 back injury in service. While the Board acknowledges that the Veteran has submitted a few personnel records of commendation, no request has been made by the RO for the Veteran's complete personnel file. Therefore, the Board also finds that a remand is necessary so that the RO may obtain a copy of the Veteran's complete personnel records. As noted above, the Veteran was provided with a VA examination relating to his claim on March 17, 2010. The VA examiner noted in his report that when questioned about the start of his symptoms, the Veteran stood up, left the room, and slammed the door with a raised voice demanding that the examiner be more respectful of him, and the examiner noted that the examination stopped at that point. The report does not, in fact, include any physical findings. The examiner did, however, provide a negative opinion as to the etiology of the Veteran's back disability. The Veteran wrote in a March 2011 statement that he was counseled about the incident by a VA employee, and that the examination was rescheduled and completed. There is no record, however, of any other VA examination in the claims file. Therefore, the Board finds that a remand is also necessary to obtain copies of all of the Veteran's VA treatment records dated since October 2010, as well as any outstanding VA examination report dated since March 17, 2010, and to associate them with the claims file. Importantly, the Board also finds that the opinion of record is not adequate, as it does not consider the Veteran's credible lay statements of the incident involving his back in service. Rather, it includes only a reference to back pain due to a soft bed, as noted at the Veteran's separation from service. Because the injury to the back was not considered, the opinion cannot be relied upon. Accordingly, the case is REMANDED for the following action: 1. Request from NPRC copies of all of the Veteran's service treatment records (a second request) and service personnel records. Also request copies of any in-patient hospital records dated in 1985 relating to treatment for the Veteran's back from the hospital at Ft. Richardson, Alaska. If any of these records are found to be unavailable, this should be specifically noted in the claims file. 2. Obtain copies of all of the Veteran's VA treatment records dated since October 2010, as well as any outstanding VA examination report dated since March 17, 2010, and associate them with the claims file. If any of these records are found to be unavailable, this should specifically be noted in the claims file. If the search for records reveals that the Veteran did not undergo an additional compensation examination in conjunction with his claim after the terminated March 17, 2010 examination, the Veteran must be scheduled for an examination with a physician to determine the nature and etiology of his back disability. 3. After the above development is completed to the extent possible, forward the Veteran's claims file to a physician with appropriate expertise to review the file in order to obtain an opinion as to whether it is at least as likely as not that the Veteran's current back disability is related to his service. Review of the whole file is required; however, attention is invited to the Veteran's credible lay statements describing a lifting injury to his back in service, in which he was placed on crutches and a medical profile. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to explain the reasons behind any opinion offered. 4. Then, readjudicate the matter(s) on appeal. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant 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 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). ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs