Citation Nr: 1314894 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-28 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a lumbar spine disability, to include as secondary to service-connected arteriovascular insufficiency of both lower extremities. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from April 1959 to March 1961 and from October 1961 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In May 2011, the Board issued a decision which found that new and material evidence had not been submitted to reopen the Veteran's claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected arteriovascular insufficiency of both lower extremities. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court granted a Joint Motion for Remand, vacating the Board's decision and remanding the case to the Board. The Board's decision below finds that new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected arteriovascular insufficiency of both lower extremities. The reopened claim is remanded to the RO. FINDINGS OF FACT 1. In February 2002, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for a lumbar spine disability. Although notified of this decision that same month, the Veteran did not timely file an appeal. 2. In June 2007, the RO issued a rating decision which reopened the Veteran's claim seeking entitlement to service connection for a lumbar spine disability, and then denied the claim upon consideration of its merits. Although notified of this decision that same month, the Veteran did not timely file an appeal. 3. Evidence received since the RO's June 2007 rating decision raises a reasonable possibility of substantiating the Veteran's claim for a lumbar spine disability, to include as secondary to service-connected arteriovascular insufficiency of both lower extremities and therefore is new and material evidence. CONCLUSION OF LAW The criteria to reopen the claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected arteriovascular insufficiency of both lower extremities, have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 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 issue of entitlement to service connection for a lumbar spine disorder. 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). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); 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 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In February 2002, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for a lumbar spine disability. Although notified of this decision that same month, the Veteran did not timely file an appeal. In May 2006, the Veteran filed to reopen his claim seeking service connection for a lumbar spine disability, to include as secondary to his service-connected arteriovascular insufficiency of both lower extremities. In June 2007, the RO issued a rating decision which reopened, and then denied on the merits, the Veteran's claim of entitlement to service connection for a lumbar spine disability, to include as secondary to his service-connected arteriovascular insufficiency of both lower extremities. Notice of the RO's June 2007 rating decision was sent to the Veteran that same month. He did not file a timely notice of disagreement with this decision, and it is final. See 38 U.S.C.A. § 7105. In June 2008, the Veteran filed the claim to reopen the issue of entitlement to service connection for a lumbar spine disability. The Board must review all of the evidence submitted since the last final action to determine whether the Veteran's claim for service connection should be reopened. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence that was of record at the time of the June 2007 rating decision includes the Veteran's service treatment records and VA treatment records dated through May 2007. The service treatment records, including the report of the Veteran's separation examination in July 1979, are silent for any complaints, clinical findings, or diagnosis related to any lumbar spine disorder. VA clinic records dated in March 2001 indicated that the Veteran had a long history of bilateral lower extremity pains that had been worsening. The Veteran underwent a lumbar laminectomy at L4-5 in May 2001 for lumbar stenosis. Electromyography in October 2005 showed left-sided L5-S1 radiculopathy, and magnetic resonance imaging in February 2006 showed residuals of the previous laminectomy and foraminal narrowing and disc disease at L4/5. Service connection for vascular impairment of both lower extremities, manifest by pain and cramps in both legs, was established by a rating decision in February 1980. Evidence received since the RO's June 2007 rating decision includes VA treatment records, dated through April 2009; private treatment reports, dated through July 2008; a July 2008 opinion letter from Dr. Q., a private physician; the report of a VA examination of the Veteran's lumbar spine in September 2008; and the Veteran's own written statements. The Dr. Q.'s July 2008 opinion letter noted the Veteran's long history of low back and bilateral leg pain, which had worsened over the previous few months. Dr. Q. opined that these symptoms were secondary to Veteran's service-connected peripheral artery disease and his lumbar spine stenosis. Dr. Q. also opined that the Veteran's lumbar spinal stenosis may be related to the burden his lumbar spine was subjected to while in serving as an armor crewman during his twenty years of military service. This evidence is presumed credible, and raises a reasonable possibility of substantiating the Veteran's claim. See Justus v. Principi, 3 Vet. App. 510 (1992); Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that new evidence would raise a reasonable possibility of substantiating a claim if when considered with the old evidence it would at least trigger VA's duty to assist by providing a medical opinion). New and material evidence having been received, the claim for service connection for a lumbar spine disability, to include as secondary to the Veteran's service-connected arteriovascular insufficiency of both lower extremities, is reopened. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected arteriovascular insufficiency of both lower extremities, is reopened, and to this extent only, the appeal is granted. REMAND The Veteran is seeking service connection for a lumbar spine disability, to include as secondary to service-connected arteriovascular insufficiency of both lower extremities. The July 2008 opinion letter submitted by S.Q., M.D., fails to provide any basis for the stated opinion that the Veteran's worsening low back pain was due to his military service and/or is secondary to his service-connected peripheral artery disease. Moreover, it is unclear from a review of this opinion letter what, if any, documents or facts were available to Dr. Q. at the time he rendered this opinion. Under these circumstances, the RO should contact Dr. Q. and the Veteran and request that a complete rationale for the opinions given be provided, and that the materials relied upon in presenting these opinions be identified. See Savage v. Shinseki, 21 Vet.App. 303, 311 (2007). In its March 2013 brief, the Veteran's representative argued that the VA examiner in September 2008 failed to adequately address the issue of whether the Veteran's service-connected arteriovascular insufficiency, bilateral lower extremities, aggravated his lower spine disability. Specifically, the representative argued that the VA examiner failed to consider the additional strain placed on the Veteran's lumbar spine as a result of his altered gait. He also argued that the VA examiner failed to consider the increased sedentary lifestyle forced upon the Veteran due to his service-connected arteriovascular insufficiency, bilateral lower extremities. The representative noted that VA had requested a motorized wheelchair for Veteran, another indication of his increasing sedentary state. Finally, the representative argued that the VA examiner failed to consider the cumulative effect of wear and tear on the Veteran's lumbar spine as a result of his 20 year military history, including inservice duties as an armor crewman. Under these circumstances, the RO must schedule the Veteran for the appropriate examination to identify any current low back disability found, and provide an opinion as to whether the low back disorder was caused or aggravated by his military service; or whether the low back disorder has been caused or aggravated by his service-connected disabilities. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, including all available treatment records from Dr. S.Q. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must contact Dr. Q., to request that Dr. Q. provide a complete rationale for the opinions provided in the July 2008 letter. Dr. Q must also be requested to identify all of the materials/records relied upon in forming the opinions provided. 3. The Veteran must be afforded the appropriate VA examinations to determine whether any low back disorder found is related to his military service, or to a service connected disorder, to include the Veteran's service-connected arteriovascular insufficiency of the lower extremities. 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 the Veteran's active duty service. The examiner must also state whether any diagnosed low back disorder is due to or aggravated by any service-connected disorder, to include the Veteran's service-connected arteriovascular insufficiency of the lower extremities. 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. 4. The RO must notify the Veteran that it is his responsibility to report for the examination 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 the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have 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