Citation Nr: 1316729 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-23 698 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether a previously denied claim for service connection for back disability (claimed as residuals of a back injury) should be reconsidered. 2. Entitlement to service connection for back disability (characterized as degenerative joint disease of the lumbar spine). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from September 1944 to May 1946, with prior, unverified service from October 1942 to September 1944. A claim for service connection for a back injury was previously denied by the RO in July 1946. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision in which the RO, inter alia, denied service connection for claimed low back pain. In October 2009, the Veteran filed a notice of disagreement (NOD) as to the denial of his claim. A statement of the case (SOC) was issued in May 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2010. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A January 2013 letter informed him that his hearing was scheduled for February 2013. However, in correspondence received in February 2013, the Veteran's representative indicated that the Veteran wished to cancel the scheduled hearing because the Veteran had recently experienced a stroke. The Veteran's representative did not request that the hearing be rescheduled; instead, the representative submitted a written statement in support of the claim on appeal. In April 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In characterizing the appeal, the Board has considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). In that decision, the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). In this case, while the Veteran's original claim was styled as service connection for residuals of a back injury, the Veteran has identified his current disability as chronic low back pain and his disability has been medically diagnosed as degenerative joint disease of the lumbar spine. Nevertheless, review of the record reveals the Veteran has asserted that his current disability was incurred a result of a back injury in service and he has lodged the same complaints in connection with the original claim and the claim currently on appeal. As such, any diagnosis pertaining to the lumbar spine made since the prior denial does not constitute a different disability. In this context, the Veteran's lumbar spine claim was originally characterized as a request to reopen an unappealed denial of a claim of service connection for chronic low back pain. However, as explained above, the issue has been recharacterized to reflect the medical diagnosis to which the Veteran's complaints of low back pain have been attributed. Moreover, as discussed in more detail below, given the nature of the additional evidence received, and because the evidence provides a basis for reconsidering the claim, the Board has recharacterized the appeal as involving both matters set forth on the title page. The Board's decision granting reconsideration of the claim for back disability is set forth below. The claim for service connection for back disability, on the merits, is addressed in the remand following the order; this matter is being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. In a July 1946 rating decision, the RO denied the Veteran's claim for service connection for back disability (then claimed as residuals of a back injury); although the Veteran submitted a statement expressing disagreement with the RO's denial, he did not perfect his appeal by filing a timely substantive appeal. 3. New evidence was associated with the claims file during the one-year appeal period following the July 1946 denial of the claim for service connection for back disability claimed as residuals of a back injury included relevant official service department records not previously considered. CONCLUSIONS OF LAW 1. The July 1946 rating decision in which the RO denied service connection for claimed residuals of a back injury is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. As evidence received since the RO's unappealed July 1946 denial includes service department records not previously considered, the criteria for reconsideration of the claim for service connection for claimed residuals of a back injury are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the Board's decision to grant reconsideration of the Veteran's claim for service connection for residuals of a back injury, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. II. Petition to Reopen/Request for Reconsideration Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a July 1946 rating decision, the RO denied the Veteran's claim for service connection for residuals of a back injury. The evidence of record at the time consisted of the Veteran's application for VA compensation benefits, a separation qualification record, and a few of the Veteran's service treatment records (STRs), including only his October 1942 induction examination report, a September 1944 treatment record, and his March 1946 separation examination report. The Veteran was notified of the RO's denial in a letter dated in July 1946. Following the July 1946 rating decision, the Veteran submitted a written statement which indicated that he wished to appeal the RO's decision; however, instead of issuing an SOC, the RO requested that the Veteran submit VA Form P-9 (apparently, the predecessor to current VA Form 9). See August 1946 letter. The Veteran did not submit a VA Form P-9 and, thus, the issue was not perfected for appeal. Accordingly, the August 1946 rating decision became final based on the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as 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 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). Significantly, where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). In this case, review of the record reveals that additional, relevant STRs were associated with the claims file after the issuance of the July 1946 rating decision. Indeed, the record reflects that STRs were received by the RO on August 8, 1946, and December 3, 1951, which showed the Veteran received treatment on several occasions for back problems and was diagnosed with myositis during service in 1945. Regardless of whether this evidence will substantiate the Veteran's claim, the Board notes that these records were in existence and obtainable at the time of the prior rating decision, as they were provided by the service department. The Board also notes that the Veteran had provided sufficient information for VA to obtain all of his STRs. 38 C.F.R. § 3.156(c). Accordingly, pursuant to 38 C.F.R. § 3.156(c), the Board finds that the additional STRs received following the July 1946 rating decision require reconsideration of the service connection claim. As such, analysis of the claim in light of 38 C.F.R. § 3.156(a) is unnecessary. [The Board further notes, parenthetically, that if the reconsidered claim is ultimately granted all or in part on the basis of the additional service records received, the effective date of such award is the date entitlement arose, or the date of receipt of the previously denied claim, whichever is later. See 38 C.F.R. § 3.156(c)(iii)(3).]. ORDER The request to reconsider the claim for service connection for back disability (previously claimed as residuals of a back injury) is granted. REMAND A review of the record reveals that additional development of the claim for service connection, on the merits, is warranted. In May 2008, the Veteran was afforded a VA spine examination obtain an opinion as to whether determine if his current lumbar spine disability is medically related to his military service. After examining the Veteran, the VA examiner rendered a diagnosis of degenerative joint disease (DJD) of the lumbar spine, which he noted was manifested by low back pain. The VA examiner opined, however, that it is less likely as not that the Veteran's current low back pain is related to the back pain he suffered during service. In making this determination, the VA examiner noted that the STRs document a "low back pain event" and that the Veteran reported having intermittent and episodic low back pain and spasms; however, the VA examiner also noted there was no evidence of contiguity or continuity. The opinion expressed in the May 2008 VA examination is considered competent medical evidence; however, the Board finds that the conclusion and rationale provided by the VA examiner is inadequate because it does not appear that the examiner fully considered all relevant evidence and facts in this case. As noted, the VA examiner stated that he reviewed the STRs, which he noted document a "low back pain event." However, the STRs contain multiple records which document treatment for back problems during service. Indeed, the STRs show the Veteran sought treatment for pain and spasms in the left side of his low back on multiple occasions during service and was diagnosed with myositis in March 1945. In addition, the Veteran's March 1946 separation examination report reflects that he reported having trouble with his left back at times, although there was no abnormality noted on examination. Because the May 2008 VA examiner did not explicitly consider and discuss STRs which document treatment for back problems during service, the diagnosis of myositis in March 1945, and the report of occasional back problems at separation from service, the Board finds the May 2008 VA opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (in evaluating the probative value of a medical opinion, the guiding factors include whether the opinion is based upon sufficient facts and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion). Moreover, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds that further examination and opinion-based on full consideration of the Veteran's documented medical history and assertions, is needed to resolve the claim for service connection for back disability, on the merits. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the Veteran to undergo a new VA spine examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the physician is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal in light of all pertinent evidence and legal authority. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After records and/or responses received have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for him to undergo a VA spine examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant records on Virtual VA, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current back disability (ies), to include degenerative joint disease of the lumbar spine. Then, with respect to each such diagnosed disability, the examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability had its onset in or is otherwise medically related to the Veteran's active military service. In rendering this opinion, the examiner should specifically acknowledge and comment on the evidence of record, including specifically the service treatment records which document treatment for back problems, including myositis, during service and show the Veteran complained of occasional left back pain at separation from service. The physician should set forth all examination findings (if any), along with complete rationale for the opinion provided, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal, on a de novo basis, in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs