Citation Nr: 1319876 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-49 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1969 to February 1973. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issue of entitlement to service connection for a low back disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. An unappealed April 2006 rating decision denied service connection for a low back disability. 2. The evidence received since the April 2006 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. CONCLUSIONS OF LAW 1. The April 2006 rating decision denying the Veteran's claim of entitlement to service connection for a low back disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. New and material evidence has been received sufficient to reopen the claim of service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2012). A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2002); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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 (2012); Smith v. West, 12 Vet. App. 312 (1999) (if the evidence is new but not material, the inquiry ends and the claim cannot be reopened.) To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether to reopen a claim, the credibility of newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999); 38 U.S.C.A. § 5103A (West 2002). Regardless of what the RO has decided, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claim of entitlement to service connection for residuals of a low back disability was last finally denied in an April 2006 rating decision. The RO denied the claim because it found that the evidence did not support a finding that the Veteran had a low back disability, nor did the evidence indicate that there was a relationship between the Veteran's condition and his military service. The Veteran did not timely disagree with the decision, and the decision became final. The Board must first determine if new and material evidence has been submitted since the time of the April 2006 final decision. 38 U.S.C.A. § 5108 (West 2002). The evidence added to the record includes, among other evidence, medical records diagnosing the Veteran with a lumbar spine disability and a private opinion from Dr. R.L. relating a low back disability to service. That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly submitted evidence, the Veteran's previous claim for service connection was denied because the RO found no evidence of a current disability and no relationship between the Veteran's current disability and his military service. The new evidence is relevant to establishing such a relationship and the presence of a current disability. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, the new evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for a low back disability is reopened. ORDER The claim for service connection for a low back disability is reopened, and the appeal is allowed to that extent only. REMAND Having reopened the Veteran's claim for service connection for a low back disability, the Board must now determine whether the reopened claim may be granted on the merits. The Board finds that further development of the record is needed. Once VA provides an examination for a claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Daves v. Nicholson, 21 Vet. App. 46 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In evaluating the medical opinion evidence, the Board is to consider whether (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran argues that he suffers from a low back disability as a result of his service-connected right knee disability. In December 2008, Dr. R.L., a private physician, opined that the Veteran's low back condition was related to his service-connected knee disability. As a rationale for that opinion, Dr. R.L. stated that the Veteran's right knee disability required him to use a cane, which affected his gait. Dr. R.L. further noted that the Veteran reported having no significant back problems before having difficulty with his knee. However, that opinion is of limited probative value both because it relies heavily on the Veteran's self-reported symptoms without review of the Veteran's medical records, and because it does not address the possibility raised by the August 2012 examiner, that the Veteran's back condition is at least partially congenital in nature. The Veteran was provided with an examination of his low back disability in August 2012, at which time the examiner diagnosed the Veteran with degenerative disc and joint disease, sacral strain with a transitional segment at the lumbosacral spine, and lumbar levoscoliosis. The examiner was asked to opine whether the Veteran's low back disability was at least as likely as not the result of his service-connected right knee disability. In response to that request, the examiner offered a discussion without a clear conclusion. The examiner stated that the Veteran's current symptoms were at the level of the sacroiliac articulation where there was a transitional vertebra that articulated with the left sacrum. The examiner noted that the Veteran's transitional vertebra was a congenital condition. The examiner concluded that the Veteran's condition was aggravated beyond its natural progression by an in-service injury, but the examiner also, contrarily, found that the Veteran's low back disability was less likely than not due to or the result of the Veteran's service-connected right knee condition. The examiner did not opine whether the Veteran's right knee disability aggravated the Veteran's low back disability. Furthermore, the examiner did not address the relationship, if any, between the Veteran's service-connected right knee disability and his other diagnosed low back disabilities of degenerative disc disease throughout the lumbar spine and lumbar levoscoliosis. Additionally, it is unclear whether the examiner considered the low back disability to be a congenital defect or a congenital disease. There is a distinction between a congenital or developmental disease and a congenital defect for service connection purposes. Congenital diseases may be recognized as service-connected if the evidence shows aggravation in service within the meaning of VA regulations. 38 C.F.R. §§ 3.304, 3.306 (2012). Congenital or developmental defects are not service-connectable in their own right. 38 C.F.R. § 3.304 (2012). However, service connection may be granted for additional disability due to disease or injury superimposed upon a congenital defect during service. VAOPGCPREC 82-90 (1990), 56 Fed. Reg. 45711 (1990). Therefore, as to the Veteran's low back disabilities, the examiner must offer an opinion regarding: (i) whether any of the disabilities constitutes a congenital defect, and, if so, whether there is any additional disability due to a superimposed disease or injury during service; or (ii) whether any of the disabilities constitutes a congenital disease, and, if so, whether it was aggravated by his period of active service beyond the natural progression of the disorder. Furthermore, reviewing this examination report, the Board observes that while clinicians have noted the Veteran's transitional vertebra, other low back disabilities have been noted as well. For example, a January 2011 MRI examination indicated that, in addition to the transitional segmentation at L5-S1, the Veteran had degenerative changes throughout the lumbar spine with disc space narrowing at L1-L2 and L3-L4. An additional examination is required to clarify whether the Veteran's low back disabilities are wholly congenital in nature, to address whether the low back disabilities were aggravated by active duty service, and to address the relationship, if any, between the Veteran's diagnosed low back disabilities and his service-connected right knee disability. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with a medical doctor who has not previously examined him. The examiner must review the claims file and must note that review in the report. The examiner should provide responses to the following questions, and provide a rationale for each response. With respect to each of the Veteran's diagnosed low back disabilities (including degenerative changes throughout the lumbar spine, sacral strain with a transitional segment in the lumbosacral spine, lumbar levoscoliosis, and any other diagnoses indicated by the record): a) Address whether each low back disability is a congenital defect, a congenital disease, or neither. That finding should specifically be made for the previously diagnosed degenerative changes throughout the lumbar spine, sacral strain with a transitional segment in the lumbosacral spine, and lumbar levoscoliosis. b) For any low back disabilities that are a congenital defect, address whether there was additional disability superimposed upon that defect during service? c) For any low back disabilities that are a congenital disease, address whether it is at least as likely as not that the disability was aggravated (permanently increased in severity beyond the natural progress of the disorder) during active service. d) For any low back disabilities that are neither a congenital defect nor a congenital disease, address whether it is at least as likely as not (50 percent probability or greater) that any disability had an onset in service or is otherwise related to service. e) For any low back disabilities that are neither a congenital defect nor a congenital disease, address whether it is at least as likely as not (50 percent probability or greater) that any low back disability was caused by any service-connected disability. f) For any low back disabilities that are neither a congenital defect nor a congenital disease, address whether it is at least as likely as not (50 percent probability or greater) that any low back disability was aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability. 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs