Citation Nr: 1320586 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 12-28 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether there is new and material evidence to reopen a claim of entitlement to service connection for a low back disorder and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from May 1976 to September 1977. This appeal to the Board of Veterans' Appeals (Board/BVA) is from January and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) determining there was not new and material evidence and, therefore, denying the Veteran's petition to reopen his claim of entitlement to service connection for a low back disorder. The Board, however, is reopening this claim because there is the required new and material evidence. But rather than immediately readjudicating this claim on its underlying merits, the Board instead is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT 1. This claim for service connection for a low back condition was previously considered and denied in a February 1978 rating decision. The Veteran did not appeal that decision, although appropriately notified of it, or submit any additional evidence concerning this claim within one year of receiving notification of that decision. 2. Additional evidence since received, however, is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The February 1978 rating decision denying this claim for service connection for a low back condition is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002& Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 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 and 3.326(a) (2012). Here, since the Board is reopening this claim on the basis of new and material evidence, there is no need to discuss whether the Veteran has received sufficient notice insofar as the specific reasons for the prior February 1978 denial of this claim because, even if for the sake of argument he has not, this ultimately is inconsequential and, therefore, at most nonprejudicial, i.e., harmless error since the Board is reopening this claim, regardless. 38 C.F.R. § 20.1102 (2012). See also Kent v. Nicholson, 20 Vet. App. 1 (2006), indicating this VCAA notice, if necessary, would have needed to apprise him of the specific reasons his claim was previously denied so he would have the opportunity to respond by providing evidence that would overcome the prior deficiencies. See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). Moreover, since, after reopening this claim, the Board is remanding it for further development, rather than immediately readjudicating it on its underlying merits, there is no need at this juncture to discuss whether there has been compliance with the remaining duty-to-notify-and-assist obligations. This instead is better determined once the additional development of this claim has been completed on remand. II. Reopening of this Claim on the Basis of New and Material Evidence Because this claim has been previously considered and denied, and the prior decision was not timely appealed, the Board has the jurisdictional responsibility to first determine whether there is new and material evidence since the earlier decision to reopen this claim, irrespective of what the RO determined concerning this, because this threshold preliminary determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92 (March 4, 1992). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant because further consideration of the claim is neither required nor permitted. Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). See, too, Butler v. Brown, 9 Vet. App. 167, 171 (1996). If, on the other hand, there is new and material evidence since the prior final and binding denial of this claim, then it must be reopened and the former disposition reconsidered. 38 U.S.C.A. § 5108. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108. According to VA regulation, "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 cannot be cumulative or 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). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when making a determination as to whether the evidence is new and material. It does not also apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or assertions beyond the competence of the person making them). The last final and binding denial of this claim was in February 1978, so that marks the starting point for determining whether there is new and material evidence since to reopen this claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final and binding disallowance of a claim on any basis, so irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). At the time of that February 1978 denial, the record before the RO, which was the adjudicating agency of original jurisdiction (AOJ), consisted of the Veteran's service treatment records (STRs) and the report of a November 1977 VA compensation examination. His STRs indicated he had sought treatment for low back pain in January and February 1977. But during his August 1977 military separation examination, he had reported being in "good health" and had made no further complaints of back pain. He had, however, again complained of low back pain during his November 1977 VA examination, which he had some 2 months after separating from service. Nevertheless, the pertinent diagnosis at the conclusion of that VA medical evaluation was "no clinical or radiological evidence of musculoskeletal disease." The RO resultantly denied the claim in February 1978 because the back condition the Veteran had claimed to have was not shown during his last examination - referring to the VA compensation examination he had had shortly after the conclusion of his service when, aside from his complaint of pain, there was no objective confirmation of any underlying disability, including to account for his pain. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.") In support of his current petition to reopen this claim, the evidence of record since that February 1978 rating decision includes four lay statements, private medical records from Dr. A. Perez-Toro, a January 2010 report of an accidental injury while in service, VA treatment records from 2000 - 2010, and the report of a VA compensation examination in September 2012. The private medical records from Dr. A. Perez-Toro reflect ongoing treatment for low back pain. He also notes the Veteran was treated for low back pain while in service, so for the very same symptom. And although he does not provide any comment on the etiology of the low back pain, in terms of whether it is the same type of pain the Veteran experienced in service, he does at least specify the source of the pain, indicating it is due to lumbago and muscle spasms of the paravertebral muscles of the lumbar spine. Hence, he provides an underlying diagnosis to account for the Veteran's complaints of low back pain. Moreover, he based his diagnosis on the results of X-ray imaging. The September 2012 VA compensation examination also resulted in relevant diagnoses, namely, of T12 compression fracture of uncertain age; T11-T12 degenerative changes with left paracentral protrusion mildly narrowing the ventral cord, cord signal intensity normal; and mild lumbar spine degenerative changes as described (referring to, as indicated in the report of that evaluation). Consequently, unlike when the RO initially considered and denied this claim in February 1978, there are now several pertinent diagnoses referable to the Veteran's low back, including, most notably, accounting for his ongoing complaints of low back pain. Thus, these additional records from Dr. A. Perez-Toro and the report of the VA compensation examination are new and material inasmuch as they address at least one of the specified bases for previously denying this claim. Subsequent to or around the time of the RO's consideration and denial of the petition to reopen this claim in January and April 2010, the Court decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court held 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., at 118. In other words, according to the post-Veterans Claims Assistance Act (VCAA) version of 38 C.F.R. § 3.156, the threshold for reopening a claim is relatively low, does not require a medical nexus opinion, and does not create a third element of new and material evidence, i.e., does not require the evidence be new, material, and raise a reasonable possibility of substantiating the claim. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers 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. If there is newly submitted evidence of current disability that, in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. Ordinarily, unless there is new and material evidence, there is no obligation to provide a VA compensation examination for a medical nexus opinion. 38 C.F.R. § 3.159(c)(4)(iii). Here, although the RO declined to reopen the claim in January and April 2010, it since has provided the Veteran the VA compensation examination in September 2012, so as if instead the claim was reopened, both to determine all appropriate diagnoses of his alleged disability and, as importantly, for a medical nexus opinion concerning the etiology of his current disability in terms of whether it is related or attributable to his military service and, in particular, to the complaints of low back pain he had during service in January and February 1977. Despite the fact that the VA examiner's medical nexus opinion is ultimately unfavorable to the claim, since it instead attributes the current low back disability to an intercurrent injury the Veteran has sustained since service, in May 2002 or thereabouts when he apparently fell off of his bicycle, the report of that evaluation and the records from Dr. Perez-Toro are nonetheless new and material to the claim since, as mentioned, they at least provide underlying diagnoses explaining why the Veteran continues to complain of low back pain. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (indicating new evidence may be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). Accordingly, the Board must conclude that new and material evidence has been submitted to reopen this previously denied and unappealed claim. 38 U.S.C.A. § 5108. To this extent only, this appeal is granted subject to the further development of this claim on remand. ORDER As there is new and material evidence, the petition to reopen this claim of entitlement to service connection for a low back disorder is granted, subject to the further development of this claim in the remand below. REMAND The Board finds that additional development is required before the Veteran's claim may be readjudicated on its underlying merits. Although the Board sincerely regrets the additional delay in deciding the claim that will result from this remand, it is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. Aside from having a Veteran undergo a VA examination for a medical opinion when needed to decided a claim (which already has occurred in September 2012), VA has a duty to make reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c),(d) (2012). The Veteran noted in a February 2010 lay statement, a July 2012 statement to his Congressional representative, and during his September 2012 VA examination that he was treated extensively at a VA facility in 1978 for his alleged back injury in service. One of the records in the file that since has been translated from Spanish into English indicates that, in March 2010, the Veteran spoke to someone at the local VA Office (presumably the RO) who explained to him that the medical records from the hospital at Ft. Hood, Texas, and others, including at the Veterans Hospital in San Juan, Puerto Rico, no longer exist and are not available. The only ones that exist are those of Dr. A. Ruiz, which supposedly already have been obtained and submitted, so are already in the claims file. 38 C.F.R. § 3.159(c)(1) and (c)(2) discuss the amount of effort VA must expend in trying to obtain relevant records, depending on whether they are in the custody of a Federal department or agency. The Veteran also has to be appropriately notified if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). Here, though, it is unclear exactly what records have been obtained versus those than cannot be. Additionally, the VA examiner who evaluated the Veteran in September 2012 cites a May 20, 2002 VA treatment record in his report detailing treatment the Veteran received after sustaining the intercurrent injury mentioned in a biking accident. But it does not appear these records are presently in the file, so they, too, need to be obtained and considered since apparently very relevant in terms of showing additional injury since service which the VA examiner cited as the source of the Veteran's current complaints and diagnoses, rather than any injury or complaints he earlier had while in service. Records generated by VA facilities that may impact the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of the claim, regardless of whether the records are physically in the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand the AMC or RO should obtain all outstanding VA treatment records. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain the Veteran's complete treatment records from the San Juan VA Medical Center (VAMC) dated since 1977, including especially those concerning all evaluation or treatment he has received for his low back or associated injury or disease. This includes, but is not limited to, the records concerning the treatment he received in May 2002 or thereabouts after sustaining the intercurrent injury when he fell off of his bicycle. The September 2012 VA compensation examiner made specific reference to that intercurrent injury. For any records of evaluation or treatment that no longer exist and, therefore, cannot be obtained, irrespective of whether concerning any evaluation or treatment the Veteran supposedly received at Ft. Hood, Texas, or at the VAMC in San Juan, or elsewhere, ensure sufficient efforts have been made to obtain the records, depending on who has custody of them, and appropriately notify the Veteran of the inability to obtain any identified records. 38 C.F.R. § 3.159(e)(1). It therefore is essential the RO/AMC determine who supposedly has custody of the records in question, in other words whether a private facility versus a Federal department of agency, and based on this ensure there has been compliance with 38 C.F.R. § 3.159(c)(1) and (c)(2) before concluding that further efforts to obtain the records would be futile. Prepare a memorandum on the unavailability of all identified records that could not be obtained discussing the efforts that were made to obtain them, albeit unsuccessful. 2. Then readjudicate this claim for service connection for a low back disorder on its underlying merits in light of this and all other additional evidence obtained. If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KETIH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs