Citation Nr: 1325033	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  10-44 792	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for a low back disability (claimed as low back strain with disc space narrowing).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to September 1982.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  A notice of disagreement was received in February 2010, a statement of the case was issued in September 2010, and a substantive appeal was received in November 2010.

The Veteran testified before a Board hearing in January 2011; a transcript of this hearing is of record.

The appellant submitted additional evidence to the Board to be considered in his claim and has waived his right to have the RO initially consider it.  38 C.F.R. § 20.1304(c).  

The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered.  At present there are no additional documents pertinent to this appeal in Virtual VA.

The issue of service connection for a low back disability under a merits analysis is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the appellant if further action on his part is required.


FINDINGS OF FACT

1.  An unappealed July 2005 Board decision denied the Veteran's claim of service connection for a low back disability.
2.  Certain evidence received since the July 2005 Board decision relates to an unestablished fact necessary to substantiate the claim of service connection.


CONCLUSION OF LAW

New and material evidence has been received to reopen the claim of service connection for a low back disability.  38 U.S.C.A. §§ 5103A, 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156, 3.159 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The record reflects that a claim of service connection for a low back disability was denied by the Board in July 2005 and that the Veteran did not appeal from that denial.  Accordingly, the July 2005 Board decision became final.  38 U.S.C.A. § 7104. 

The Veteran now seeks to reopen his claim.  A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).  

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 must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

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).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).  For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).

In its July 2005 decision, the Board denied the Veteran's claim based on a lack of nexus between the documented in-service incidents (motor vehicle accident and heavy detail) and his current low back disability.  The Veteran's lay statements regarding a continuity of symptomatology were noted, but, ultimately, the March 2005 VA medical examiner's opinion, which did not find a nexus, was determined to be more probative and the claim was denied.

Now, in connection with his current request to reopen, the Veteran has provided a nexus letter from his treating VA physician, Dr. A. I. I., including a reasoned opinion that ascribes the severity of the Veteran's current condition to his military service.  Under the low standard set forth by the Court in Shade, the Board finds that the nexus letter from Dr. A. I. I. constitutes new and material evidence.  The claim is reopened. 

There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations at this time.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  It is anticipated that any VCAA deficiencies will be remedied by the actions set forth in the following remand.  


ORDER

New and material evidence has been received to reopen the claim of service connection for a low back disability.  The appeal is granted to this extent, subject to the following remand. 


REMAND

The Board first notes that the claims file appears to be incomplete.  The record reflects that the Veteran is receiving disability benefits from the Social Security Administration (SSA) due to his low back injury, and the associated SSA records may be relevant to the current appeal.  There is no indication in the claims file that the RO has ever requested any of the Veteran's records in the possession of the SSA.  

VA must make efforts to obtain any relevant medical evidence and/or administrative decisions regarding any claim by the Veteran for SSA disability benefits.  On remand the RO must either obtain relevant records associated with any claim by the Veteran for SSA disability benefits, or, if the records do not exist or are not obtainable, obtain a negative reply from the SSA.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Baker, v. West, 11 Vet. App. 163, 169 (1998). 

In addition, the Board concludes that an additional VA examination is necessary to resolve the apparent conflict between the March 2005 VA medical examination report, in which the examiner concluded that the severity of the Veteran's disability was consistent with his age and work history, and the April 2011 letter from the Veteran's treating physician, in which the physician concluded that the current severity of the Veteran's disability was consistent with an injury during active service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following:

1.  The RO should request from the SSA all records related to the Veteran's claim for disability benefits, including all medical records and copies of all decisions or adjudications.  All negative responses should be fully documented in the claims file.

2.  Once the SSA records have been associated with the claims file, or it has been determined that either the records do not exist or that further efforts to obtain them would be futile, the RO should schedule the Veteran for an appropriate VA examination to determine the etiology of the claimed low back disability.  The claims file, to include this remand should be made available to the examiner in conjunction with the examination.  

The examiner should provide an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed low back disability is causally related to the Veteran's active service, to include the motor vehicle accident and the reported back pain associated with heavy lifting.  

In the event that an examination is scheduled but the Veteran fails to appear, then the claims file should be forwarded to an appropriate VA examiner for review and for a response to the question posed above. 

3.  After undertaking any additional actions deemed necessary, the RO should then review the record and readjudicate the claim.  If the full benefit sought on appeal remains denied, the RO must furnish to the appellant and his representative an appropriate supplemental statement of the case and afford them an opportunity to respond 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 benefit requested should be granted or denied.  The appellant 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 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).



______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs