Citation Nr: 1325322 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-09 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability. 2. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service from September 1982 to July 1983. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the Veteran's request to reopen his claim for service connection for lumbosacral strain. During the pendency of this appeal, jurisdiction of the claims folder was transferred to the RO in Atlanta, Georgia. The Veteran appealed the May 2007 rating decision and the Board denied the Veteran's claim for reopen in a September 2011 decision. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a Memorandum Decision issued in November 2012, the Court vacated the Board's decision and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. In July 2011, the Veteran testified before a Veterans Law Judge (VLJ) at the Central Office; a copy of the transcript has been associated with the record. The previously-assigned VLJ who conducted the July 2011 hearing has retired from the Board. In June 2013, the Board sent the Veteran a letter offering him another hearing before a different VLJ. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012) (the Board member who conducts the hearing will participate in making the final determination of the claim). The Veteran responded in June 2013 that he did not want another hearing, and asked the Board to consider the case on the evidence of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to service connection for a lumbosacral strain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a decision dated in January 2003, the RO denied the Veteran entitlement to service connection for a lumbosacral sprain. 2. The RO notified the Veteran of the decision and of his appellate rights with regard to the decision, but he did not file a timely notice of disagreement. 3. The evidence received since January 2003 is neither cumulative, nor redundant of the evidence previously of record and by itself or when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The January 2003 RO decision denying service connection for a lumbosacral strain is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. § 20.1100 (2003). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). A December 2006 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. The letter also notified the Veteran how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 490-491 (2006). The December 2006 letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims to reopen, VA must inform the claimant of the evidence and information necessary to reopen his claim and to establish entitlement to the underlying claim. Kent v. Nicholson, 20 Vet.App. 1, 9-10 (2006). In notifying the claimant of what evidence would be considered new and material, VA must examine the basis of the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in that case. Id. The December 2006 notified the Veteran of the bases of the last denial of his claim for service connection for a lumbar spine disability. VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains service treatment records and reports of post-service medical treatment. In regard to VA's duty to assist, it is clear that no further assistance is needed to substantiate the Veteran's request to reopen his previously denied claim for a lumbar spine disability. The underlying claim of service connection for a lumbar spine disability is being remanded for further notification and development for reasons explained in greater detail below. Thus, no further discussion of the VCAA with respect to the adjudication of the present appeal is necessary at this time. Reopening of the Claim The Veteran has petitioned to reopen previously denied claim of service connection for a lumbosacral strain. As part of his current petition to reopen his claim he has submitted evidence of a connection between his current lumbar spine disability and an in-service lumbar spine injury. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including arthritis, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran was initially denied service connection for a lumbosacral spine disability in a December 1987 rating decision which upon appeal was denied by the Board in February 1989. The issue was initially denied because while there was evidence of an in-service injury, it was determined to be acute and there was no evidence any current disability was related to his in-service lumbar spine injury. The Veteran applied to reopen his claim in September 1991 and was denied reopening in a December 1994 rating decision because evidence presented was neither new nor material because it was redundant of previous evidence and failed to show that any current lumbar spine disability was related to any in-service back injury. He again applied to reopen his claim in July 2002 and was again denied for lack of new and material evidence in a January 2003 rating decision. While the Veteran filed an notice of disagreement with the January 2003 rating decision, he did not file a VA-Form 9 and therefore there was no substantive appeal of the January 2003 rating decision. The last final denial was therefore the January 2003 rating decision. The Veteran's present petition to reopen his claim for a lumbar spine disability was received in November 2006. In support of his application to reopen his claim, the evidence considered at that time included evidence previously considered including medical certificates dated from November 1987 to December 1987, an MRI report dated August 2001, private treatment records dating from August 2001 to September 2001, and various statements from the Veteran. The RO again denied reopen for lack of new and material evidence in a May 2007 rating decision. The Veteran appealed the rating decision and the Board denied the Veteran's application to reopen his claim in September 2011. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the 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) (2012). The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. Id. at 118. The pertinent evidence that has been associated with the claims file since the RO's January 2003 rating decision, includes the evidence previously of record, duplicate November 1987 medical records, a December 2006 lumbar spine MRI report, a February 2007 request from a private doctor to review service treatment records to determine if the Veteran's current lumbar spine disability was related to any in-service injury, an August 2007 letter from his private treating physician, and hearing testimony from a July 2011 Central Office hearing. With the exception of the duplicate copies of November 1987 medical records, this evidence is new in that it is neither cumulative, nor redundant of the evidence previously of record. The Veteran testified at his June 2011 Central Office hearing that his in-service injury was not acute and transitory. He further testified, and his treating physician confirmed, that his current lumbar spine disability is located in the same part of the spine that his in-service lumbar spine injury occurred. These contentions had not been previously addressed. Given the low threshold established in Shade, this evidence is both new in that it is neither cumulative, nor redundant of the evidence previously of record and it is material in that it, when combined with VA assistance and considering other evidence of record, raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. 110, 117 (2010). Apart from the mere allegation of service connection previously considered, the Veteran has testified that he has had continuous symptoms of lumbar pain since active military service. The law holds that depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because the Veteran has presented competent evidence, and because the law requires that newly-submitted evidence is presumed credible for the limited purpose of determining its materiality, both new and material evidence has been presented to reopen the claim. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Having determined that new and material evidence has been received, the Board reopens the claim of entitlement to service connection for a lumbosacral strain. ORDER New and material evidence having been received, the claim of entitlement to service connection for a lumbosacral sprain is reopened. REMAND Prior to adjudicating the claim of entitlement to service connection for a lumbosacral sprain, additional development is necessary. See 38 C.F.R. § 19.9 (2012). Apart from the need for a medical examination, the Veteran testified at his July 2007 Central Office hearing that he had sought SSA benefits, but had been denied. There is no evidence of VA having made efforts to obtain the most recent SSA records. SSA records must be obtained before a decision on the claim can be made. Murincsak v. Derwinski, 2 Vet. App. 363 (1993); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain copies of records pertinent to the Veteran's recent SSA disability benefits and a copy of any determination awarding benefits. If the records are not available, make a notation to that effect in the claims folder. 2. After obtaining the above noted records, the RO/AMC must schedule the Veteran for a VA orthopedic examination by a physician with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's current lumbar spine disorder, in particular, whether the Veteran's post-service diagnosis of lumbar radiculopathy is due in whole or in part to active service. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the post-service records from the Veteran's treating physician, Dr. K.J.L., as well as his August 2007 statement concerning the Veteran's current lumbar spine disability. c. All indicated tests and studies must be performed. d. The examiner must take a complete history from the Veteran as to as to how long his low back pain has continued. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to whether the Veteran's lumbar spine disorder is due in whole or in part to his active service. f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. Thereafter, the issue of service connection for a lumbar spine disability, should be readjudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs