Citation Nr: 1326060	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  10-12 223	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine strain with left sciatica (low back disorder). 

2. Entitlement to service connection for a lumbar spine strain with left sciatica (low back disorder). 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Rutkin, Joshua M.


INTRODUCTION

The Veteran served on active duty from October 1985 to June 1988. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

The Veteran testified at an October 2012 Travel Board hearing before the undersigned at the RO in San Antonio, Texas.  A hearing transcript is of record. 

At the hearing, the Veteran indicated that lack of exercise due to his low back disorder caused or aggravated his diabetes mellitus, type II.  This statement raises a service connection claim for diabetes, to include as secondary to his back disorder.  Because this claim has not yet been adjudicated by the RO as Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action.   See 38 C.F.R. § 19.9(b) (2012). 

The reopened claim of entitlement to service connection for a low back disorder 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. A June 1993 rating decision denied service connection for a back injury.

2. The Veteran was properly notified of the June 1993 rating decision denying his claim and of his appellate rights in a June 1993 letter, but did not appeal.  

3. Additional evidence received since the June 1993 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the service connection claim for a low back disorder. 


CONCLUSIONS OF LAW

1. The June 1993 rating decision, denying service connection for a back injury, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

2. New and material evidence has been submitted to reopen the service connection claim for a low back disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran petitions to reopen the previously denied claim of entitlement to service connection for a low back disorder.  Although the RO reopened the Veteran's claim, the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter, irrespective of the decision of the RO.  See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).   

Service connection for a low back disorder was initially denied in a June 1993 rating decision.  The Veteran was notified of this decision and his appellate rights in a June 1993 letter in accordance with 38 C.F.R. § 19.25 (2012).  He did not appeal the decision with the submission of a notice of disagreement (NOD).  See 38 C.F.R. §§ 20.200, 20.201, 20.302(a) (2012) (setting for content and timing requirements for submitting a NOD).  Moreover, new and material evidence was not submitted within one year of notice of the June 1993 decision.  See 38 C.F.R. § 3.156(b) (providing that if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period," and thus prevents an initial determination from becoming final).  Consequently, the decision became final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012).

Under 38 U.S.C.A. § 5108 (West 2002), VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim.  The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).

"New and material evidence" is defined as follows: "New evidence" means evidence not previously submitted to agency decision makers, and "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.  38 C.F.R. § 3.156(a).  In order to warrant reopening, the new evidence must not 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.  Id.  

In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence, but rather provides guidance as to whether submitted evidence meets the new and material requirements.  Id.  The Court noted that this standard is a "low threshold" for reopening, and explained as an example that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim to be reopened, then it raised a reasonable possibility of substantiating the claim.  Id.  The Court also explained that new and material evidence need only pertain to one unestablished element in order to reopen a claim, as long as such evidence, in light of evidence previously of record, raises a reasonable possibility of substantiating the claim.  Id. at 121.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, 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, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

For the chronic diseases specifically listed in section 3.309(a) of the regulations, including osteoarthritis, service connection may also be established by showing a chronicity in service or a continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," as a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"); see also 38 C.F.R. §§ 3.307, 3.309 (2012).  When a chronic disease as defined by VA in section 3.309(a) is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  

In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for osteoarthritis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307; 3.309(a).  This presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

Service connection for a low back disability was denied in the June 1993 rating decision because the RO found that a relationship was not shown between the Veteran's diagnosed low back strain and active service, including a reported injury from falling from a helicopter, and complaints of low back pain while on active duty. 

Since the June 1993 rating decision was issued, the Veteran submitted a June 2008 letter from his private treating physician, J. Bromely, MD, in which the physician wrote that he had reviewed the Veteran's service treatment records and concluded that it was "reasonable to assume" that the Veteran's current low back disorder was "likely a continuation of the original injury sustained while on active duty."

At the time of the June 1993 rating decision, a medical opinion in favor of a relationship to service was not of record.  Accordingly, the June 2008 letter from Dr. Bromely constitutes new and material evidence, as it relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. 

The petition to reopen this claim is granted.  See id.


ORDER

New and material evidence has been received to reopen the claim of service connection for a low back disorder; the appeal is granted to this extent only.  



REMAND

Although the Veteran has submitted a favorable medical opinion from his private treating physician, the opinion is not sufficient by itself to establish service connection, as it is not supported by any explanation.  Thus, further development is warranted.  See Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim); but see Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant).

The Veteran's testimony at the October 2012 Board hearing indicates that there may be outstanding records that would help support his claim. 

Accordingly, the case is REMANDED for the following actions:

1. Submit a request to the National Personnel Records Center (NPRC) for any clinical records held at Darnall Army Medical Center pertaining to the Veteran's treatment for a back injury in 1987. 

2. Verify the Veteran's complete periods of active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) with the Texas Army National Guard from 1988 to 1992 and forward all available service treatment and personnel records associated with such duty for incorporation into the claims file.  The VA Records Management Center (RMC) in St. Louis, Missouri, the Texas Army National Guard, the National Personnel Records Center (NPRC), the Texas Adjutant General's office, the Army's Human Resources Command (HRC) in St. Louis, Missouri, and/or other appropriate service entity should be contacted for this purpose.  The Veteran stated that his National Guard unit was affiliated with the Martindale Army Air Field in San Antonio, Texas.

3. If the Veteran's Texas Army National Guard records cannot be secured from any of the above records repositories, contact the Defense Finance and Accounting Service and request that through the use of payroll records they help identify the dates of the Veteran's service in ACDUTRA or INACDUTRA capacities.

4. After securing records associated with the Veteran's Army National Guard service, verify and document all periods of active duty for the Veteran, including periods of ACDUTRA or INACDUTRA.

5. Obtain any outstanding VA treatment records from the South Texas Veterans Healthcare System dating from December 2009 forward, and from any other identified VA medical facility where the Veteran was treated, and associate them with the claims file. 

6. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran 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