Citation Nr: 1326622 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-26 491A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for bilateral spondylosis of L5 with spondylothesis (a.k.a., spondylolisthesis) of L5-S1 (a back disability). 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1980 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of service connection for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. In September 1982 rating decision, the RO continued the denial of service connection for a back disability. The Veteran did not file a timely appeal to this decision. 2. Evidence received since the September 1982 rating decision is new and material regarding the issue of service connection for a back disability, as it contains evidence not previously considered that has some tendency to establish the Veteran's back disability did not preexist active service and had onset in active service. CONCLUSION OF LAW 1. The September 1982 rating decision that denied service connection for a back disability became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the September 1982 rating decision is new and material to reopen service connection for a back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The Court elaborated that, in response to an application to reopen, VA is required to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided notice in March 2009 regarding the date and bases of the previous denial of his claim for service connection for a back disability. The notice informed the Veteran of the basis for the prior denial of the claim, that the back disability which existed prior to service was not aggravated by service. The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claim. Therefore, the March 2009 letter provided the notice required by the Kent decision. Subsequent to the notice, and prior to return of the case to the Board, the claim was readjudicated by the RO in a September 2011 statement of the case and an April 2012 supplemental statement of the case. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. Moreover, there can be no prejudice to the Veteran in proceeding with the issue to reopen the claim on appeal because of the favorable nature of the Board's decision to reopen service connection. (The reopened claim is addressed in the Remand section of this Board decision.) Reopening of Service Connection for a Back Disability In the current claim on appeal, the Veteran seeks to reopen service connection for a back disability. In a February 1982 rating decision, service connection for a back disability was denied on the basis that the Veteran had a congenital, preexisting back disability that was not aggravated by service. The Veteran submitted new and material evidence (x-rays of the spine taken prior to enlistment) within one year of the February 1982 rating decision. See 38 C.F.R. § 3.156(b) ("[n]ew and material evidence received prior to the expiration of the appeal period...will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period."); see also Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed.Cir.2011). In September 1982, the RO continued the denial of service connection for a back disability and informed the Veteran of its decision in a correspondence dated that same month. The RO again found that while the Veteran's back x-rays, which were taken prior to enlistment were misplaced, the Veteran had a congenital, preexisting back disability that was not aggravated by service. The Veteran did not initiate an appeal of the September 1982 determination, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c),(d)(3); 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). 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. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). For reference, the February 1982 rating decision denied service connection for a back disability on the basis that the Veteran had a congenital, preexisting back disability that was not aggravated by service. In the September 1982 final disallowance, which continued the February 1982 denial, the RO again determined that, while the Veteran had a preexisting back disability, it was not aggravated by service. The evidence considered included service treatment records, specifically, the Medical Board findings. Since the last final disallowance of the claim in September 1982, recent evidentiary submissions have included private and VA medical treatment records. Specifically, the Veteran underwent a VA examination of the spine in May 2009. An addendum medical opinion was provided in June 2009. The Veteran was afforded another VA examination in September 2011. All three VA opinions proffered negative nexus conclusions regarding the Veteran's back disability and service. In December 2012, the Veteran submitted a letter from a private treating physician, dated in November 2011, who stated that he treated the Veteran since his teens and had never been treated for a spinal deformity or spondylolysis prior to 1980 when the Veteran entered into service. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence to reopen service connection for a back disability has been received. The VA examinations and the November 2011 letter from the Veteran's private treating physician are new, in that they were not of record at the time of the prior final denial. They are not cumulative and redundant of evidence already of record, and are material, as they suggest that the Veteran's back disability did not exist prior to service and had onset in service. This evidence is material because it relates to the unestablished fact of nexus or relationship of current disability to service that is necessary to substantiate the claim. Specifically, this evidence addresses, in part, the basis for the prior denial; that is, that the back disability was a preexisting condition that was not aggravated by service. Indeed, the Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18 (2010). Given this standard, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for a back disability. At the time of the September 1982 denial, VA had only the Medical Board's opinion that the back disability existed prior to service and was not aggravated by service. The private, November 2011 medical opinion tends to establish that the Veteran's back disability did not exist prior to service, suggesting that the Veteran's back complaints had onset in service. For these reasons, the Board finds that the additional evidence received since the September 1982 decision is new and material to reopen service connection for a back disability. (The reopened claim is addressed in the Remand section below.) ORDER New and material evidence having been received, the appeal to reopen service connection for a back disability is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for a back disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the 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); 38 C.F.R. § 3.159(c), (d) (2012). As mentioned above, the Veteran was afforded VA examinations of his back in May 2009 (with a June 2009 addendum opinion) and September 2011. The Board finds the opinions proffered inadequate. In this case, the Veteran's enlistment examination noted a normal spine and musculoskeletal system and he is presumed sound upon entry into service. Significantly, none of the VA examiners used the appropriate evidentiary standard - clear and unmistakable evidence - when opining as to whether the back condition that was not noted at entrance into service 1) preexisted service and 2) was not aggravated by service. Both prongs are required to rebut the presumption of soundness. In this regard, once VA undertakes the effort to provide an examination in a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, an addendum medical opinion should appropriately address these questions upon remand. Accordingly, the issue of service connection for a back disability is REMANDED for the following action: 1. If possible, request that the physician who conducted the September 2011 VA examination review the claims file and provide an addendum medical opinion (another examination of the Veteran is not required). If the September 2011 examiner is not available, obtain the requested opinion from another physician. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to causation and aggravation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder should be made available to and reviewed by the examiner. The examiner should offer the following opinions: a) Is there clear and unmistakable evidence (i.e., obvious and manifest, which is a very high likelihood, much greater than a 50-50 degree of probability) that the Veteran had a back disability, to include bilateral spondylosis of L5 with spondylothesis of L5-S1, which pre-existed his entrance into military service in July 1980? b) If it is the examiner's opinion that there was a back disability which preexisted the Veteran's entrance into military service, the examiner should offer the following opinion: Is there clear and unmistakable evidence (as above, obvious and manifest) that the preexisting back disability was not aggravated during service? Note: The term "aggravated" in this context refers to a permanent worsening of the underlying condition during service, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. c) If it is the examiner's opinion that the Veteran's back disability did not preexist service, the examiner should offer the following opinion: Is it at least as likely as not (50 percent probability or greater) that any current disability of the back, to include bilateral spondylosis of L5 with spondylothesis of L5-S1, began during service or is otherwise etiologically linked to some incident of active duty, to include complaints of back pain in November 1980? In rendering these opinions, the examiner should specifically address the Medical Board's findings from service, the Veteran's private, treating physician's letter from November 2011, and the Veteran's own contentions. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. 2. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be 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 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs