Citation Nr: 1327540	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  10-46 552	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Whether new and material evidence has been received with respect to a claim of service connection for a lumbar spine disorder.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1964 to April 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening service connection for a lumbar spine disorder.  The Veteran timely appealed that decision.

The issue of service connection for a lumbar spine disorder on a de novo basis 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.  Service connection for low back disability was denied in an unappealed September 1996 rating action.

2.  A rating decision of September 2005 continued the denial of service connection for low back disability; the Veteran did not perfect an appeal of that decision.

3.  The evidence received since the September 2005 rating decision tends to substantiate the claim of service connection for a lumbar spine disorder.


CONCLUSION OF LAW

New and material evidence has been received to reopen a claim of service connection for a lumbar spine disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

As the instant decision reopens the lumbar spine claim and remands for further development, no further discussion of VCAA compliance of that issue is required at this time.

Analysis

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012).  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the newly submitted evidence will be presumed credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

If new and material evidence is received during an applicable appeal period following a RO decision (one year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  Young v. Shinseki, 22 Vet. App. 461, 466 (2009); 38 C.F.R. §§ 3.156(b).

New evidence is defined as 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) (2012).

In this case, the Veteran initially filed for and was denied service connection for a low back disability in a September 1996 rating decision.  The Veteran filed to reopen that claim in February 2005.  The RO denied that claim to reopen a low back disability in a September 2005 rating decision on the basis that new and material evidence had not been received.  The Veteran timely appealed that decision in a May 2006 notice of disagreement.  The RO provided the Veteran with a statement of the case as to that issue in November 2006.  The Veteran never responded to that statement of the case and consequently his appeal was never completed.

The Veteran filed to again reopen service connection for a lumbar spine disorder in October 2009.  In the interim between the November 2006 statement of the case and the October 2009 claim to reopen, VA received numerous documents regarding the Veteran's ongoing appeal of his posttraumatic stress disorder (PTSD), skin, and respiratory claims which he eventually either withdrew or which the Board denied in October 2007.  Those documents, however, never implicated the Veteran's lumbar spine disorder.  

Following that Board decision, no new evidence was received until the Veteran submitted his October 2009 claim.  The RO appears to have reopened and denied the Veteran's lumbar spine disorder claim on the merits in the December 2009 rating decision, the subject of this appeal, as well as in a subsequent March 2010 rating decision.  

The Board finds that the September 2005 rating decision is final as the Veteran did not complete the appeal of that decision; he did not submit a timely substantive appeal, VA Form 9, or other document in lieu of a substantive appeal, VA Form 9, in response to the November 2006 statement of the case.  Accordingly, the appeal was not completed and the September 2005 rating decision is now final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).  Moreover, as no new and material evidence was received within the appeal period following the November 2006 statement of the case with respect to the lumbar spine disorder, the September 2005 rating decision became final.  See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010).  Finally, no new service department records have been associated with the claims file which were not already associated with the claims file at the time of the last rating decision.  See 38 C.F.R. § 3.156(c).  Therefore, new and material evidence is required to reopen the claim of service connection for a lumbar spine disorder.  See 38 U.S.C.A. § 5108 (West 2002); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156.

Since the last final rating decision, the Board notes that an October 2009 letter from the Veteran's treating VA physician was received, which stated that the Veteran had "low back pain with radiculopathy symptoms which are strictly due to his service in . . . Vietnam."

The Board finds that the above-referenced evidence constitutes new and material evidence.  It relates directly to whether the Veteran has a lumbar spine condition which began during or is otherwise related to his military service.  It raises a reasonable possibility of substantiating the claim.  As such, the requirements under 38 C.F.R. § 3.156(a) have been met and the claim is reopened.





ORDER

New and material evidence having been received, the claim of service connection for a lumbar spine disorder is reopened, and to that extent only is the appeal granted.


REMAND

Initially, the Board finds that the VCAA notice in the file is not sufficiently adequate at this time.  On remand, new VCAA notice should be provided to the Veteran.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Based on review of the claims file, the Board finds that a remand is necessary at this time in order to afford the Veteran a VA examination.  See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006).  

Ongoing private and VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran appropriate notice with respect to his claim of service connection for a lumbar spine disorder.  Such notice should be compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

2.  Obtain any relevant VA treatment records from the Walla Walla VA Medical Center, or any other VA medical facility that may have treated the Veteran, since June 2012 and associate those documents with the claims file.

3.  Ask the Veteran to identify any private treatment that he may have had for his lumbar spine disorder, which is not already of record.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

4.  Schedule the Veteran for a VA examination in order to determine the nature and etiology of any lumbar spine disorder.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary, including x-rays, should be conducted, and the results reported in the record.

For each lumbar spine disorder found, including any arthritic condition thereof, the examiner should indicate whether it more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service, to include the noted "recurrent back strain" in service.  

The examiner should specifically discuss the Veteran's lay evidence regarding his symptoms during and after service, including that he injured himself during physical training exercises, which is corroborated by other lay evidence of record.  The examiner should also discuss the Veteran's lay evidence regarding continuity of symptomatology during and after military service, and the 1975 lumbar spine x-ray evidence of spondylosis and disc herniation at the L5 spinal segment.  The medical reasons for accepting or rejecting the Veteran's report of in-service injury and continuity of symptoms thereafter should be set forth in detail.

The examiner should additionally discuss any other relevant and pertinent medical evidence in the record, to include the October 2009 VA treating physician's letter.  

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

5.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a lumbar spine disorder.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant 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).




______________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs