Citation Nr: 1329551 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-16 889 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for residuals of a low back injury has been received. 2. Entitlement to service connection for residuals of a low back injury. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. Historically, in April 2006, the Board reopened a previously denied claim for service connection for residuals of a low back injury, but remanded the matter of service connection, on the merits, for further action. In July 2007, the Board denied the claim on a de novo basis This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision in which the RO determined that new and material evidence to reopen the claim had not been received. In November 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2012, and he filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals in April 2012. In June 2013, the Veteran testified during a Board video- conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. During the hearing, the Veteran confirmed that he is unrepresented. He also submitted duplicate copies of some evidence already on file as well as new evidence, and in writing waived initial RO consideration of that evidence. See 38 C.F.R. §§ 20.800. 20.1304 (2012). Regarding the characterization of the appeal, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen a claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable decision on the request to reopen-the Board has characterized this appeal as encompassing the matters set forth on the title page. The Board's decision to reopen the Veteran's claim for service connection for residuals of a low back injury is set forth below. The claim for service connection on the merits, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. Most recently, in July 2007, the Board denied service connection for residuals of a low back injury. 3. New evidence received since the July 2007 Board decision is relevant to the matter of service connection for residuals of a low back injury and, when considered together with evidence previously on file, establishes a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2007 decision in which the Board denied service connection for residuals of a low back injury is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1104 (2012). 2. Evidence received since the July 2007 Board decision is new and material; relates to an unestablished fact necessary to substantiate the claim, and is of sufficient probative value as to raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the request to reopen, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Historically, in April 2006, the Board reopened a previously denied claim for service connection for residuals of a low back injury, but remanded the matter of service connection, on the merits, for further action. Most recently, in July 2007, the Board denied the claim on a de novo basis The evidence of record at the time of the Board's June 2007 denial included then of record consisted of the Veteran's service treatment records (STRs), and post service VA and private medical records. As the Board acknowledged in that decision, the Veteran then had a low back disability, diagnosed as degenerative disc disease (DDD) and degenerative arthritis of the spine. While there is no specific mention of a trauma or back injury in service, the Board concluded that the Veteran sustained an in-service back injury based upon the cumulative evidence, including STRs which reflected complaints of and treatment for low back pain; the Veteran's December 1969 correspondence to his parents complaining of back pain; and the written lay testimony of family and friends who attest to their knowledge of the Veteran's back injury during service. In denying the claim, the Board found that there was not sufficient probative evidence of a nexus between current back disability and military service. In so finding, the Board noted that there were no significant treatment records for back problems between separation from service and the first, in 1977, of two post-service work-related injuries for each of which the Veteran claimed workers compensation benefits. The Board found in 2007 that post-service treating physicians had linked the Veteran's low back disability to these post-service injuries, except for Dr. W. who reported in May 2002 that it was possible that the current low back disability resulted from overuse or injury during service. However, the Board found that such a mere possibility was too speculative and, so, lacked probative value. Dr. E. N. K. provided copies of treatment records, beginning two days after the first post-service injury in September 1977 and continuing to 1992. That physician reported that, in May 1992 that the Veteran had existing lumbosacral disc disease and it had been felt, as early as September 1977, that overloading the spine would aggravate the Veteran's back problems. A September 16, 1977, treatment record (two days after the 1st of his two post-service injuries) yielded a diagnosis of acute low back strain on pre-existing lumbosacral disc disease. A September 25, 1977, report from Dr. E.N.K. stated that "[b]ecause of pre-existing lumbo- sacral disc disease as evidenced by his x-rays of September 16, 1977, ... future difficulties with his back" were anticipated. However, the Board found that Dr. E. N. K. had not related the pre-existing lumbosacral disc disease to military service. Furthermore, after a VA examination in October 2006, the examiner rendered a December 2006 opinion that, because there were no significant treatment records in the interim between service separation and the first of two work injuries in 1977, and based on review of the claim file, it was very unlikely that the current back disability was related to military service but, rather, was likely related to the post-service work injuries and age-related degenerative changes. Unless the Chairman orders reconsideration, or one of the exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100 . In this case, although the Veteran was notified of the Board's 2007 denial and of his appellate rights in attachments to the July 2007 Board decision, he took no further action with respect to denial, to include requesting reconsideration or initiating an an appeal to the United States Court of Appeals for Veterans Claims (Court). As such, the July 2007 Board decision denying service connection for residuals of a low back injury is final based on the evidence then of record. Id. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran sought to reopen his previously denied claim in June 2009. For petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not previously of record and is not duplicative or "merely cumulative" of other evidence then of record. After evidence is determined to be new, the next question is whether it is material. 38 U.S.C.A. § 5108 requires 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, 282-83 (1996). Here, the last final denial of the claim for service connection for residuals of a low back injury is the Board's July 2007 decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Veteran has submitted numerous statements and clinical records from private medical sources which are duplicates of evidence previous on file and, as such, these records are not new. However, pertinent additional evidence has been added to the claims file since the July 2007 Board decision. In a May 2009 statement, a service comrade, A. W., indicated that he had known the Veteran during service in Germany and recalled the Veteran having injured his back in December 1969 when he slipped on ice while loading ammunition of tanks. A. W. had even helped the Veteran to get up. The Veteran had been put on light duty for a couple of days. During the Board hearing, the Veteran testified that, while in Germany he had injured his low back when he slipped on some ice while unloading ammunition for tanks. Transcript, pages 4 and 5.. Also, the Veteran submitted a copy of a page which, according to his accompanying statement, was from the Encyclopedia of Sports Medicine. The relevant portions thereof which were highlighted by the Veteran indicate that lumbosacral intervertebral disc injuries are responsible for back pain in many people and there are numerous ways that a disc could be injured, including a fall or twisting motion. The central aspect of any lumbosacral disc injury was the natural aging process and disc degeneration. A July 2009 statement from Dr. R. W. who had treated the Veteran for years and after reviewing notes and X-ray reports was of the opinion that the Veteran's "injury- accident" during service "is the result of Degenerative- arthritis status" which he currently had. A January 2012 statement from Dr. W. H. G. reflects that the Veteran reported that the Veteran injured his lumbar spine in 1969 and had had persistent pain over the years. Imaging studies had revealed an intervertebral disc injury at L4-5 and L5-S1, with herniation and resultant degenerative changes. This injury had resulted in chronic pain and might required future invasive treatment. After reviewing the Veteran's medical records, it was the physician's opinion that the Veteran's current condition was at least as likely as not the result of his 1969 injury sustained during military service. The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for residuals of a low back injury. At the time of the 2007 Board decision there was evidence that the Veteran had current low back disability; however, was determined that the evidence weighed against a conclusion that the low back disability was related to service. Dr. R.W.'s 2009 statement does not strongly support reopening because it concluded that arthritis caused the Veteran's injury, when it is the opposite that is contended by the Veteran, i.e., the injury is the cause of arthritis and disc disease. However, the new evidence from Dr. W. H. G., in January 2012, suggests that the Veteran's in-service injury may have been more severe than the evidence previously indicated and that physician's medical opinion links current low back disability to military service. The Board finds that the foregoing evidence is "new" and is not duplicative or cumulative of evidence previously of record. Moreover, Dr. W. H. G.'s statement is "material" because it addresses a relationship between the Veteran's current low back disability and service (unestablished facts necessary to substantiate each claim). See, e.g., Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Further, when considered along with other evidence of record, the Board finds that the additional evidence raises a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for residuals of a low back injury are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Accordingly, the claim is reopened. However, de novo adjudication is deferred pending additional development of the claim. ORDER As new and material evidence to reopen the claim for service connection for residuals of a low back injury has been received, to this limited extent, the appeal is granted. REMAND As discussed above, the Board is reopening the claim for service connection for residuals of a low back injury; however, a review of the record reveals that further action on the claim for service connection, on the merits, is warranted. It is undisputed that the Veteran currently has low back disability. He asserts it was initially the result of an in-service low back injury, the residuals of which pre-dated his two post-service work-related back injuries. Specifically, he asserts in-service back injury, which was conceded by Board in the July 2007 decision, led to his developing arthritis and disc disease (although he also apparently concedes that it may have been made worse by his post-service work-related injuries). The Board points out that, as a layperson, he is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). In this case, as explained above, there are conflicting medical opinions as to the etiology of the Veteran's current low back disability. In the recent opinion of Dr. W. H. G., provided in January 2012, the physician indicated that he had reviewed the Veteran's medical records. However, because the Veteran had not been provided a copy of his claim file until May 2013, it is not clear what medical records Dr. W. H. G. reviewed prior to rendering his opinion. Therefore, while this opinion provides a basis for reopening the claim, the Board finds that it is not sufficient to resolve the claim for service connection, on the merits. Hence, the record remains inadequate in this regard. Under these circumstances, the Board finds that further medical opinion-based on full consideration of the Veteran's documented medical history, including in-service treatment for a back problem, as well as his lay assertions-and supported by clearly-stated rationale, is needed to resolve the claim for service connection. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the reopened claim for service connection. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, the RO should obtain any outstanding records of VA treatment, if any. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the service connection claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Contact the Veteran and inquire when and where he received any VA treatment for his low back disability. If he replies, the appropriate steps should be taken to obtain such records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA examination at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, and copies of any relevant Virtual VA records must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current low back disability(ies). Then, with respect to each such diagnosed disability, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service-in particular, to in- service injury. In rendering the requested opinion, the examiner should comment on the significance of the documented in- service treatment of the Veteran's low back, and specifically opine whether such treatment was as likely as not the first indicia of the Veteran's current low back disability-notwithstanding the fact that he did not thereafter received further treatment for a number of years and had two work-related back injuries. The examiner should also address the September 1977 record from Dr. K. that the Veteran had "pre-existing", i.e., existing prior to the first, in 1977, of two post-service work-related back injuries, even though Dr. K. did not specifically link such lumbosacral disc disease to the Veteran's military service. Thus, a specific opinion should be rendered as to whether it is as likely as not that the Veteran did have lumbosacral disc disease prior to the 1977, first of two post-service work- related back injuries and, if so, whether it is as likely as not that any such lumbosacral disc disease was related or due the in-service injury described by the Veteran. If it is found that the Veteran did have lumbosacral disc diseased which existed prior to both of the post-service work- related injuries but is t less likely than not related to military service or injury during military service, an opinion should be expressed identifying, if possible, the nonservice-related cause or etiology of any such lumbosacral disc disease. In rendering the requested opinions, the examiner must consider and discuss all pertinent in- and post-service pertinent objective evidence, as well as the Veteran's assertions that he experienced continuous low back pain from an injury during service, and the corroborating statements of family and service comrades attesting to his in- service back injury. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for residuals of a low back injury. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim for service connection, on the merits, in light of pertinent evidence and legal authority. 9. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response 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 benefits requested should be granted or denied. The Veteran 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 REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs