Citation Nr: 1329722	
Decision Date: 09/17/13    Archive Date: 09/25/13

DOCKET NO.  11-16 937	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Megan C. Kral, Associate Counsel  

INTRODUCTION

The appellant is a Veteran who served on active duty from February 1999 to February 2003.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Salt Lake City, Utah Department of Veterans Affairs (VA) Regional Office (RO).  In August 2011, a videoconference hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.  

The issue of entitlement to service connection for a lumbar spine disability on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


FINDINGS OF FACT

1.  An unappealed December 2009 Board decision denied the Veteran's appeal seeking service connection for a lumbar spine disability essentially based on a finding that such disability was unrelated to an injury in service.  

2.  Evidence received since the December 2009 Board decision tends to relate the Veteran's low back disability to his service/injury therein; relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim.  


CONCLUSION OF LAW

New and material evidence has been received and the claim of service connection for a lumbar spine disability may be reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  However, inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless.

Analysis

An August 2003 rating decision denied the Veteran's original claim seeking service connection for a low back disability.  He appealed that decision to the Board, and a December 2009 Board decision upheld that denial.  The Veteran did not appeal the Board's denial to the U.S. Court of Appeals for Veterans Claims (Court), and the December 2009 Board decision is final.  See 38 U.S.C.A. § 7104.  

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. §  7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

"New" evidence means 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).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).
The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement.  The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010). 

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 

The pertinent evidence of record at the time of the December 2009 Board decision included the Veteran's service treatment records; July 2003, December 2004, and March 2007 VA examination reports; a July 2009 VA medical opinion; MRI reports from December 2007 and November 2008; VA treatment records from January 2007 through November 2008; and a transcript of the April 2009 hearing.  

Based on such evidence the December 2009 Board decision denied the Veteran's appeal seeking service connection for a lumbar spine disability, finding that such disability was unrelated to an injury the Veteran sustained in service.

The evidence received since the December 2009 Board decision includes VA treatment records from May 2010, testimony provided at an August 2011 videoconference hearing, and June 2010 and August 2011 medical opinions byD. Anderson, M.D.  

The August 2011 opinion of Dr. Anderson is new and indicates that the Veteran's chronic and recurrent problem with back pain is most likely from repetitive use in his occupation in the military, and that the annular tear and degenerative nature of his back pain is most likely caused as a result of his military service.  This evidence directly addresses the basis for the previous denial of the claim; raises a reasonable possibility of substantiating the claim; and meets the low threshold standard for reopening endorsed by the Court in Shade, 24 Vet. App. at 117-18.  Thus, the additional evidence received is both new and material, and warrants reopening of the claim.

De novo review of the claim is discussed in the remand below.  
 

ORDER

The appeal to reopen a claim of service connection for a lumbar spine disability is granted.


REMAND

The new evidence received includes an opinion byDr. Anderson.  It is unclear whether the Veteran received treatment from Dr. Anderson (or merely saw him to secure the opinion).  Records of any treatment the Veteran may have received for his lumbar spine disability may be pertinent evidence as to the Veteran's claim.  Therefore, any outstanding records of treatment the Veteran received for low back disability from Dr. Anderson must be sought.  

The record reflects the Veteran has continued to receive treatment for his lumbar spine disability at the Salt Lake City VA medical center (VAMC).  The most recent VA treatment records associated with the record are dated in November 2008.  Updated records of any VA treatment the Veteran received for his low back disability may also contain pertinent information. Are constructively of record, and must be secured.   

The reopening of the Veteran's claim has triggered the VA's duty to assist the Veteran by arranging for an examination to secure a medical nexus opinion.  Given the Veteran's accounts, the complaint of lumbar spine pain in service, and Dr. Anderson's opinion that the Veteran's current lumbar spine disability is related to his military service, the low threshold standard endorsed by the Court in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) [as to when an examination/medical opinion is necessary] is met, and development to secure a nexus opinion is necessary.

Accordingly, the case is REMANDED for the following action:

1.  The RO should ask the Veteran to identify all private providers of treatment and/or evaluation he has received for lumbar spine disability and to provide the authorizations necessary for VA to obtain outstanding records of such private evaluations and treatment (to include by D. Anderson, M.D.).  The RO should secure for the record copies of the complete clinical records of all evaluations and treatment from the sources identified (to include the complete records of D. Anderson, M.D. and updated VA treatment records).  If any records sought are unavailable, the reason for their unavailability must be noted in the record.  If a private provider does not respond to the RO's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received.

2. The RO should thereafter arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his lumbar spine disability.  The entire record must be reviewed by the examiner in conjunction with the examination.  Based on examination of the Veteran, and review of the record, the examiner must provide opinions that respond to the following:

a. Please identify (by medical diagnosis) each lumbar spine disability found; 

b. Please identify the most likely etiology for each lumbar spine disability entity diagnosed; specifically, is it at least as likely as not (a 50 percent or better probability), that such disability is related to the Veteran's service/complaints or injury noted therein?.

The examiner must explain the rationale for all opinions, with citation to supporting factual data and/or medical literature as deemed appropriate.  

3. The RO should then review the record and readjudicate the claim.  If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, 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 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).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs