Citation Nr: 1331153	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  09-19 677	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbar spine.  

2.  Entitlement to service connection for degenerative disc disease of the lumbar spine.  

3.  Entitlement to service connection for a bilateral leg disability, including as secondary to service-connected pes planus or to a lumbar spine disability.   

4.  Entitlement to service connection for a left finger disability. 


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

A. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from October 1973 to November 1981.  The Veteran also had reserve service with periods of active duty for training (ACTDUTRA).  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

The Veteran requested a videoconference hearing before the Board in November 2009.  In a June 2010 letter, the Veteran was notified that he was scheduled for a video conference hearing before the Board in July 2010.  The Veteran did not report for the hearing.  Consequently, the Veteran's request for a hearing is deemed withdrawn.  38 C.F.R. § 20.704(d) (2012).  

The underlying issue of entitlement to service connection for degenerative disc disease of the lumbar spine and the issues of entitlement to service connection for a bilateral leg disability and a left finger disability are REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDINGS OF FACT

1.  Service connection for degenerative disc disease of the lumbar spine was last denied by a rating decision dated in November 2006.  The Veteran did not perfect an appeal of the decision.

2.  The evidence received since the November 2006 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for degenerative disc disease of the lumbar spine.


CONCLUSION OF LAW

New and material evidence sufficient to reopen a previously denied claim of service connection for degenerative disc disease of the lumbar spine has been received.  38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran originally submitted a claim of entitlement to service connection for a lower back disability in July 1982.  The claim was denied by the RO in a rating decision dated in August 1982.  Notice of the denial and notice of appellate rights were provided at that time.  The Veteran did not perfect an appeal of that decision and the RO decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).  The Veteran also submitted an application to reopen the claim for a lumbar spine disability in April 2003.  The claim was denied in rating decisions dated in September 2004, March 2005, and November 2006.  As a result, service connection for degenerative disc disease of the lumbar spine may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996).

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end.  Butler v. Brown, 9 Vet. App. 167 (1996).

Evidence is considered new if it was not of record at the time of the last final disallowance of the claims.  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 claims.  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 claims sought to be reopened, and must raise a reasonable possibility of substantiating the claims.  38 C.F.R. § 3.156(a) (2013).

In determining whether evidence is new and material, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  New and material evidence is not required as to each previously unproven element of a claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

At the time of the prior final denial, the evidence before VA consisted of some service medical records, service personnel records; private treatment reports from various providers including Vanderbilt University Medical Center, Neurosurgical Associates, Centennial Medical Center, Physicians and Surgeons, Rehability Center, Mid Tennessee Foot and Ankle Clinic, and Maury Regional Hospital; VA treatment reports; statements from the Veteran and fellow service members; and VA examination reports dated in December 1982, June 1995, October 1997, November 1997, December 1997, November 1998, December 1998, May 2003, and November 2003.

The service medical records available at that time did not show any complaints, findings, or treatment for a lumbar spine disability.   

The private treatment reports showed treatment for complaints of low back pain.    

The VA examination report dated in December 1982 showed degenerative arthritis of the dorsal spine with muscle spasm.    

The November 2003 VA examination shows a diagnosis of compression fractures of the thoracolumbar spine which was noted to be the most likely source of the Veteran's complaints of pain. 

The other VA examination reports are unrelated to the lumbar spine issue.

The RO last denied the claim in a November 2006 rating decision.  The basis of the denial of the claim of service connection for degenerative disc disease of the lumbar spine was that there was no objective evidence that the Veteran's back pain resulted from an injury during active duty service.  

The Veteran submitted a claim to reopen a claim for service connection for degenerative disc disease of the lumbar spine in November 2007.  Evidence associated with the claims file since the final prior denial consisted of additional service medical records; additional private treatment reports including a statement from J. Sun, M.D., dated in April 2008; statements from the Veteran; a VA Form 2173 dated in August 1988; and a VA examination report dated in June 2010.

Because the evidence received since the prior denial was not previously of record, and because it addresses specifically the issue before the Board, the Board finds that the new evidence is material.  38 C.F.R. § 3.156 (2013).  Since the final prior denial, the Veteran has submitted evidence that he was involved in a motor vehicle accident during a period of ACTDUTRA.  The Veteran has also submitted testimony that he injured his back in a motor vehicle accident in service and that his back has bothered him since service.  The Veteran is competent as a lay person to provide testimony regarding continuity of symptoms and self-treatment.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (where a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is medical in nature and is capable of lay observation).  Consequently, the Board concludes that the evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim.

Accordingly, the claim for service connection for degenerative disc disease of the lumbar spine is reopened.  To that extent only, the claim is allowed.  The claim for service connection for degenerative disc disease of the lumbar spine will be remanded for additional development.


ORDER

New and material evidence has been received to reopen the claim of service connection for degenerative disc disease of the lumbar spine.  To that extent only, the claim is allowed.


REMAND

A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims of service connection for degenerative disc disease of the lumbar spine, a bilateral leg disability, and a left finger disability can be reached.  

In initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  38 C.F.R. § 3.159(c) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In this case, there is evidence that the Veteran was involved in a motor vehicle accident during a period of ACTDUTRA and sustained injuries to his lumbar spine.  He has a current diagnosis of osteoarthritis of the lumbar spine.  Consequently, an examination is necessary in order to determine the etiology of the claimed lumbar spine disability.  

With regard to the bilateral leg disability, the Veteran claims that the disability is either secondary to a lumbar spine disability or was caused or aggravated by service-connected pes planus.  In order to determine the nature and etiology of the claimed bilateral leg disability, an examination is necessary.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

With regard to the left finger disability, a DD Form 2173 reflects that the Veteran sustained a cut to the ring finger of the left hand.  The Veteran claims that he has a scar and other symptomatology associated with the left finger injury during ACTDUTRA.  Consequently, a VA examination is necessary to determine the nature and etiology of the claimed left finger disability.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for the appropriate VA examination(s) to assess his claims of service connection for a lumbar spine disability, a bilateral leg disability, and a left finger disability.  The examiner must review the claims file and note that review in the report.  The clinician should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible.  In addition to the service medical records, the examiner should consider the Veteran's statements regarding his symptoms in service and his statements of continuous symptoms of back and finger problems since service.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  The examiner should specifically opine as to the following:

(a)  Is it is at least as likely as not (50 percent probability or greater) that any current lumbar spine disability (diagnosed as degenerative disc disease of the lumbar spine) is related to the Veteran's active service or a period of ACTDUTRA.  

(b)  Please provide a current diagnosis of the claimed bilateral leg disability and indicate whether it is at least as likely as not (50 percent probability or greater) that any diagnosed bilateral leg disability is caused or aggravated by a lumbar spine disability, or is related to active service or a period of ACDUTRA.  

(c)  Is it at least as likely as not (50 percent probability or greater) that any diagnosed bilateral leg disability is caused or aggravated by service-connected pes planus? 

(d)  Please provide a current diagnosis for the Veteran's claimed left finger disability and indicate whether it is at least as likely as not (50 percent probability or greater) that any current left finger disability, including scarring, is related to the Veteran's active service or a period of ACTDUTRA.  

2.  Then, readjudicate the issues on appeal.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board. 

The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs