Citation Nr: 1332683	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  07-31 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability, and if so, whether service connection is warranted.

2. Entitlement to service connection for a back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel



INTRODUCTION


The Veteran served on active duty from March 1960 to March 1964. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Newington, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for a back injury because the evidence submitted to reopen the claim was not new and material.  

The Veteran presented testimony before a Decision Review Officer (DRO) at the RO in November 2007; a transcript of that proceeding has been associated with the claims file. 

The claim was previously before the Board in April 2011, at which time it was remanded for development. 

In an August 2011 deferred rating decision, the RO determined that new and material had been submitted to reopen the claim; then, in a March 2012 supplemental statement of the case, the RO determined that service connection was not warranted on a de novo basis.  Regardless of RO action, however, the Board is required to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)), aff'd, 83 F.3d 1380 (Fed. Cir. 1996).

The issue of entitlement to service connection for a back (lumbar spine) disability 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 a back disability was denied on the merits by an unappealed rating decision in February 1977.  

2. Evidence received since the February 1977 rating decision is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability.


CONCLUSION OF LAW

New and material evidence has been presented to reopen the claim of entitlement to service connection for low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

The Board is granting the request to reopen the claim for service connection for a back disability.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

New and Material Evidence

The Veteran seeks service connection for a back disability.  Specifically, service treatment records confirm that the Veteran was assaulted/attacked while on active duty in October 1961, at which time he suffered a fracture of the left parietal bone, a concussion, and lacerations to the face.  He is currently service-connected residuals stemming from this incident, including anosmia, post-traumatic stress disorder, left parietal bone fracture, and lacerations over the left eye and right lip.  He presently contends that he was kicked repeatedly in the lower back area during the in-service assault and that he suffers from a current back disability as a result. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013).

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c).  The 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, the Secretary 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). 

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 

Also, Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Service connection for a back injury was originally denied in a February 1977 rating decision.  Evidence of record at the time of the February 1977 rating deicison included the following: service treatment records documenting in-service injury to the head (left parietal bone, cerebral concussion, and lacerations of the eye and lip), and a normal spine examination at separation in 1964; a January 1973 statement from the Veteran indicating that he injured his back in February 1972 while working in construction (a "slipped disc"); and a December 1973 VA examination showing no complaints, treatment, or diagnoses relating to the back.  The RO denied the claim on the basis that there was no evidence of a back injury either in the service treatment records, or in the private hospitalization reports concerning the in-service assault; rather, the RO stated that the Veteran's injuries were confined to the face and head.  The Veteran did not appeal this determination, and no additional evidence pertinent to the issue was physically associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie, 24 Vet. App. 242, 251-52.  Thus, the February 1977 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.302; 20.1105 (2013).  
In September 2006, the Veteran submitted a claim to reopen a claim of entitlement to service connection for a back injury.  The claim to reopen was denied in a July 2007 rating decision because the evidence submitted was not new and material.  The Veteran disagreed with that determination and the current appeal ensued.  

Evidence received after the February 1977 rating decision includes the Veteran's hearing testimony (DRO) and statements (primarily contained in medical records) regarding in-service injury to the low back and continuous low back pain since that time; private and VA treatment records documenting current lumbar spine diagnoses of degenerative disc disease, stenosis, and spondylosis of the lumbar spine; and several opinions from private physicians relating current low back symptomatology/diagnoses to the in-service assault, based on the Veteran's reports of being hit in the low back.  

In this case, and specifically considering the "low threshold" established by Shade, the Board finds that new and material evidence has been received.  This is so because the treatment records establish current low back disabilities, and the private nexus opinions could help the Veteran to substantiate his claim for service connection for a back disability.  The additional evidence must be presumed credible according to Justus, 3 Vet. App. at 513.  As a result, the evidence is considered both new and material and the claim for a back disability is reopened.


ORDER

New and material evidence having been received, the petition to reopen the claim for service connection for a back disability is granted, and to that extent only, the appeal is granted.

REMAND

The Board finds that additional development is warranted, which is explained below.

As an initial matter, when the VA is put on notice of the existence of Social Security Administration (SSA) disability records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also September 2011 VA Examination Report.  Moreover, the RO should obtain any additional ongoing treatment records pertinent to this claim. Id.  

"In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim." 38 C.F.R. § 3.159(c)(4)(i)  (2012). 

The Board notes that the Veteran was afforded a VA examination and opinion regarding his lumbar spine disability in September 2011, at which time the examiner opined that his low back disability (degenerative disc disease of the lumbar spine) was less likely than not related to service.  However, as pertinent medical records need to be associated with the Veteran's claims file, an addendum opinion that includes review of the additional treatment records should be obtained.  The duty to assist a veteran in obtaining and developing available facts and evidence includes obtaining a thorough and contemporaneous medical examination that considers the prior medical treatment records. Green v. Derwinski, 1 Vet. App. 121, 124 (1991).


Accordingly, the case is REMANDED for the following action:

1. Request all documents pertaining to an award of disability benefits from the SSA. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 

2. Ask the Veteran to identify any VA or non-VA healthcare provider(s) who treated him for his back disability since service.  After securing any necessary authorization from him, obtain all identified treatment records not already on file.  All reasonable attempts should be made to obtain such records and associate them with the claims file.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) .

3. Obtain copies of all additional VA treatment records concerning the Veteran's back since June 2010. 

4. Thereafter, return the claims file to the September 2011 VA examiner for an addendum opinion.  If the September 2011 VA examiner is not available, provide the claims file to an appropriate medical professional for an addendum opinion.  An examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion.  Request that the examiner review the entire claims file, including the Veteran's service treatment records, post-service treatment records, all private opinions of record, all lay statements concerning the Veteran's in-service injury, and the Veteran's testimony at his DRO hearing, and offer an opinion as to whether it is at least as likely as not that any diagnosed disability of the lumbar spine ( to include degenerative disc disease, stenosis, and spondylosis) began during the Veteran's military service or is otherwise is etiologically related such service, to include the documented in-service assault/injury.  

In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the Veteran is competent and credible to report on the observable symptom of his various disabilities in-service and since that time even when not documented in medical records. 

In providing answers to the above questions, the examiner should also comment on and/or take note of the Veteran's statements regarding injury to the low back at the time of the October 1961 in-service assault, and the post-service work-related injuries to the low back as reported by the Veteran in a January 1973 statement, and thereafter in VA treatment records (see September 2009 VA treatment note) and during the September 2011 VA examination.  

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.

5. Then claim on a de novo basis. If the claim continues to be denied, send the Veteran and his representative a supplemental statement of the case and give them time to respond.

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 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).


______________________________________________
WAYNE M. BRAEUER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs