Citation Nr: 1332947	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  10-24 470	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

Whether new and material evidence has been received to reopen a claim of service connection for thoracolumbar spine scoliosis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from August 10, 1967, to October 5, 1967.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a claim of service connection for thoracolumbar spine scoliosis.  In November 2012, a Travel Board hearing was held before the undersigned.  A transcript of the hearing is associated with the record.  At the hearing, the Veteran submitted additional evidence with a waiver of RO initial consideration.

The matter of service connection for thoracolumbar spine scoliosis 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 May 1968 rating decision denied the Veteran service connection for thoracolumbar spine scoliosis, based essentially on findings that such disability pre-existed and was not aggravated by his military service.  

2.  Evidence received since the May 1968 decision includes evidence that suggests that the pre-existing scoliosis was aggravated by military service; relates to an unestablished fact necessary to substantiate the claim of service connection for scoliosis; 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 thoracolumbar spine scoliosis, 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.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 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 that portion of the appellant's claim that is being addressed (i.e., reopens the claim), there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. 

At the hearing in November 2012, the undersigned advised the Veteran of what is needed to reopen the claim and what is needed to substantiate the underlying claim (in compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010)).

Legal Criteria, Factual Background, and Analysis

A May 1968 rating decision denied the Veteran's initial claim of service connection for scoliosis based essentially on findings that such disability pre-existed, and was not aggravated by, his military service.  He was notified of the May 1968 rating decision and of his appellate rights.  He did not appeal that decision (or submit additional evidence in the year following), and it became final based on the evidence then of record.

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 received.  38 U.S.C.A. § 5108.  "New" evidence means existing evidence not previously submitted to agency decisionmakers.  "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 it 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).

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in severity of the disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disability.  A lack of aggravation can be shown by establishing either that there was no increase in disability or that any increase in disability was due to the natural progression of the pre-existing condition.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The evidence of record in May 1968 included the Veteran's service treatment records, which show that a spine abnormality existed on his enlistment into service, that he was treated during service for back pain, and that pursuant to medical board proceedings. he was discharged from service for disability, thoracolumbar spine scoliosis, pre- existed, and was not aggravated by, service.  Evidence received subsequent to the May 1968 rating decision includes August 2009, January 2010, and June 2010 lay statements and private treatment records from August 1999 through October 2009.  Significantly, it includes a November 2012 opinion by a VA nurse indicating "[i]t is more likely than not that his service related physical activities aggravated his low back pain."  

The Board finds that the opinion by the VA nurse. is new and material evidence as it was not before agency decisionmakers at the time of the 1968 final decision and directly addresses an unestablished fact necessary to substantiate the claim of service connection for scoliosis.  Specifically, the claim was previously denied based essentially on a finding that the Veteran's scoliosis pre-existed, and was not aggravated by, his active service.  When taken at face value, as is required when determining solely whether to reopen a previously denied claim, the November 2012 opinion is competent evidence that relates the Veteran's back disability to his service and raises a reasonable possibility of substantiating the claim (particularly in light of the low threshold standard for reopening endorsed by the U. S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010)).   Thus, the additional evidence received is both new and material and is sufficient to reopen the claim of service connection for scoliosis.

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


ORDER

The appeal to reopen a claim of service connection for thoracolumbar spine scoliosis is granted.


REMAND

In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from adjudication of the claim.  The RO has not considered the Veteran's claim of service connection for thoracolumbar spine scoliosis de novo, and the Veteran has not waived his right to such RO consideration; the Board is unable to find that the Veteran would not be prejudiced by its considering the claim de novo in the first instance (without returning it to the RO for that purpose).  Accordingly, a remand for that purpose is necessary. 

In conjunction with the de novo readjudication of the Veteran's claim of service connection for thoracolumbar spine scoliosis, the RO must arrange for all further development indicated, to include (but not limited to) that ordered below.  Notably, reopening the claim triggers VA's duty to assist by securing a medical opinion, if necessary.   

To establish service connection based on a theory that a disability was aggravated by service, there must be a showing that during service the pre-existing disability increased in severity beyond the natural progression of the disease.  38 U.S.C.A. § 1153.  The Veteran's entrance examination report notes a spine abnormality, and a medical board found that his scoliosis existed prior to, and was not aggravated by, service.  The November 2012 opinion suggests otherwise.  These opinions must be reconciled.  

Accordingly, the case is REMANDED for the following:

1.   The RO should arrange for the Veteran to be examined by an orthopedic spine surgeon to secure a medical advisory opinion regarding a nexus between his current low back disability and his service.  The entire record must be reviewed by the examiner in conjunction with the examination.  Based on examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following:  

(a)  Based on the factual evidence of record, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's scoliosis increased in severity during his active duty service?  
(b)  If so, was such increase in disability beyond the natural progress of the disease?  

The examiner must explain the rationale for the opinions in detail, citing to the factual data that support the conclusions reached.

2.  The RO should then review the record and re-adjudicate (de novo) the claim of service connection for thoracolumbar spine scoliosis.  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 for further review.

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 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