Citation Nr: 1337717 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-19 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to January 1993 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a hearing before a Decision Review Officer (DRO) in January 2010 and at a Travel Board hearing in April 2012. The issue of entitlement to service connection for a low back disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Service connection for a low back disability was last denied by a November 2002 rating decision. The Veteran did not appeal that denial. 2. The evidence received since the November 2002 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. CONCLUSION OF LAW New and material evidence sufficient to reopen a previously denied claim of service connection for a low back disability has been received. 38 U.S.C.A. §§ 1110, 1131, 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 low back disability in July 2000. The claim was denied by the RO in a September 2000 rating decision. Notice of the denial and notice of appellate rights were provided in October 2000. The RO subsequently reconsidered the decision and again denied the claim in an October 2000 rating decision. Notice of the denial and notice of appellate rights were provided in November 2000. The Veteran did not appeal either decision and the November 2000 RO decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). The RO subsequently reconsidered the decision in a November 2002 rating decision and denied the claim. Notice of the denial and notice of appellate rights were provided in November 2002. The Veteran did not appeal that decision and the RO decision is the most recent final denial. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). As a result, service connection for a low back disability may now be considered on the merits only if new and material evidence has been received since the time of the prior final 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 claim and adjudicate the claim 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 new and material 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 claim. 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) (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 consisted of the Veteran's service medical records; the Veteran's service personnel records; private treatment reports from Pain Management and Treatment Center, Westside Healthcare, Nova Care, and St. Mary's Hospital; a January 2002 statement from the Veteran; and a VA examination report dated in August 2002. The service medical and service personnel records show that the Veteran sustained an injury to her back during a period of training during in the National Guard in June 1997. The records show that the Veteran twisted her back several times while walking on uneven ground after erecting a tent. A June 1997 entry shows a diagnosis of acute musculoskeletal strain superimposed on chronic low back pain. A Line of Duty investigation reveals that the Veteran sustained back strain in the line of duty. Private treatment reports from Pain Management and Treatment Center show treatment for low back pain with bilateral lower extremity radiculopathy beginning in July 2000. She was assessed with lower back pain with bilateral lower extremity radiculopathy secondary to degenerative disc disease. The private treatment reports from Westside Healthcare show reports of low back pain related to an injury in the Army National Guard in October 2001. The private treatment reports from Nova Care and St. Mary's Hospital are unrelated to treatment for a low back disability. The statement from the Veteran indicates that she sustained a back injury during service in June 1997 and has had treatment for the same since service. She also indicated that her back symptoms impacted her activities of daily living. The August 2002 VA examination report shows that the Veteran was diagnosed with moderate degenerative disc disease in the lower spine. The examiner concluded that the Veteran's lumbar spine disability was not related to the episode of muscular strain that she had in service. The examiner noted that the strain in service was a limited episode that completely resolved with little residuals and no evidence of treatment within one year of discharge from service. The RO denied the claim in a November 2002 rating decision. The basis of the denial of the claim was that the low back disability was neither incurred in nor caused by service. The Veteran submitted the current application to reopen her claim for service connection for a low back disability in June 2008. Evidence associated with the claims file since the final prior denial consists of additional private treatment records from Pain Management and Treatment Center; statements from the Veteran and her daughter; VA examination reports dated in October 2009 and April 2010; and testimony from the Veteran at a January 2010 hearing before a DRO and at an April 2012 Travel Board hearing. 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 testified that she sustained an injury to her back in service and has had symptoms of back pain since her injury in 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). Additionally, the evidence shows treatment for and a diagnosis related to the claimed low back disability. 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 of service connection for a low back disability is reopened. The claim will be remanded for additional development. ORDER The claim of entitlement to service connection for a low back disability is reopened. To that extent only, the appeal is granted. REMAND A remand is necessary in order to properly adjudicate the Veteran's claim. Although the Veteran was provided a VA examination in April 2010, it does not appear that the examiner considered the Veteran's lay statements of a report of a continuity of symptomatology of low back pain since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). In order to make an accurate assessment of the Veteran's claim of entitlement to service connection for a low back disability, it is necessary to have a medical opinion discussing whether any current back disability is related to the injury sustained during a period of training based upon a thorough review of the record, history provided by the Veteran, comprehensive examination of the Veteran, and adequate rationale. Therefore, the Board finds that another examination and opinion is necessary in order to fairly decide the merits of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess her claim of service connection for a low back 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 her back injury and symptoms in service and her statements of continuous symptoms of back problems since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current low back disability (diagnosed as degenerative disc disease of the lumbar spine) is related to the Veteran's active service or a period of training in the National Guard when she was seen for back strain. The examiner should reconcile the opinion with the other opinions of record, namely the August 2002 and April 2010 VA medical opinions and should discuss the Veteran's assertion of continuing back problems since that service injury. 2. Then, readjudicate the issue 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. 2013). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs