Citation Nr: 1338021 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-19 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acute back strain (hereinafter a "low back disability"). REPRESENTATION Veteran represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file reveals VA treatment records dated through May 2012, which have been considered by the RO in the July 2012 statement of the case. The reopened claim of service connection for a low back 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 to ensure compliance with applicable law. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACTS 1. In a final April 1992 rating decision, the RO denied entitlement to service connection for a low back disability. 2. The evidence received since the April 1992 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. The April 1992 rating decision that denied the Veteran's claim of entitlement to service connection for a low back disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a 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 CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board reopens the service connection claim for a low back disability finding that new and material evidence had been received to reopen the claim and remands the issue on the merits. With respect to the claim to reopen based on new and material evidence, this award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. However, consideration of the merits of this issue is deferred pending additional development consistent with the VCAA. The Veteran's claim for service connection for a low back disability was originally denied in an April 1992 rating decision in which the RO found that there was no evidence that the Veteran had a current low back disability. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2013). Additionally, 38 C.F.R. § 3.156(b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-162 (1999). In April 1992, the Veteran was advised of the rating decision and his appellate rights. However, he did not submit a notice of disagreement (NOD) within one year of the rating decision. The Board further observes, in consideration of 38 C.F.R. § 3.156(b), that no evidence pertaining to the Veteran's claim for a low back disability was received prior to the expiration of the appeal period stemming from the April 1992 rating decision. Therefore, the April 1992 rating decision is final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b) 20.302, 20.1103 (2013). 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 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the April 1992 decision, the RO considered the Veteran's service treatment records which reflect complaints and treatment for back problems. In May 1975, he complained of back pain for 1 week. In July 1975, he was hospitalized for a few days after sustaining an acute L5 strain. He was separated from service in December 1975, following a Medical Board which determined that he had schizophrenia. Since the April 1992 rating decision, additional evidence has been received consisting of post-service VA treatment records dated from July 2009 through May 2012 and a September 2010 VA examination. The newly received medical evidence establishes that the Veteran has a current disability, diagnosed as degenerative arthritis of the lumbosacral spine. The Board concludes that the evidence received since the prior final denial is new in that it was not previously of record. It is material because it relates to an unestablished fact necessary to substantiate the Veteran's claim. Specifically, the July 2009 VA treatment record and September 2010 VA examination report are new and material because there was no prior competent medical evidence of a current low back disability. The medical evidence reflected in the VA treatment record and examination report is presumed credible for the purposes of evaluating the petition to reopen the claim for service connection for a low back disability. Justus, supra. Therefore, the Board finds that the new evidence tends to prove a previously unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for a low back disability is reopened. ORDER New and material evidence has been received, and the appeal to reopen a claim of entitlement to service connection for a low back disability is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he has a current low back disability related to service. Specifically, he reports that while on the USS Talbot, he fell down steel stairs and ever since he has had lower back pain. Service treatment records from July 1975 corroborate that the Veteran was hospitalized for several days for back treatment after sustaining a fall. An acute L5 strain was diagnosed. The Veteran was afforded a VA examination in September 2010. The examiner noted that the Veteran did not have any supporting documentation that his back pain was related to the injury he sustained in service; therefore, the examiner opined that the Veteran's back disability was not related to his one-time injury while in service, but mostly related with aging. It does not appear, however, that the examiner considered the Veteran's allegations of back pain ever since the initial injury in service. See generally November 2009 statement. The Board notes that the examiner must consider lay statements regarding continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of continuity of symptomatology). Thus, on remand, the Veteran should be afforded another VA compensation examination which takes into account the entire evidentiary record, to include the Veteran's competent and credible statements of ongoing back problems following his in-service injury. The Board finds that further development is needed for proper adjudication of the claim. The evidence reflects that the Veteran has identified receiving private treatment from Dr. Myers and Dr. Lutz. To that end, the Veteran should be afforded an opportunity to submit those records as well as any other private treatment records. Moreover, if additional relevant treatment records are obtained and associated with the claims file, the Veteran should be afforded a VA examination to obtain a new opinion as to the etiology of his current low back disability which reflects consideration of the additional records. Additionally, the record reflects that the Veteran was provided a notice letter in November 2009 in relation to his petition to reopen his service connection claim based on new and material evidence, however, that letter did not provide notice of the elements of service connection and the evidence and information not of record necessary to substantiate a claim for benefits in compliance with the VCAA. See 38 C.F.R. § 3.159(b). On remand, VCAA notice regarding service connection for a low back disability must be sent. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran proper VCAA notice, in accordance with 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b) specific to the claim for service connection for a low back disability. 2. The RO/AMC should obtain and associate with the claims file all outstanding VA treatment records from May 2012 to the present. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. 3. The RO/AMC should ask the Veteran to complete authorizations to obtain all records of his treatment for his low back, including those records of Dr. Myers and Dr. Lutz. All efforts to obtain these treatment records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records and additional action that may be taken concerning his claim and should be advised to submit any records in his possession. All such notification must be documented in the claims file. 4. After additional relevant treatment records are obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the etiology of his current low back disability. All indicated tests and studies should be conducted. The claims folder, including a copy of this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that the Veteran's current low back disability is related to a disease or injury in service to include the July 1975 injury documented in the service treatment records. The examiner must consider the Veteran's competent and credible lay statements as to continuity of symptomatology since service. A complete rationale must be provided. If the examiner is unable to render an opinion without resorting to speculation, the examiner must explain why such opinion cannot be rendered. 5. Then, the RO should readjudicate the claim. If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate decision. 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 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs