Citation Nr: 1339158 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 12-04 867A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for a low back disorder. REPRESENTATION Appellant represented by: John R. Worman, Attorney-at-Law ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from May 1972 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board is reopening the claim. It is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for a low back disorder in July 1972. This claim was denied in an October 1972 rating decision, and the Veteran did not appeal. 2. Newly-submitted evidence raises a reasonable possibility of substantiating the claim for a low back disorder. CONCLUSIONS OF LAW 1. The October 1972 rating decision denying the claim for service connection for a low back disorder is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 2. New and material evidence since the October 1972 decision has been submitted to allow the reopening of this claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board is reopening and remanding the claim of service connection for a low back disorder on the basis of new and material evidence. Therefore, there is no need to discuss whether the Veteran has received sufficient notice insofar as the specific reasons for the prior June 2006 denial of this claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). Reopening of the Claim on the Basis of New and Material Evidence This claim was previously denied, and the prior decision was not timely appealed. The Board has the jurisdictional responsibility to determine whether there is new and material evidence, irrespective of what the RO determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). If the Board finds that no such evidence has been offered, the analysis must end, and what the RO may have determined in this regard is irrelevant. Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). If, however, new and material evidence has been submitted since the prior final denial of this claim, then it must be reopened and the former disposition reconsidered. 38 U.S.C.A. § 5108. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108. According to VA regulation, "new" evidence means existing evidence not previously submitted to agency decision makers. "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 cannot be cumulative or 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). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when determining whether the evidence is new and material. It also does not apply when determining the credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or assertions beyond the competence of the person making them). The last final denial of this claim was in June 2006, and VA must determine whether new and material evidence has been submitted since that time to reopen this claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim). The June 2006 rating decision denied the claim because the Veteran did not submit new and material evidence. At the time of the denial, the record consisted of the Veteran's service treatment records (STRs) and private medical records. The Veteran submitted evidence of a nexus between his low back disorder and his military service subsequent to the June 2006 rating decision. In light of this evidence, the Board finds new and material evidence has been submitted since the October 1972 denial of this claim. The evidence is new since it was not considered during the previous adjudication of the claim, and it is material to the disposition of the claim. Accordingly, new and material evidence has been submitted to reopen this previously denied and unappealed claim. 38 U.S.C.A. § 5108. To this extent only, this appeal is granted subject to the further development of this claim. ORDER The petition to reopen the claim of entitlement to service connection for a low back disorder is granted. To this extent, the appeal is allowed. REMAND The Board is reopening the claim of entitlement to service connection for a low back disorder because the Veteran has submitted new and material evidence. The Board is remanding this claim to obtain the Veteran's private medical records, and if warranted, a VA examination. Accordingly, the case is REMANDED for the following action: 1. Arrange to obtain all relevant treatment records from James L. Graham, D.C., and F.W. Allen, D.C. As these are private treatment records, notify the Veteran that, while VA will assist him in obtaining these records, he is ultimately responsible for obtaining them. 2. If the treatment records from James L. Graham, D.C., and F.W. Allen, D.C., are obtained, return the claims folder to the examiner who conducted the April 2009 VA examination. If the examiner is not available, schedule the Veteran for a VA examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests to determine the diagnosis should be accomplished. The examiner is advised that the law presumes the Veteran was in sound condition when he enlisted. Despite the June 1972 Medical Board finding that the Veteran's back condition pre-existed service, the examiner is instructed to disregard this finding. The examiner has NO DISCRETION in this matter and MUST presume the Veteran did not have a pre-existing back condition. The purposes of the examination are: (1) to determine whether the Veteran's low back disorder is proximately due to an in-service incident, and (2) to reconcile the April 2009 VA examiner's conclusion with the competing etiologies described below. The examiner's attention is called to the following: i. James L. Graham's July 2008 finding that the Veteran's "condition likely did result from an exacerbation force during his military experience;" and ii. F.W. Allen's July 2008 finding that the Veteran "appears to have a long standing low back condition." The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. If the examiner is unable to render the requested opinion without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. The Veteran is hereby advised that failure to report for this VA examination, without good cause, may have adverse consequences on this pending claim since this will result in deciding this claim based on the existing evidence of record. See 38 C.F.R. § 3.655. 3. Then readjudicate the claim for service connection for a low back disorder on its underlying merits in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs