Citation Nr: 1340801 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-28 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a low back disability. 2. Entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to June 1988 and from February 2003 to May 2004 with additional service in the National Guard. Service in Southwest Asia is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In January 2013, the Veteran presented sworn testimony during a videoconference hearing, which was chaired the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims file. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the individual who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned noted the basis of the prior determination and noted the elements that were lacking to substantiate the claims for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. At the January 2013 hearing, the Veteran submitted additional evidence directly to the Board. At that time, he also submitted a written waiver of local consideration of this evidence. This waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2013). As will be detailed below, the Board is reopening and remanding the issue of entitlement to service connection for a low back disability; the issue of entitlement to an increased disability rating for service-connected PTSD is also addressed in the REMAND portion of the decision below. Both issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. In a January 2008 decision, the RO denied a claim of entitlement to service connection for a low back disability. 2. The evidence submitted since the January 2008 RO decision is neither cumulative nor redundant of the record at the time of the prior final denial, and raises a reasonable possibility of substantiating the pending claim of entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. A January 2008 RO decision denying claims of entitlement to service connection for a low back disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2013). 2. Since the January 2008 RO decision, new and material evidence has been received with respect to the claim of entitlement to service connection for a low back disability; this claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. With respect to the new and material evidence claim, the Board has considered the legislation regarding VA's duty to notify and to assist claimants and finds that, given the favorable action taken herein with regard to the issue of whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for a low back disability, no further discussion of these specific VCAA requirements is required. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). II. Claim to Reopen The Veteran original claim of entitlement to service connection for a low back disability was denied in a January 2008 rating decision. He did not subsequently pursue an appeal of that denial and the January 2008 RO decision therefore became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.129, 19.192. As a result of the finality of the January 2008 decision, a claim of service connection for a low back disability may now be considered on the merits only if new and material evidence has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013); Manio v. Derwinski, 1 Vet. App. 140, 145 (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. See 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 such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. The relevant evidence of record at the time of the January 2008 RO decision consisted of service treatment records (STRs), a VA examination dated January 2008, and statements of the Veteran. STRs showed that the Veteran did not complain of or seek treatment for back problems during his military service. The VA examination dated January 2008 documented the Veteran's description of current low back pain; x-rays documented a normal lumbar spine. The January 2008 VA examiner diagnosed the Veteran with musculoskeletal low back pain from strain. In multiple statements, the Veteran asserted manifestation of low back pain due to wearing body armor and jumping in and out of vehicles during his deployment in Southwest Asia. See the Veteran's claims dated August 2005 and January 2007; and the Veteran's statement dated January 2007. Accordingly, at the time of the last final denial of the Veteran's service connection claim, there was insufficient evidence of in-service injury as well as insufficient evidence of medical nexus between the Veteran's claimed low back disability and his military service. Thus, the RO denied the Veteran's claim of entitlement to service connection for a low back disability. As indicated above, the Veteran did not appeal the RO's January 2008 decision, and the denial consequently became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2007). Relevant evidence received since the January 2008 decision consists of VA treatment records, statements of the Veteran, and a statement from the Veteran's spouse. After a review of the entire record, and for the reasons expressed immediately below, the Board finds that additional evidence has been submitted that is sufficient to reopen the Veteran's claim. VA treatment records dated in January 2011 documented the Veteran's complaints of low back pain with radiation; a diagnosis of acute sacroiliitis, right, was indicated at that time. In a written statement dated May 2010 as well as in his January 2013 Board hearing testimony, the Veteran reiterated his prior contentions of low back pain as a result of wearing combat gear while performing his military duties in Southwest Asia. In a statement dated January 2013, the Veteran's spouse indicated that she was married to the Veteran following his deployment to Iraq. She further stated that she witnessed the Veteran's back problems immediately upon returning and continuing thereafter. Critically, the January 2013 statement of the Veteran's spouse corroborates the Veteran's assertions of continuity of low back problems dating from his active duty discharge. The Board finds that this evidence is "new," as it was not of record at the time of the last final denial. It is also "material" because it relates to previously unestablished pertinent facts, namely continuity of symptomatology, and is therefore probative as to the issue of medical nexus. The Board has considered the recent holding in Shade v. Shinseki, 24 Vet. App. 110 (2010), in which the Court held that a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is not available to corroborate it. Id. See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Accordingly, the Board finds that the newly submitted evidence must be considered to fairly decide the claim. As a result, the Board finds that the newly added medical evidence, which is presumed credible, see Justus, supra, constitutes new and material evidence. The claim of service connection for a low back disability is therefore reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence sufficient to reopen a claim for service connection for a low back disability has been received; to this limited extent, the appeal is granted. REMAND For the reasons expressed below, the Board finds that the underlying claim of entitlement to service connection for a low back disability as well as the claim of entitlement to an increased disability rating for service-connected PTSD must be remanded for further development. With respect to the reopened claim, the Veteran contends that he has a low back disability that was incurred during his active military service. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As indicated above, a review of the record demonstrates that the Veteran was diagnosed with musculoskeletal low back pain from strain in January 2008 and acute right sacroilitis in June 2011. No nexus opinion has been rendered with respect to the Veteran's claimed low back disability. Thus, there remain questions as to current diagnosis and etiology of this claimed disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for a new VA examination should therefore be accomplished in order to address these outstanding questions with respect to the Veteran's claimed low back disability. As to the PTSD claim, the Veteran contends that his disorder is more disabling than the current 50 percent evaluation reflects. He was most recently afforded a VA examination in May 2010. He has subsequently contended that his psychiatric symptoms have worsened. See the January 2013 Board hearing transcript, pgs. 6-7. To this end, the Board notes that the Veteran described deteriorating symptomatology manifesting at work and home. Id. Accordingly, the evidence of record is unclear concerning the current nature and extent of the Veteran's service-connected PTSD. Thus, to ensure that the record reflects the current nature and extent of this disorder, a contemporaneous psychiatric examination, with findings responsive to the applicable rating criteria, is needed. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); & Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the current severity of the symptoms associated with the service-connected PTSD and to the extent of functional occupational impairment associated with this service-connected disability. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received at any VA facility since September 2011. All such available documents should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of the claimed low back disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent pathology should be annotated in the examination report. Pertinent testing deemed necessary should be accomplished; the results of any such studies should be included in the examination report. Following review of the claims file and examination of the Veteran, the examiner should either diagnose or rule out a low back disability. If any such disability is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the low back disability was caused or aggravated by the Veteran's active military service. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Then, schedule the Veteran for a VA psychiatric examination to determine the nature and extent of his service-connected PTSD. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected acquired psychiatric disorder. The results of any such testing and studies should be included in the examination report. The examiner should provide a detailed account of all manifestations of the service-connected PTSD found to be present. In addition, a Global Assessment of Functioning (GAF) score should be assigned, along with an explanation of the number assigned to the Veteran. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. A complete rationale should be given for all opinions and conclusions expressed. 4. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs