Citation Nr: 1342028	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  11-32 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Whether new and material evidence has been received to reopen a claim for           service connection for degenerative joint disease of the lumbar spine (claimed as a severe back problem).


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel
INTRODUCTION

The Veteran served on active duty from September 1972 to March 1975.         

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

Whereas through an October 2011 Statement of the Case (SOC) the RO reopened the claim, it is the province of the Board to make this preliminary determination.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  

An October 2012 Travel Board hearing was held before the undersigned             Veterans Law Judge (VLJ) of the Board.

Upon reopening of this matter, the underlying claim on the merits 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.


FINDINGS OF FACT

1. In a December 2006 rating decision, the RO denied the Veteran's last filed petition to reopen service connection for a lower back disability. The Veteran         did not appeal.

2. Additional evidence has since been obtained which relates to an unestablished fact necessary to substantiate this previously denied claim. 






CONCLUSIONS OF LAW

1. The December 2006 RO rating decision denying a petition to reopen                 service connection for a lower back disability is a final and binding determination.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2013).

2. There is new and material evidence since that decision to reopen this claim.                 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon review, the Board finds that the additional evidence received since the last final denial of this claim relates to an unestablished fact necessary to establish the benefit sought.  As this evidence is new and material the claim for service connection is reopened.  

A decision on the merits is deferred pending completion of the case development being requested below.


ORDER

New and material evidence having been received, the claim for service connection for degenerative joint disease of the lumbar spine is reopened; the appeal to this extent is granted.  


REMAND

The Board is remanding the Veteran's reopened claim for RO consideration                 on the merits. 

Moreover, a supplemental opinion from the June 2010 VA Compensation and Pension examiner is required to reevaluate the question of whether the Veteran's back disability is of service origin, based on a review of service treatment records (STRs) (which temporarily were not available to the examiner) as well as the pertinent lay witness evidence regarding medical history. See 38 U.S.C.A.                  § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim).

Proper measures should also be undertaken to obtain any pertinent remaining VA or private treatment records. 

Accordingly, this claim is REMANDED for the following action:

1. Contact the Veteran and request that she identify              all sources of private medical treatment for her back condition from 1979 onwards, and provide a copy of         VA Form  21-4142 (medical release form) for this purpose. Then obtain these records based on the information provided. If any of the requested records             are unavailable, clearly document this fact and notify             the Veteran of any inability to obtain these records,               in accordance with 38 C.F.R. § 3.159(e).  

2. Request from the Oklahoma City VA Medical Center (VAMC) all available treatment records for the Veteran since February 2011. Then associate all paper records obtained with the claims file, or in the alternative associate an electronic copy of these records with                   the Veteran's "Virtual VA" claims folder.

3. Then return the claims folder to the examiner who conducted the VA examination of June 2010 and request a supplemental opinion. The VA examiner is requested to review the contents of the Veteran's claims file. The VA examiner is then requested to provide another opinion              as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current lower back disability is etiologically related to his military service taking into consideration: (1) the entire documented medical history during and since service, including upon review of the Service Treatment Records; and                   (2) the lay witness statements of record from the Veteran and other individuals, providing competent lay assertions of continuity of symptomatology from service discharge to the present time period. (Please consider in this regard that the mere lack of documented continuous treatment since military service would not in and of itself be a sufficient opinion rationale, given the Veteran's competent lay assertions of having had relevant symptomatology during the intervening time period.)

Provided that the June 2010 VA examiner is not available, or is no longer employed by VA, obtain a medical opinion from another examiner that addresses the inquiries set forth above regarding the disability claimed.

4. The RO/AMC should then review the claims file.              If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West,             11 Vet. App. 268 (1998).
5. Thereafter, readjudicate the claim for service connection for a back disability, based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and her representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before      the file is returned to the Board for further appellate consideration.

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).

No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claim. Her cooperation in VA's efforts to develop her claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 

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. 2013).




______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs