Citation Nr: 1307035 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-40 454A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for spondylosis, L4-L5. 2. Entitlement to service connection for spondylosis, L4-L5, to include as secondary to service-connected disability. 3. Entitlement to an initial evaluation higher than 10 percent for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1967 to March 1970 and service in the United States Army/United States Army Reserve from February 1985 to February 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In April 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In a rating decision in September 2012, the RO granted service connection for hypertensive cardiovascular disease and assigned a 30 percent rating. As the Veteran has not initiated an appeal of the initial rating, the claim has not been developed for appellate review by the Board. The Veteran does have the remainder of the one-year period from notification of the September 2012 rating decision, to file a notice of disagreement to initiate an appeal of the assigned rating for hypertensive cardiovascular disease. The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. The issues of service connection for spondylosis, L4-L5 and for an increased rating for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By a rating decision dated in May 1975, the RO originally denied a claim of service connection for spondylosis, L4-L5, and the Veteran did not appeal that determination, nor was any new and material evidence received within the appeal period thereafter. 2. By a rating decision dated in July 1980, the RO denied the claim to reopen the claim of service connection for spondylosis, L4-L5, and the Veteran did not appeal that determination, nor was any new and material evidence received within the appeal period thereafter. 3. Most recently, a February 2002 rating decision may be reasonably construed as having implicitly denied the Veteran claim for service connection for spondylosis, L4-L5. 4. Evidence added to the record since the February 2002 RO denial, considered in conjunction with the record as whole, relates to an unestablished fact necessary to substantiate the claim for service connection for spondylosis, L4-L5, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1975 rating decision which denied service connection for spondylosis, L4-L5, is final. § 4005(c) (West 1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1974); currently, 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. The July 1980 rating decision which denied a claim to reopen the claim for service connection for spondylosis, L4-L5, is final. 38 U.S.C.A. § 4005(c) (West 1976); 38 C.F.R. §§ 319.118, 19.153 (1980); currently, 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. The February 2002 rating decision which implicitly denied a claim to reopen the claim for service connection for spondylosis, L4-L5, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 4. New and material evidence has been received since the February 2002 RO denial to reopen a claim of entitlement to service connection for spondylosis, L4-L5. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002& Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the application to reopen the claim of service connection for spondylosis, L4-L5 is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claim to reopen is not necessary. Analysis Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Reopening the Claim for Service Connection for Spondylosis, L4-L5. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The record establishes that the claim of service connection for spondylosis, L4-L5 (spondylosis) was denied in a rating decision dated in May 1975. The RO denied the claim on the basis that spondylosis was a constitutional or developmental abnormality. The Veteran was notified of the decision by a letter issued in June 1975. No appeal was taken from that determination, and it became final. 38 U.S.C.A. § 7105. In this regard, it is additionally noted that no additional evidence pertinent to the claim, to include Federal, VA, or uniformed services treatment record, were received within one year of the notice of the May 1975 determination. See 38 C.F.R. § 3.156(c). The next communication from the Veteran regarding his spondylosis claim occurred in March 1980 when the Veteran filed a claim to reopen the claim for service connection for spondylosis. The claim to reopen was denied in April 1980 and July 1980 rating decisions. The RO held that as the medical evidence was new but not material as it did not establish that the spondylosis was incurred or aggravated by service. The Veteran was notified of the decisions by letters issued in April 1980 and September 1980. No appeal was taken from those determinations, and they became final. 38 U.S.C.A. § 7105. In this regard, it is additionally noted that no additional evidence pertinent to the claim, to include Federal, VA, or uniformed services treatment record, were received within one year of notice of the determinations. See 38 C.F.R. § 3.156(c). The next communication from the Veteran regarding his spondylosis claim occurred in November 2001when he filed a claim for service connection for a low back disability. In February 2002, the RO issued a ratings decision granting service connection for degenerative disc disease of the lumbar spine (degenerative disc disease) as a result of an injury that occurred in 1996 when the Veteran was in his second period of active duty. The decision did not discuss the spondylosis disability, but the VA notification letter of the rating decision, sent in March 2002, stated service connection was not granted for spondylosis, L4-L5. The Board therefore finds the Veteran's claim for service connection for spondylosis was implicitly denied. See Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010). The letter also advised the Veteran of his appellate rights, but no appeal was taken from that determination, and it became final, 38 U.S.C.A. § 7105. The next communication from the Veteran regarding his spondylosis claim occurred in August 2009, which is the current claim to re-open. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1990). The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it. Shade v Shinseki, 24 Vet. App. 110, 118 (2010). Regardless of the RO's determination, that is, whether it re-opened a claim for service connection or not, the Board is not bound by that determination as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Since the prior final rating decision in February 2002, VA has received additional evidence, including VA treatment records, private medical treatment records, and lay statements by the Veteran. The RO denied the claim for service connection for spondylosis because the evidence failed to show spondylosis was incurred or aggravated by service. The record shows that in July 2009, a private physician, whose signature is illegible, issued a report stating the Veteran had chronic low back pain. An MRI dated in July 2009, demonstrated spondylolisthesis at L4-L5, probably degenerative in nature, disc desiccation with a disc bulge, and a posterior annular tear, also at L4-L5. In November 2009, the Veteran was provided a VA examination where it was noted the Veteran was injured when an automobile struck him while he was jogging during a military training exercise. He now has back pain which he described as mild to moderate constant back pain. It has gotten progressively worse with right lower extremity numbness and tingling. He had flexion to 50 degrees, extension to 10 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 15 degrees. Repetition reduced flexion to 40 degrees, extension to 5 degrees, bilateral flexion to 10 degrees and bilateral rotation to 10 degrees. Imaging studies demonstrated L4-L5 degenerative disc disease with grade 2 spondylolisthesis, and spondylosis at L4. EMG studies demonstrated lateral radiculopathy on the right S1 and left at L5. The examiner also took into account the private MRI from July 2009. The diagnosis was degenerative disc disease of the lumbar spine, spondylolisthesis, at L4-L5, spondylosis at L4, disc desiccation disc desiccation with a disc bulge, and a posterior annular tear, also at L4-L5. The Veteran submitted a statement received in November 2008 that his pain started after he was hit by the automobile. He also submitted medical records of his treatment after the accident which indicated at that time, his medical care provider believed he had a mechanical back problem. In February 2010, the Veteran stated he was injured in service while on active duty and his spondylosis was included as part of the L4-L5 injury. In September 29, 2010, the Veteran was seen by a private physician who stated the Veteran had lumbar disc disease. In October 2010, the Veteran argued that although he was injured while on active duty in 1996 (the car accident), he stated he also injured his back during the first period of active duty but does not have any medical records from that injury to support his claim. In April 2011, an MRI revealed that the Veteran has Grade II spondylolisthesis, L4 relative to L5. Degenerative disc disease at the L4-L5 level with a disc bulge. There is associated neural foraminal stenosis on both sides. Finally, the MRI demonstrated lumbar spondylosis. Also in April 2011, the Veteran submitted records which predated the 1996 motor vehicle accident, but are service treatment records. Starting in July 1988, the Veteran began seeking treatment for low back pain that began a month earlier. A record dated in March 1989, included a finding of spondylolisthesis. In February 1989, the Veteran stated he hurt his back in June or July 1988 while trying to lift cargo out of a truck and material fell on him. In September 2011, the Veteran testified and submitted a statement that the degenerative changes he had, including the spondylosis was the result of an in service injury as the initial cause, leading to the onset of spondylosis. The Veteran argued that he incurred spondylosis as a result of the July 1988 event where cargo fell on him. To summarize the foregoing, the Veteran has submitted evidence of an injury in June or July 1988 where he received an injury to his back and that he now has spondylosis as a result. The Board also notes to the extent he had spondylosis before the in service injury in 1988, the accident he described may have aggravated the spondylosis as a preexisting condition. This evidence constitutes new evidence as it was not previously submitted to agency decision makers. It is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. It shows that the Veteran's onset of his spondylosis had its onset in the second period of service. As the Board must presume the credibility of the evidence, the evidence raises a reasonable possibility of substantiating the claim. The evidence shows a possible link between the Veteran's second period of service and his spondylosis. The occurrence of an event in service and the lack of a relationship between the disability and service were both reasons for the prior final denial. Therefore, the Board finds that new and material evidence has been received to reopen the previously denied claim of service connection for spondylosis, L4-L5. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). As is addressed in greater detail in the Remand below, further development is needed before reaching a decision on the merits of the reopened claim. ORDER New and material evidence having been received, the claim for service connection for spondylosis of L4-L5 is reopened, and to this extent the appeal is granted. REMAND As noted, the Veteran has argued that his spondylosis is degenerative in nature and resulted from the June or July 1988 incident in service where material fell on him. He also has submitted evidence that this incident was the initial onset of continuing back pain and other symptoms. Lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). At this point, as the Veteran has dated the onset of his spondylosis disability to service and as VA has not provided the Veteran a VA examination regarding the relationship between any current spondylosis disability and service, the Board has determined that he should be provided a VA examination to determine whether the Veteran has a spondylosis disability attributable to service. As the claim for service connection for spondylosis has been reopened, the Board has determined that the examination should cover the relationship between the Veteran's current spondylosis and both periods of reported service. As to the claim for a higher rating for hypertension, in a March 2010 rating decision, the RO denied an evaluation in excess of 10 percent for hypertension. In his VA-9 substantive appeal regarding the claim of new and material evidence to reopen the claim of service connection for spondylosis filed in October 2010, the Veteran expressed disagreement to the rating assigned for his hypertension disability. As the RO has not issued a statement of the case addressing the claim, the Board is required to remand the claim. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA examination to determine the etiology of his spondylosis of L4-L5. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. * The examiner is requested to offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the Veteran's spondylosis of L4-L5 is etiologically related to any period of the Veteran's military service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. In rendering the requested the opinion, the examiner must reference the April 1968 service treatment report that the Veteran sought treatment for back pain that had bothered him for several weeks; the Veteran's reported history of back injury that occurred when he was blown off a gun mount on the back of a truck (see, e.g., March to April 1971 VA hospitalization treatment record, and an April 1975 VA examination report cited medical history by the Veteran); the injury described by the Veteran where in June or July 1988 material fell on him while he was unloading cargo and that started the onset of pain and other symptoms; and the Veteran's car accident in 1996 when he developed severe pain and other symptoms. * The examiner is also asked to opine as to whether it is at least as likely as not that the Veteran's service-connected degenerative disc disease and/or chondromalacia chronically aggravated the spondylosis of L4-L5. In this context, the term "aggravation" means a permanent increase in the spondylosis disability, that is, an irreversible worsening beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms, due to service-connected disabilities. The examiner is advised that lay evidence of continuity of symptomatology as to osteoarthritis after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. If, after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify whether actual causation cannot be determined because there are several potential non-service related causes of the current tremor disability, if so, identify the other potential causes for the symptoms of tremors after service as described by the Veteran, or that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record, considering current medical knowledge. Any additional development that would facilitate rendering the opinion should be specified. 2. After the foregoing development is completed, adjudicate the reopened claim for service connection for spondylosis L4-L5, to include as secondary to service-connected disability. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford the appropriate period to respond. Thereafter, the case should be returned to the Board as warranted. 3. Furnish the Veteran a statement of the case on the claim for a rating higher than 10 percent for hypertension as denied in a March 2010 rating decision. In order to perfect an appeal of the claim, the Veteran must still timely file a substantive appeal. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs