Citation Nr: 1416418 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 10-47 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for disc bulge at L4-5 with a right paracentral disc herniation at L5-S1, previously claimed as a back condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1992 to December 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. (The Veteran's June 2010 notice of disagreement is timely with respect to the earlier rating decision issued in July 2009.) The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence and while there are additional treatment records, the records are not relevant to the present claim. The Veteran testified before the undersigned at a March 2012 hearing at the RO. A transcript has been associated with the file. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2001 rating decision denied the Veteran's claim of entitlement to service connection for a back disability; the Veteran took no further action on the appeal, and the decision became final. 2. Evidence received since the October 2001 rating decision is new to the claims file, and relates to an unestablished fact necessary to substantiate the claim of whether the Veteran has a current back disability that began in, or was caused by, service. CONCLUSION OF LAW 1. The October 2001 rating decision, denying the claim of service connection for back disability, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been submitted for the claim of entitlement to service connection for back disability; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a)(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As to the claim of whether new or material evidence has been received sufficient to reopen a claim of entitlement to service connection for a back disability, that claim has been granted, as discussed below. As such, the Board finds that any error related to the duties to notify or assist on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. New and Material Evidence The RO denied service connection for a back disability in an October 2001 rating decision. The Veteran was notified the same month. The Veteran did not respond. The Board concludes that the October 2001 rating decision is final. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence"; "new evidence" is evidence not previously submitted to agency decision makers, while "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. The 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir 2004). Entitlement to service connection for a back disability was denied in October 2001 for lack of a disability that could be attributed to an in-service condition. The rating decision noted that service records indicated treatment in service for low back pain and a history of trauma, but the records did not indicate a chronic back disability and the December 1995 separation examination was negative for any back disability. To reopen, new and material evidence must be received showing a current disability or an indication that a current disability is due to service. The Veteran received treatment at a VA Medical Center from 2008 to 2009 for his back disability. This evidence is new in that it was not previously of record. This evidence is also material as it relates to the prior basis for denial of the claim. In this regard, the Board observes that the evidence now shows the existence of a chronic low back disability, which relates to an element necessary to substantiate the claim that was found missing in the prior denial. Accordingly, new and material evidence has been received, and the claim is reopened. ORDER Reopening of a claim for service connection for a back disability is granted; the appeal is granted to this extent only. REMAND The AMC should obtain all outstanding private medical treatment records relating to spinal injuries. In his March 2012 Board hearing, the Veteran asserted that he had been to a private doctor in Muskogee. The AMC should request additional information from the Veteran about the identified provider, and then attempt to obtain any outstanding private treatment records. Also at the hearing, the Veteran asserted that beginning in 1996, he began to seek treatment for his back. Records from the Stigler Choctaw Health Center dated from July 2008 to December 2008 are in the claims file. The time frame of the records request, however, is not clear from the record. The Board finds that records dated since the Veteran's discharge from service should be requested. If additional evidence received shows treatment for a back disorder prior to 2008, then the June 2010 VA examination report should be returned to the examiner for an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from the private treatment provider located in Muskogee, Oklahoma, identified by him at the March 2012 Board hearing. If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the Muskogee VA Medical Center and Stigler Choctaw Health Center since December 1995, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 3. If additional medical evidence associated with the record shows treatment for back problems prior to 2008, return the examination report and claims file to the examiner who conducted the June 2010 VA spine examination (or another appropriate examiner if unavailable) for an addendum opinion. In light of additional relevant medical evidence associated with the claims file after the June 2010, VA examination, is it at least as likely as not (50 percent or greater probability) that the low back disability is related to symptomatology documented in service? The examiner should provide a rationale for the opinion provided. 4. Then, the AMC should readjudicate the claim on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2013). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs