Citation Nr: 1418428 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 10-38 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction of the case was subsequently transferred to the RO in Seattle, Washington. In November 2013, the Veteran submitted additional medical evidence-namely, a November 2013 lumbar spine MRI report-along with a waiver of initial RO consideration of this evidence. This evidence is accepted for inclusion in the appeal. A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through August 2012, which have been considered by both the RO and the Board in conjunction with the current claim. The issue of entitlement to service connection for a low back disability, 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. The RO denied a claim for service connection for a low back disability in an unappealed August 2008 rating decision. 2. The evidence received since the August 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for a low back disability. CONCLUSIONS OF LAW 1. The August 2008 rating decision denying the claim for service connection for a low back disability is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. As new and material evidence has been received, the claim for service connection for low back disability 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. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As regards the claim to reopen, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) held that the law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Given the favorable disposition of the application to reopen the claim for service connection for a low back disability, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. II. Analysis The RO denied the Veteran's claim for service connection for a low back disability in an August 2008 rating decision. At the time of this rating decision, the evidence of record consisted of the Veteran's service treatment records, which did not include any complaints, findings, or diagnosis with respect to a low back disability, and VA outpatient treatment records noting onset of back symptoms in the 2000s and diagnosis of arthritis/lumbosacral spine stenosis in 2007 and 2008, with no discussion of a relationship between the Veteran's low back diagnosis and complaints and service. In the August 2008 rating decision, the RO noted that there was no evidence of any treatment or complaints in reference to his back in service, and no evidence of a link between his back condition and service. As such, the RO concluded that service connection was not warranted. The Veteran was notified of the August 2008 rating decision and of his appellate rights in September 2008 letter. The Veteran submitted a notice of disagreement and additional VA outpatient treatment records were obtained. The claim for service connection was then readjudicated in a January 2009 statement of the case based upon all evidence of record at that time. However, the Veteran did not submit a timely Form 9, Appeal to the Board, following the issuance of the statement of the case. That decision thus became final. See 38 U.S.C.A. § 7105(c) ; 38 C.F.R. §§ 3.156(b), 20.1103. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Veteran requested that VA reopen the previously denied claim of service connection in November 2009. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the August 2008 rating decision, the newly-received evidence includes additional VA outpatient treatment records reflecting continued treatment for low back disability, including surgical treatment, a November 2013 lumbar spine MRI report, and various statements from the Veteran and from his representative. In particular, the Veteran's representative, in a January 2014 informal hearing presentation, expressed that the Veteran's current low back disability may be related to his service-connected right knee disability. The Board finds that the evidence is "new" in that it was not before agency decision makers at the time of the August 2008 final denial of the claim for service connection. It is also not duplicative or cumulative of evidence previously of record, as the previous statements of record did not address service connection on a secondary basis. Moreover, when combined with treatment records reflecting altered gait and use of a cane due to right knee disability, as well as improvement of right lower extremity symptoms following back surgery, this evidence is suggestive of a potential relationship between these disabilities and thus raises a reasonable possibility of substantiating the claim. (Whether this is viewed as a new claim based upon a claim of secondary service connection or a reopened claim, the result is the same. Harder v. Brown, 5 Vet. App. 183 (1993).) Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a low back disability are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. However, for reasons discussed below in the remand, the Board finds that further development is necessary before the merits of the claim can be addressed. ORDER The application to reopen a claim for service connection for a back disability is granted. REMAND Given that the RO has not considered the claim for service connection for low back disability as secondary to service-connected right knee disability on the merits, a remand is warranted so that the RO can adjudicate this matter in the first instance and avoid any prejudice to the Veteran. See e.g., Bernard v. Brown, Vet. App. 384 (1993). In addition, the Board finds that additional development is needed with respect to this claim. In this case, the record reflects post-service diagnosis of lumbar. The record also reflects that the Veteran is service-connected for right knee torn lateral meniscus and traumatic arthritis which had led to an altered gait and use of a cane. The Veteran has not been afforded an examination to determine the relationship, if any, between the Veteran's lumbar stenosis and his service-connected right knee disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must send the Veteran a VCAA letter notifying him and his representative of the evidence necessary to substantiate the claim for secondary service connection for low back disability. The letter should also request that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for low back disability, to include as secondary to service-connected right knee torn lateral meniscus and traumatic arthritis. If the Veteran identifies any other pertinent medical records that have not been obtained, the RO/AMC should undertake appropriate development to obtain a copy of those records. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 2. After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the RO/AMC should arrange for the Veteran to undergo examination by a qualified examiner. The entire claims file must be made available to the examiner designated to examine the Veteran. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. With respect to the claimed low back disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by his service-connected torn lateral meniscus and traumatic arthritis of the right knee. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 3. Then, the RO/AMC should readjudicate the Veteran's claim for service connection for low back disability, to include on a secondary basis. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. 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). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs