Citation Nr: 1417692 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 11-15 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a claim for service connection for right leg neuropathy. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for right leg neuropathy, as secondary to low back disability. REPRESENTATION Appellant represented by: Daniel Smith, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which reopened the Veteran's claims for service connection for a low back disability and right leg neuropathy and denied the claims on the merits. In addition to disagreeing with the denials of service connection for a low back disability and right leg neuropathy in September 2010, the Veteran also filed a notice of disagreement for the issue of entitlement to service connection for traumatic brain injury. However, although the RO furnished the Veteran with an April 2011 statement of the case, the Veteran did not timely perfect an appeal with respect to the traumatic brain injury in his May 2011 VA Form 9, and therefore, this issue is not presently before the Board. In June 2012, the Veteran testified before the undersigned at a travel board hearing. A copy of the transcript has been associated with the claims file. The Board notes that when the Veteran filed his claims to reopen in the instant appeal, he was represented by the Military Order of the Purple Heart, but this representation was revoked in December 2010, when the Veteran submitted a VA Form 21-22a, "Appointment of Individual as Claimant's Representative," designating Veterans of Foreign Wars of the United States as his representative. This representation was also revoked in May 2013, when the Veteran submitted another VA Form 21-22a designating Daniel Smith, Attorney, from the law office of Bosley & Bratch as his representative. The Board accepts and recognizes the current change in representation. The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claims (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such file reveals that certain documents are potentially relevant to the issues on appeal. Thus, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In a March 2014 statement in the Veteran's VBMS file, the Veteran's representative requested service connection for posttraumatic stress disorder (PTSD) for the Veteran. As the Veteran is already service-connected for PTSD and in receipt of a 50 percent disability rating, the representative should be contacted to clarify what is being requested. The issue(s) of entitlement to service connection for a low back disability and right leg neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The July 2009 rating decision that denied service connection for a low back disability and right leg neuropathy was not appealed and is final. 2. Some of the evidence received since the July 2009 rating decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims for service connection for a low back disability and right leg neuropathy. CONCLUSION OF LAW New and material evidence has been received to reopen the claims for service connection for a low back disability and right leg neuropathy. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to reopen service connection for a low back disability and right leg neuropathy is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. 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. 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) (2013). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). Service connection for a low back disability was originally denied by a rating decision in March 1976. The Veteran did not submit additional evidence within a year of the rating decision, and therefore the rating decision became final. See 38 C.F.R. § 3.156(b) (2013). Subsequently in September 2008, the Veteran attempted to reopen his claim for service connection for a low back disability and filed a claim for service connection for right leg neuropathy as secondary to his low back disability. A July 2009 rating decision apparently reopened the Veteran's claim for service connection for a low back disability, and then denied the claim on the merits, along with the claim for service connection for right leg neuropathy. Although the Veteran submitted additional new lay evidence within a year of the July 2009 rating decision, this evidence was not material to his claims, as it was essentially duplicative of evidence that had been considered in the July 2009 rating decision. Therefore, the Board finds that the July 2009 rating decision also became final. See 38 C.F.R. § 3.156(b). In the July 2009 rating decision, the RO denied the low back disability claim because there was no evidence linking the Veteran's diagnosed degenerative disc disease of the lumbar spine to his period of service, to include a helicopter accident. As service connection had not been established for the Veteran's low back disability, the RO denied the right leg neuropathy claim, in part, because service connection for right leg neuropathy could not be established on a secondary basis as due to service-connected low back disability. The relevant post-service medical evidence included an October 2008 letter from a Department of Health and Human Services social worker and an April 2009 VA examination. In May 2010, the Veteran filed his requests to reopen the claims for service connection for a low back disability and right leg neuropathy. In the July 2010 rating decision on appeal, the RO reopened the Veteran's claims but denied them on the merits. The evidence received subsequent to the July 2009 rating decision includes, in relevant part, VA medical records dated from December 2008 to June 2011, lay statements from the Veteran's friends dated from July 2009 to January 2011, a February 2012 VA examination, a June 2012 travel board hearing transcript, medical treatise information, and the Veteran's statements. As pertinent here, the Veteran submitted medical treatise information indicating that the second most common spinal disability arising out of non-fatal helicopter accidents was degenerative disc disease. The Board notes that the newly received evidence need only help prove one unestablished element of a current disability to qualify as new and material evidence to reopen the claim. In this case, the medical treatise information constitutes evidence suggesting that the Veteran's degenerative disc disease of the spine could be due to his in-service helicopter accident. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Therefore, as the threshold for reopening a claim is low, and one of the Veteran's theories of entitlement for his right leg neuropathy is that of secondary service connection based on his low back disability, the Board finds that new and material evidence has been submitted to reopen the claims for service connection for a low back disability and right leg neuropathy. ORDER New and material evidence having been received, the claims of entitlement to service connection for a low back disability and right leg neuropathy are reopened. REMAND After a close review of the record, the Board finds that additional development is needed prior to further disposition of the Veteran's claims for service connection for a low back disability and right leg neuropathy as secondary to a low back disability. The Veteran contends that his low back disability and associated right leg neuropathy are due to an in-service helicopter accident that occurred in March 1969. On VA examination in April 2009, the examiner found that the Veteran's degenerative disc disease with radiculopathy was not at least as likely as not due to his period of active duty, in part, because the Veteran's service treatment records were silent for a helicopter accident and subsequent low back treatment. However, in rendering his opinion, the examiner did not consider the Veteran's lay statements regarding in-service occurrence of an injury and onset of his claimed disability. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran underwent another VA examination in February 2012 to determine whether his current low back disability and any associated right leg neuropathy were related to his period of active service. The VA examiner opined that the Veteran's degenerative disc disease of the lumbar spine, including right leg radiculopathy, were not due to his in-service helicopter crash. The examiner explained that the Veteran had a normal back examination on separation examination in July 1970 and a normal back x-ray in February 1976. He found that later x-rays revealed significant degeneration of the low back and that therefore, these changes had to be due to the "multiple documented add[i]tional injuries this veteran sustained after his service." The examiner acknowledged that there were subjective reports of back pain after the helicopter crash but concluded that the objective data supported that the Veteran's back injuries occurred after his period of active service. The February 2012 VA examiner provided an opinion that the Veteran's low back disability and right leg neuropathy were not related to his period of service and supported his opinion partly on the fact that there were instead multiple documented additional back injuries that the Veteran had sustained after his period of service. However, the Board notes that although the Veteran had reported having a crop dusting accident, motor vehicle accident, and a fall from a hay stack after service, he specifically stated at his April 2009 VA examination that these incidents did not cause injury to his low back. Indeed, he reiterated at his February 2012 VA examination that he did not have any back problems from his (crop dusting) airplane and truck accidents. Additionally, VA medical records dated from December 2008 to February 2010 do not show that the Veteran made any complaints or received any treatment for a low back disability in conjunction with any of these post-service accidents. Instead, the Veteran has complained of and received treatment for his head, ribs/abdomen, and shoulder in relation to these accidents. Therefore, the VA examiner's medical opinion was based on an inaccurate factual premise. Given that the February 2012 VA examiner based his opinion on an inaccurate factual premise, the claims file should be returned to the February 2012 examiner, if available, in order to obtain another opinion regarding any relationship between the Veteran's low back disability and his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that although the Veteran was provided VCAA notice regarding secondary service connection for right leg neuropathy in February 2012, the Veteran has not been provided with VCAA notice of the requirements for direct service connection for right leg neuropathy or a low back disability. Therefore, on remand, he should be provided with such notice. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him about what is needed to substantiate claims for direct service connection for a low back disability and right leg neuropathy. The notice must also include information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned, as compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Return the claims file to the examiner who conducted the February 2012 VA examination, if available. The examiner should once again review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current low back disability, including right leg radiculopathy, arose during service or is otherwise related to any incident of service, including the conceded March 1969 helicopter accident and the reported injury to the back around the time of the helicopter crash. The examiner should keep in mind that the record has not revealed multiple documented additional back injuries after service. The examiner should explain the medical basis for all conclusions reached. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs