Citation Nr: 1503661 Decision Date: 01/26/15 Archive Date: 02/09/15 DOCKET NO. 12-33 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a neck disability, and if so, whether service connection is warranted. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from March 1970 to April 1973 and from July 1974 to July 1977. Additionally, the records show periods of Army Reserve service in the 1980s and 1990s. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2014, Disabled American Veterans (DAV) requested that the Veteran's claims file be transferred to Idaho as the Veteran had moved to Idaho. According to the November 2011 VA Form 21-22, the Veteran's representative is Oregon Department of Veterans' Affairs. DAV has not submitted a VA Form 21-22, and the Veteran has not indicated a desire to change his representative. Therefore, the Board finds that the Veteran's current representative remains the Oregon Department of Veterans' Affairs. In June 2013, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. When this case was most recently before the Board in January 2014, it was remanded for further development. It is now before the Board for further appellate action. The Board notes that the issue of entitlement to service connection for a neck disability, specifically entitlement to service connection for residuals of a neck injury and service connection for degenerative disc of the cervical spine, was adjudicated by the Board previously in January 2010. The Board denied both claims. In November 2010, the Veteran submitted a new claim for entitlement to service connection for a neck and back disability. The RO characterized the issue as whether new and material evidence had been received to reopen a claim for a neck disability. In January 2014, the Board characterized the issue as entitlement to service connection for a neck disability and not a new and material evidence claim because the alleged documents the Veteran had submitted were service records. See 38 C.F.R. § 3.156. These records had been lost, and Board remanded the case so that the Veteran could re-submit these records or the VA could try to locate them. The Veteran has re-submitted these service treatment records. These records are duplicative of service treatment records already included in the claims file. For this reason, the Board will first consider whether new and material evidence had been submitted to reopen a claim for service connection for a neck disability. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). The issue of service connection for ulcers secondary to medication taken for neck and back disabilities has been raised by the record during the June 2013 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), despite the past referral in the January 2014 Board remand. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of service connection for a neck disability, on the merits, and service connection for a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's initial claim of service connection for a neck disability was last denied in a January 2010 decision by the Board. 2. The evidence received since the January 2010 decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for a neck disability. CONCLUSIONS OF LAW 1. The Board's January 2010 decision is final. 38 U.S.C.A. § 7104 (West 2014). 2. New and material evidence has been received since the Board's January 2010 decision which denied service connection for a neck disability; thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must determine on its own whether new and material evidence has been submitted to reopen the claim regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). New evidence is defined as 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. See 38 C.F.R. § 3.156(a) (2014). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2014); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court of Appeals for Veterans Claims (the Court) has stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In January 2010, the Veteran's claim for service connection for a neck disability, specifically entitlement to service connection for residuals of a neck injury and service connection for degenerative disc of the cervical spine, was denied by the Board. Notice of this decision was mailed in January 2010. The Veteran did not appeal this decision. Instead, the Veteran filed a new claim for service connection for his neck in November 2011. Therefore, the January 2010 Board decision became final. In order to reopen the claim, the Veteran must provide new and material evidence. In essence, the Board denied the Veteran's claim because the current neck disabilities were not incurred in service or otherwise causally related to service. The Board's inquiry will be directed to the question of whether any additionally submitted [i.e. after January 2010] evidence bears directly and substantially upon this matter. Since January 2010, the Veteran testified at the June 2013 hearing that he has had constant stiffness in his neck ever since the fall during service. The language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). In this connection, the Board finds that this evidence constitutes new and material evidence. For the sole purpose of establishing whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed for the narrow purpose of determining whether sufficient evidence has been submitted to reopen the previously disallowed claims for service connection. See Justus, supra. This new evidence relates to a fact or facts necessary to substantiate the Veteran's service-connection claim for a neck disability, and presents a reasonable possibility of substantiating it. See 38 C.F.R. § 3.156 (2014). Accordingly, the Board finds that there is sufficient new and material evidence to reopen the Veteran's claim. The United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For reasons which will be expressed below, the Board finds that additional development is required before the claims may be adjudicated on the merits. ORDER As new and material evidence has been received to reopen the claim of service connection for a neck disability, the appeal to this extent is granted. REMAND During the June 2013 Board hearing, the Veteran testified that he was treated for sciatic pain while working for the U.S. Postal Service and that documentation of this treatment would be in his Postal health records. He reported that he stepped off a curb and that he felt sciatic pain in his leg. He also testified that he had physical therapy for this pain. These records are not included in the Veteran's claims file and could be relevant to the Veteran's claim for service connection for a back disability. An effort should be made to obtain these records. The Veteran received a VA examination in June 2014 and the examiner provided opinions as to whether the Veteran's current back and neck disabilities were related to his military service, including the fall in the 1980s. The June 2014 VA examination report for the back did not acknowledge the Veteran's lay statements that his back was painful since service. An addendum opinion is needed that considers the Veteran's lay statement that his back has been painful since service. The Veteran also testified that his neck disability was secondary to back disability. An addendum opinion is needed to address this issue. Accordingly, the case is REMANDED for the following action: 1. Request from the U.S. Postal Service any and all administrative or medical records from 1977 to the present that are relevant to the Veteran's claim of entitlement to service connection for a neck and low back disorder, to include records pertaining to sciatic pain in the legs. If the U.S. Postal Service responds to the effect that it requires an authorization or release from the Veteran, or any other information from the Veteran, to provide such records, then send a letter to the Veteran and his representative requesting that the proper authorization and/or release is completed, and any other required information is provided, and then submit such to the U.S. Postal Service. All obtained records must be associated with the claims file. The RO must continue in its efforts to obtain these records until it is determined that the records do not exist or that further efforts to obtain the records would be futile (such as if the U.S. Postal Service advises VA that the records do not exist or that the custodian does not have them). If this is the case, the RO must obtain a negative response from the U.S. Postal Service or other appropriate Federal department or agency that is the custodian of such records, to the extent possible. The RO must document all efforts to obtain such records and associate all such documentation with the claims file. 2. If the records described above are not obtained, send a letter to the Veteran and his representative informing them of the following: (i) That the U.S. Postal Service records were not obtained; (ii) a description of the efforts VA made to obtain the records; (iii) a description of any further action that VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records; and (iv) notice that the Veteran is ultimately responsible for providing the records. Allow an appropriate opportunity for the Veteran and/or his representative to respond. 3. Obtain VA treatment records since August 2013 from Portland VA Medical Center and Boise VA Medical Center and associate them with the claims file. 4. Obtain an addendum opinion from the VA examiner who provided the June 2014 VA examinations for the back and neck (or an appropriate medical provider, if that VA examiner is not available) If, but only if, an additional examination is deemed required by the examiner, then such additional examination should be scheduled. The examiner should review all newly obtained records, including records from the U.S. Postal Service and provide the following opinions: a. For any current low back disability identified, the examiner is requested to determine whether it at least as likely as not (50 percent probability or more) that it either had its onset in active service, or is the result of disease or injury incurred during active service to specifically include the fall that injured his back in June 1983 (see service treatment records). If other causes for his disability are more likely, those should be noted. The examiner's attention is directed to the service treatment records, noting treatment for his back in 1970, August 1972 and April 1975, and June 1983 as well as to the Veteran's lay statement that he had back pain since the 1980s. b. For any current cervical spine disability identified, the examiner is requested to determine whether it is at least as likely as not (50 percent probability or more) that it either had its onset in active service, or is the result of disease or injury incurred during active service-to specifically include the fall in June 1983 (see service treatment records). If other causes for his disability are more likely, those should be noted. The examiner's attention is directed to the service treatment records, noting the fall in June 1983 as well as to the Veteran's lay statements that he had neck pain since the 1980s. c. The examiner is requested to determine whether it is at least as likely as not (50 percent probability or more) that the Veteran's cervical spine disability is caused or aggravated (i.e., worsened in severity beyond the natural progress) by the Veteran's back disability. The Veteran's claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should note review of the file. 5. Upon completion of the above development, review the addendum reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 6. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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 2014). ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs