Citation Nr: 1504203	
Decision Date: 01/29/15    Archive Date: 02/09/15

DOCKET NO.  12-13 249	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether new and material evidence has been received to reopen service connection for a back disability.

2.  Entitlement to service connection for low back strain with lumbar radiculopathy due to disc herniation at L5-S1, stenosis at L4-L5, and degenerative disc disease of the lumbar spine (a back disability).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from July 1985 to November 1985 and from September 1986 to September 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In November 2014, the Veteran testified in a Travel Board hearing before the undersigned.  A copy of the hearing transcript is in the Veteran's file on "Virtual VA."  In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Veterans Benefits Management System" and on the Virtual VA system to ensure a complete assessment of the evidence.

The issue of service connection for a 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 unappealed March 1998 rating decision, in pertinent part, denied service connection for a low back condition on the basis that there was no current diagnosis of a back condition.

2.  The Veteran did not appeal the March 1998 rating decision after being notified of his appellate rights, and no additional evidence was received within one year of the decision.

3.  Additional evidence received since the March 1998 rating decision is neither cumulative nor redundant and addresses the grounds of the prior final denial of service connection for a back disability, namely, a current diagnosis, so raises the possibility of substantiating a claim for service connection for a back disability.


CONCLUSIONS OF LAW

1.  The March 1998 rating decision, denying service connection for a back disability, became final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).

2.  New and material evidence has been received to reopen service connection for a back disability.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014).  The application to reopen a claim of entitlement to service connection for a back disability has been considered with respect to VA's duties to notify and assist.  Given the favorable outcome adjudicated herein, further explanation of how VA has fulfilled the duties to notify and assist is not necessary.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured.  See 38 C.F.R. § 3.159 (c)(4)(iii).  The issue of service connection for a back disability, which is reopened in the decision herein, is Remanded below for further development.

Reopening of Service Connection for a Back Disability

Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103.  If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial.  38 C.F.R. § 3.156(a).  Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist.  Id., at 118.

The Veteran brought a prior claim for service connection for a low back condition, which was denied in a March 1998 rating decision.  The Veteran was notified of that rating decision and provided notice of procedural and appellate rights the same month.  The Veteran did not disagree with the determination within one year of that notice.  No additional evidence was received within one year of the March 1998 notice.  The March 1998 rating decision became final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In the March 1998 rating decision, the RO denied service connection for a back condition on the basis that the Veteran did not have a current diagnosis of a back disorder.  The evidence before the RO at the time of the March 1998 rating decision consisted of service treatment records and a January 1998 VA spine examination report.  

Since the March 1998 rating decision, additional evidence has been received in the form of the Veteran's statements, particularly during the November 2014 Travel Board hearing, private medical opinions from the Veteran's treating physician and chiropractor, and a May 2009 VA examination with a September 2009 VA addendum medical opinion.  The Veteran's statements, the private medical opinions, and the May 2009 VA examination with the September 2009 VA addendum medical opinion are new because they have not been previously submitted.  

This evidence is also material because it pertains to the basis for the prior denial, that is, a current diagnosis of a back disability, and raises a reasonable possibility of substantiating the claims.  Specifically, in a February 2009 letter from the Veteran's treating physician for spine and orthopedic surgery, the results of a December 2008 magnetic resonance imaging (MRI) was discussed.  The December 2008 MRI of the Veteran's lumbar spine revealed degenerative disc disease at the L5-S1 level.  In the May 2009 VA examination report, the Veteran was diagnosed with low back strain with lumbar radiculopathy due to disc herniation at L5-S1.  For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a back disability.  See 38 C.F.R. § 3.156(a).  The reopened issue of service connection for a back disability is addressed in the Remand section below.


ORDER

As new and material evidence has been received, the appeal to reopen service connection for a back disability is granted.



REMAND

A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for a back disability.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2014); 38 C.F.R. § 3.159(c), (d) (2014).

Service Connection for a Back Disability

The Veteran has been afforded VA spine examinations in January 1998 and May 2009 with a September 2009 addendum medical opinion.  The Veteran has also submitted numerous medical opinions from his treating physician and chiropractor.  Significantly, however, while these medical professionals opined on the etiology of the Veteran's current back disability, none of them addressed or considered the significance, if any, on the December 2002 post-service back injury when he was lifting boxes during his employment at the VA John Dingel Healthcare System.  At that time, upon X-ray examination, there were no significant osseous or articular abnormality involving the lumbar spine.  Regardless, the Veteran was put on light duty but did not receive workers' compensation or any other disability payment.  

During the November 2014 Travel Board hearing, the Veteran testified that he recently had another injury to the back when he picked up an 800 pound motor bike after it had fallen over.  See Hearing Transcript at 13.  Again, none of the medical professionals who opined on the etiology of the Veteran's back disability addressed the effect, if any, of the post-service back injuries on the current back disability.  In this regard, where VA provides the Veteran an examination in a service connection claim the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (requiring medical examiners to provide a "reasoned medical explanation connecting " observations and conclusions).  For these reasons, another VA addendum medical opinion is necessary to assist in determining the etiology of the Veteran's current back disability.

Accordingly, the issue of connection for a back disability is REMANDED for the following actions:

1. Refer the case to an appropriate VA examiner (a physician with expertise in orthopedic surgery is preferred but not required) for a medical opinion to assist in determining the etiology of the Veteran's back disability.  The relevant documents in the claims file should be made available to, and be reviewed by, the VA examiner.  If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary.

The VA examiner should offer the following opinion:

Is it at least as likely as not (50 percent probability or greater) that the Veteran's back disability had its onset in service or is otherwise related to service, including injuries of the back during service?

In rendering the opinion requested, the VA examiner is to assume, as fact, that the Veteran sustained injuries to his back in service and complained of back pain in January 1987, July 1987, September 1987, December 1987, and February 1988.  The VA examiner should also address and comment on the significance, if any, of the December 2002 post-service back injury and the more recent back injury while picking up a motor bike that had fallen over on the Veteran's current back disability.

A rationale should be given for all opinions and conclusions rendered.  The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim.

2. After completion of the above and compliance with the requested actions has been ensured, readjudicate the claim for service connection for a back disability.

The Veteran has the right to submit additional evidence and argument on the matter 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).




______________________________________________
R. FEINBERG
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs