Citation Nr: 1511891 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 10-49 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder (claimed as Intervertebral Disc Syndrome). 2. Entitlement to service connection for low back disorder (claimed as Intervertebral Disc Syndrome). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1967 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which reopened the Veteran's claim on the basis that new and material evidence had been received. However, the RO denied entitlement to service connection. The Veteran's claim was subsequently transferred to the RO in Pittsburg, Pennsylvania. The Veteran was scheduled for a hearing at Travel Board hearing at the RO in September 2014; however, he failed to appear for this hearing without explanation. His hearing request is therefore deemed to be withdrawn. See 38 C.F.R. § 20.072(f) (2014). The Board observes that, in the adjudication of the Veteran's case, the RO characterized the issue on appeal as entitlement to service connection for to service connection for discogenic disease at L-5, S-1 (claimed as intervertebral disc syndrome). However, the United States Court of Appeals for Veterans Claims has held that a claim includes all disabilities that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Therefore, the Board has recharacterized the issue on appeal as entitlement to service connection for a low back disorder. This appeal is now being processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision decided in June 1970, the RO denied the Veteran claim of service connection for a low back disorder. The Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision became final. 2. Evidence added to the record since the last final June 1970 denial is not cumulative or redundant of the evidence of record at the time of the decision, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disorder. CONCLUSIONS OF LAW 1. The June 1970 decision that denied the Veteran's claim of entitlement to service connection for service connection for low back disorder is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to reopen the Veteran's claim of entitlement to service connection for a low back disorder is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, the Board defers consideration of the merits of the Veteran's claim pending additional development consistent with the VCAA. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). "To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The RO determined that the Veteran's July 2009 claim was subject to a prior final denial dated June 1970, and that new and material evidence had been submitted since that final decision that was sufficient to reopen the claim for a review on the merits. However, the Board notes that it has an obligation to make an independent determination of its jurisdiction, regardless of the findings or actions of the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The record reflects that the Veteran did not timely appeal the June 1970 rating decision that denied service connection for service connection for discogenic disease at L-5, S-1. See 38 U.S.C.A. § 7105(b)(1) (West 2014). Therefore, that rating decision became final, and the claim will not thereafter be reopened or allowed. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103. The exception to this rule against reopening is that if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2014). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the rating decision of June 1970, the evidence of record included the Veteran's service treatment records and a VA examination report. The RO found that there was no trauma to the back in service and the complaints of back pain were not supported by x-ray examination. The VA examination revealed limitation of motion of the lumbar spine and narrowing of the intervertebral space between l-5 and S-1. In the present case, evidence added to the record since the June 1970 rating decision includes the Veteran's statements concerning the onset and continuity of symptoms, including pain, with his lower back since leaving service, see Letter from Veteran, July 2014, as well as statements made to VA medical professionals concerning the onset of his low back problems. In addition, the record contains the Veteran private treatment records, which contain various diagnoses of degenerative endplate changes, chronic degenerative disc desiccation, disc bulging, and degenerative joint disease. There are also ongoing VA treatment records that show circumferential disc bulging, facet joint arthropathy, disc narrowing, and hypertrophic. Finally, the Veteran was afforded a VA examination in October 2009 to address the nature and etiology of his low back disorder. The results of that examination, as well as a December 2009 addendum opinion to the examination report, have been associated with the Veteran's claim file. This evidence was not before the RO when the Veteran's claim was denied in June 1970. When considered with the previous evidence of record, this evidence related to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a low back disorder, namely a nexus between the present current low back disorder and service. Thus, the Board finds that the evidence submitted is both new and material, and that the Veteran's claim is reopened. ORDER The Veteran's claim of entitlement to service connection for a low back disorder is reopened. REMAND The Board sincerely apologizes for the additional delay of adjudication of the Veteran's claim, but a remand is necessary to ensure a complete record on which the Board can base its decision. The Veteran was afforded a VA examination in October 2009. The VA examiner diagnosed the Veteran with degenerative disk disease and degenerative joint disease in his lumbar spine, most prominently at the L5-S1 level. The examiner noted no symptoms of a disk herniation. Thus, the examiner confirmed the presence of a current disability. During the examination, the Veteran stated that his back pain began while he was in service, but that it had gotten worse over the last twenty years. The examiner indicated that the Veteran's claims file was not available for review, and stated that it was difficult to know whether the Veteran's present disability was related to service. The examiner said, "If he were to have service records that showed he has been treated for back pain at that time, whether he has any specific injury to his spine, or any specific back pain complaints that he may have had that began when he was in the service, this would make it more likely to be able to be determined." Thus, the examiner stated than an opinion could not be provided without resort to mere speculation. In December 2009, an addendum opinion was obtained. The examiner stated that he was able to review the Veteran's claims file. The examiner noted many complaints of low back pain in the Veteran's service treatment records, as well as a 1970 diagnosis of discogenic back pain, particularly at the L5-S1 area. The examiner diagnosed the Veteran with chronic low back pain and grade 1 L5-S1 spondylolisthesis. The examiner opined that the Veteran's condition was less likely as not associated with or related to any service-connected conditions. The examiner noted that the Veteran's range of motion had actually improved from the time he was in service to the present, and that, although he complained that his pain had increased over the last year, this was contradicted by the improvements in range of motion and his use of prescribed pain medication. The Board finds that the VA examinations of record are inadequate to render a decision. As noted above, the October 2009 examiner openly stated that he was unable to render an etiology opinion because he had not reviewed the Veteran's claims file. Furthermore, the December 2009 VA opinion is unclear as to the factual basis for its conclusion that the Veteran's low back disorder was not related to service. Much of the examiner's opinion focused on whether the Veteran's low back disorder was aggravated by any service-connected disability; specifically, the examiner noted that the Veteran's current range of motion was actually better than what it had been when the he left service in 1970. This rationale, however, does not support the examiner's ultimate conclusion that the Veteran's current condition is not related to the numerous complaints of low back pain while in service, and the medical records showing discogenic syndrome at L5-S1 within one year from discharge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is determined by whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof). Furthermore, it is unclear from the December 2009 opinion whether the examiner considered the Veteran's lay statements concerning the onset of his low back condition, and well as his statements concerning the continuity of symptomatology. In this regards, the Board notes that a VA examination must consider lay evidence of in-service incurrence and/or continuity of symptomatology since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the VA examinations of record must be rejected as not reliable and, hence, not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The United States Court of Appeals for Veterans Claims has held that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, on remand, the Veteran should be afforded a new VA examination to address the current nature, as well as the etiology, of the his low back disorder. Furthermore, a review of the record shows VA treatment records dated through December 2014. Since the Veteran's claim is being remanded, the RO should ensure that the most current and relevant VA treatment records are obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran should be provided the opportunity to identify any additional records that are relevant to his claim, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. See 38 C.F.R. § 3.159(c) (2014). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's VA treatment records related to his low back disorder. 2. The Veteran should also be given an opportunity to identify any additional healthcare providers who have treated him for his low back disorder since service. After securing any necessary authorizations from him, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his current low back disorder. The VA examiner should thoroughly review the Veteran's claims file, as well as a copy of this Remand, in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The examiner is asked to address whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current low back disorder had its onset in or is otherwise related to his active military service. In providing an opinion, the examination must consider the Veteran's private treatment records, VA treatment records, as well as the Veteran's service treatment records. In addition, the examiner's opinion should also reflect consideration of the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. 4. Thereafter, and after any further development deemed necessary, the issue on appeal should be reajudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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 2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs