Citation Nr: 1537675 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 10-10 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability. 2. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from June 1966 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, that declined to reopen the claim for service connection for a lumbar spine disability. Jurisdiction of this matter is with the RO in Oakland, California. In May 2015, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. The issue of entitlement to service connection for a lumbar spine disability is REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. A March 1971 rating decision denied service connection for a lumbar spine disability, diagnosed as spondylolysis. The Veteran did not appeal that decision, and that decision is final. 2. The evidence received subsequent to the March 1971 final denial of the claim for service connection for a lumbar spine disability is new, and is also material because it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1971 rating decision denying the claim for service connection for a lumbar spine disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. As new and material evidence has been received since the March 1971 rating decision, the requirements to reopen the claim for service connection for a lumbar spine disability have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION A March 1971 rating decision denied service connection for spondylolysis. At that time, the service medical records showed no evidence of injury in service. A Medical Board found that the Veteran's spondylolysis existed prior to service and that it was a congenital deformity of the low back. The evidence of record at the time of the March 1971 rating decisions included the Veteran's service medical records and his lay statements. The Veteran was notified of the denial. However, no appeal was received from the Veteran. Therefore, the March 1971 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(b) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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) (2015). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a) (2015). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Evidence added to the claims file since the final March 1971 rating decision includes the Veteran's assertions that spondylolysis is not a constitutional or developmental abnormality based on a dictionary definition, VA medical records showing treatment for various diagnosed lumbar spine disabilities, the Veteran's testimony that he thought he hurt his back after carrying heavy equipment in service and that he had never had any back problems prior to coming in the service, and lay statements that were received in May 2015. In one letter, Y.S. stated that she has known the Veteran since January 1967 and first met him in Colorado, while he was stationed at Fort Carson Army Post. She further stated that the Veteran had complained of a back injury that he sustained while at Fort Carson. In the time that they spent in company, she asserted that she was aware of the fact that at time, the pain was more severe than others. In another letter, V.L. stated that she met the Veteran in 1967 in Colorado. Her boyfriend was in the same company at Fort Carson. She noticed that the Veteran favored one side when he walked. She further stated that the Veteran stated he had recently injured his back in the barracks. The new evidence suggests that the Veteran may have suffered an injury of the back in service, and suggests that spondylolysis that was diagnosed in service is not a congenital deformity. Therefore, that evidence that relates to an unestablished fact necessary to substantiate each of the claims. For the purposes of reopening only, that evidence is presumed credible. Justus v. Principi, 3 Vet. App. 510 (1992). Accordingly, the Board finds that the low threshold for reopening the claim has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the new evidence is material and the Veteran's claim for service connection for a lumbar spine disability is reopened. ORDER As new and material evidence has been received sufficient to reopen a claim for service connection for a lumbar spine disability, the claim is reopened and to that extent only, the appeal is granted. REMAND A review of the evidence shows that the Veteran's enlistment examination did not show any evidence of a lumbar spine disability. Therefore, the Veteran is presumed to have entered service in sound health in regard to the lumbar spine. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). The presumption of soundness attaches where there has been an induction examination during which the disability about which the Veteran later complains was not noted. Bagby v. Derwinski, 1 Vet. App. 225 (1991). The regulations provide expressly that the term noted means that only such conditions as are recorded in examination reports, and that a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of the conditions. 38 C.F.R. § 3.304(b)(1) (2015); Quirin v. Shinseki, 22 Vet. App. 390 (2009) (only prerequisite for applying the presumption of soundness at service entrance is that the enlistment or induction examination report have been free and clear of the now claimed disability). However, a congenital or developmental defect is not considered a disease or injury for VA purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2015). Therefore, a congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law. Further, the general presumption of soundness upon entry into service does not apply to congenital defects. 38 C.F.R. § 3.304(b) (2015). However, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993). Service medical records show that on induction examination in February 1966, the Veteran spine was evaluated as clinically normal. On contemporaneous self-report of medical history, the Veteran denied recurrent back pain. A November 1966 record notes that the Veteran was seen with complaints of a painful back in the lower lumbar region of six years duration. The impression was chronic muscular ache. In December 1966, the Veteran requested an appointment to go to the hospital for a sore back. He stated that his back hurt when he breathed or moved. It was noted that the Veteran had that condition six years prior. The Veteran denied a back injury, but did relate that years ago he had severe back pain. Medical Board evaluation revealed that the Veteran complained of pain in the back and that he developed his first episode of back pain five years prior, subsequent to playing baseball. Medical Board Proceedings in January 1967 show that the Veteran was diagnosed with spondylolysis of L5, bilateral, and L4 on the right side, not incurred in the line of duty, existed prior to service, and not aggravated by active duty. A brief summary noted a congenital deformity of the low back. The Veteran testified that he thought he hurt his back after carrying heavy equipment in service and that he had never had any back problems prior to coming in the service. He submitted letters in 2015 from individuals who knew the Veteran when he was in service. Those individuals attested that contemporaneous to the Veteran's active service, he informed them that he had injured his back at Fort Carson. At that time, they asserted that they were aware of the fact that the Veteran was in pain and that the Veteran favored one side when he walked. The Veteran asserts that he has a lumbar spine disability related to service. To date the Veteran has not been provided a VA medical examination to address the lumbar spine disability on appeal, and in view of the evidence, the Board finds it necessary to schedule the Veteran for a VA examination regarding the nature, extent, and etiology of any lumbar spine disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Issue the Veteran a notice letter requesting that he identify all sources of lumbar spine treatment, from both VA and non-VA health care providers, since separation from active duty, and to furnish authorization for VA to obtain all outstanding records. 2. Obtain all outstanding VA medical records. 3. Then, schedule the Veteran for a VA examination by a medical doctor with the appropriate expertise to obtain answers to the questions posed below. The examiner must review the claims file and that review must be noted in the report. The examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished with all results made available to the examiner prior to the completion of the report. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached, to include a discussion of any pertinent medical literature reviewed. The examiner should provide the following: (a) The examiner should diagnose any lumbar spine disabilities found. (b) The examiner should opine whether the Veteran's low back disability, diagnosed in service as spondylolysis, is a congenital or developmental abnormality. If no spondylolysis is found on examination, the examiner should address the findings of spondylolysis in January 1967 and should provide an opinion based on those findings as to whether that disability is a congenital abnormality. If so, the examiner should state whether spondylolysis a congenital defect or congenital disease. (c) If the examiner identifies a congenital defect, then the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that there is any superimposed disease or injury in connection with the congenital defect, and if so, whether it is at least as likely as not (50 percent or greater probability) that any identified superimposed disease or injury is related to active service. (d) If the examiner finds a congenital disease, then the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any congenital disease was incurred in active service. (e) If the examiner finds a congenital disease, then the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any congenital disease was aggravated (permanently worsened beyond the natural progress of the disorder) by active service. (f) The examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any lumbar spine disability is related to or was incurred in active service. The examiner should specifically opine whether it is at least as likely as not (50 percent or greater probability) that the previously identified spondylolysis is related to or was incurred during service. (g) If the examiner finds that one etiology is more likely than another, the opinion should provide a clear rationale for that finding. 4. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs