Citation Nr: 1544633 Decision Date: 10/20/15 Archive Date: 10/29/15 DOCKET NO. 14-17 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1973 to June 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The reopened claim of service connection for a low back disability is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. In a rating decision in December 1976, the RO denied the Veteran's claim of service connection for a low back disability. 2. Evidence received since the December 1976 RO rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for low back disability and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for low back disability may be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the Board's decision to reopen the claim of service connection for a low back disability is favorable to the Veteran, no further action is required to comply with the VCAA. Procedural History and Evidence Previously Considered In a rating decision in December 1976, the RO denied service connection for a back and neck condition, on the basis that the evidence of record did not show that the Veteran had any back or neck condition, despite his involvement in an automobile accident in February 1976. In a letter, dated in December 1976, the RO notified the Veteran of the adverse determination and of his procedural and appellate rights. The notice included the Veteran's right to appeal the adverse determination by notifying the RO of his intention within one year from the date of the letter. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decision. Thus, the December 1976 rating decision became final by operation of law, except the claim may be reopened if new and material evidence is received. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.156. The evidence at the time of the rating decision in December 1976 included service treatment records (STRs). The STRs included a February 1976 report of the Veteran's treatment following the above-mentioned accident that occurred in February 1976. That report indicates that the Veteran was involved in an auto accident wherein his vehicle was struck from behind. The report has the words "hurt. Whiplash? neck." It also includes statements of "hyperesthesia left lateral neck, cervical motion OK, muscle strength OK, reflexes OK, tenderness in C7." Finally, the report states that the Veteran was confined to quarters for whiplash. In addition to the Veteran's STRs, a Report of Accidental Injury dated in June 1976 was associated with the claims file at the time of the December 1976 rating decision, wherein the Veteran reported "back and neck injuries which still bothers me." Also of record at the time of the December 1976 rating decision was a report of a VA medical examination in July 1976. The Veteran reported a history of back and whiplash injury, but had no specific complaint on the day of the July 1976 examination. X-rays at that time showed no evidence of recent fractures of the cervical or lumbar spine. Following the VA examination, the diagnosis was "no residuals of back and neck whiplash observed." Current Claim to Reopen As the unappealed rating decision in December 1976 is final based on the evidence then of record, new and material evidence is required to reopen the claim. 38 U.S.C.A. § 5108. "New evidence" is defined as existing evidence not previously submitted to agency decision makers; "material evidence" is defined as 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 most recent 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). For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption does not extend to the weight of the evidence, however. Id. The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As the Court stated in Shade, when making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should consider whether the evidence could, if the claim was reopened, reasonably result in substantiation of the claim, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The records received since the December 1976 rating decision consist of private medical records, VA outpatient records, and statements of the Veteran. The Board also notes that in the June 2012 rating decision, the RO granted service connection for cervical spine degenerative disk disease, evidently as a result of the in-service motor vehicle accident. Private records include an MRI report of the Veteran's lumbar spine from Missouri Baptist Medical Center dated in April 2008, showing mild degenerative disc protrusion and degenerative facet arthropathy as well as protrusion of disc into the inferior nerve root canal on the left at L4-L5 for which clinical correlation was recommended. Other private records include treatment records from the Washington University School of Medicine's Pain Management Center (PMC) during the period of April 2008 to November 2010, which reflect a history of the Veteran complaining of severe back pain during sleeping and performing certain physical tasks. These treatment records also indicate that the Veteran was diagnosed by Dr. Dave with lumbar degenerative disk disease and left sciatica. The Veteran was treated with epidural steroid injections. VA outpatient records from January 2012 indicate that the Veteran was diagnosed with disc bulges at L3-L4 and L4-L5. In his October 2010 application to reopen his claim, the Veteran, through his representative, asserted that he injured his lower back (L4-L5) when he was involved in an automobile accident during service and that he currently had pain radiating down his left lower extremity. Thereafter, in a statement included with his substantive appeal received May 2014, the Veteran asserted that since he was involved in the auto accident in February 1976 he experienced various levels of pain and disability due to an injury to his L4-L5 disc, including radiculopathy of his left lower extremity. The Veteran also asserted that his lumbar degenerative disc disease was diagnosed by VA. Finally, the Veteran asserted that his symptoms ranged from painful limbs to pain so severe that he could not walk 10 steps without assistance. When considered with the previous evidence of record, the additional medical records and statements of the Veteran since the 1976 rating decision constitute new and material evidence to reopen the claim of service connection for a low back disability, as they demonstrate a diagnosis and symptoms of a lower back disability. This evidence relates to an unestablished fact necessary to substantiate the claim, namely, evidence that the Veteran has a current diagnosis of a lower back disability. The RO previously denied the claim on the bases that there was no evidence that the Veteran had a lower back condition. The new evidence is material as it clearly establishes that the Veteran currently has a lower back disability. Moreover, the Veteran has attested to the longstanding nature of his low back symptoms, which were traceable to his in-service motor vehicle accident. This evidence, which is presumed credible, also relates to an unestablished fact necessary to substantiate the claim, that is, a nexus linking the current low back disability to an injury or event in service. Accordingly, the claim of service connection for a lower back condition must be reopened. ORDER The appeal to reopen a claim of service connection for a lower back disability is granted. REMAND Prior to considering the claim of service connection for a lower back disability on the merits, further development of the record is necessary to comply with VA's duty to assist in the development of evidence pertinent to the claim. 38 C.F.R. § 3.159. To begin, the Veteran should be afforded a VA medical examination to determine the etiology of his currently diagnosed lumbar degenerative disk disease and left sciatica, to include whether it is related to the motor vehicle accident in service. He asserted that he has experienced symptoms of his lower back condition ever since the February 1976 auto accident. This history of symptoms related to his lower back condition is also reflected in the private treatment records from PMC. As discussed by the Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided to the Veteran in a disability compensation claim when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2). Here, the Veteran is currently diagnosed with a lower back condition, and has asserted that this condition is the result of an incident in service (i.e. the February 1976 auto accident). Thus, VA medical examination is necessary to provide an opinion as to whether the Veteran's lower back condition is related to the February 1976 auto accident. Also, the Veteran signed a medical release in December 2010 authorizing VA to obtain from BJC-Sunset Hills treatment records to include the results of X-rays; the treatment period is listed as extending from January 2007 to December 2008. No such records from BJC-Sunset Hills have been associated with the claims file since the Veteran's release was submitted. Similarly, the Veteran signed a release in December 2010 authorizing VA to obtain from Missouri Baptist Hospital his treatment records for the period from January 2008 to December 2008. Although the results of a April 2008 MRI from Missouri Baptist Hospital has been associated with the claims file, no other records of the Veteran's treatment during the applicable period has been included with the file. Accordingly, the case is REMANDED for the following action: 1. Secure complete clinical records of the evaluations and treatment afforded to the Veteran from BJC-Sunset Hills and Missouri Baptist Hospital during the period from January 2007 to December 2008. 2. Thereafter, arrange for a VA orthopedic examination of the Veteran to determine the likely etiology of his current lower back disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The examiner should consider, and comment upon as necessary, the following: (a) In a statement submitted along with his substantive appeal in May 2012, the Veteran asserted that the initial evaluation of his injuries resulting from the February 1976 auto accident as a neck/whiplash injury was an oversight and that he did report lower back pain injury at that time. Furthermore, he asserted that the symptoms of his current back injury began immediately after the auto accident. (b) STRs show the Veteran was involved in a motor vehicle accident in February 1976 with comments focusing on his neck only. In June 1976, he noted his medical condition had not changed since his separation examination in January 1976, when his spine was evaluated as normal. (c) A VA examination report in July 1976 shows that the Veteran had no back complaints although his reported history noted a recent back and whiplash injury. His diagnosis on the exam was "no residuals of back and neck whiplash observed." (d) Post-service private treatment records indicate that the Veteran reported a history of symptoms of degenerative disk disease beginning in 2008. In addition, private treatment records document a diagnosis of lumbar degenerative disk disease and left sciatica. Based on examination/interview of the Veteran and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50% or better probability) that the Veteran's current back disability was in whole or in part incurred in or aggravated during active service. The rationale for all opinions offered should be provided. 3. After completing the above, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. 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 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs