Citation Nr: 1601779 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 09-26 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, claimed as adjustment disorder with depressed mood. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The appellant served on in active duty for training (ACDUTRA) in the National Guard from June to August 1979, and from January to July 1980. This case is before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appellant did not appear for a scheduled October 2014 Board videoconference hearing. The RO in a June 2009 statement of the case reopened the claims, but on appeal the question whether the claims should be reopened is a determination the Board is required to address in the first instance. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The claims are indicated above on the title page as petitions to reopen. The appellant previously was represented but that representative withdrew from the case in 2014. The appellant has not chosen to select another representative by VA Form 21-22, including after the Board's attempt to clarify representation. The reopened claim of entitlement to service connection for back disability, and the petition to reopen the claim of entitlement to service connection for a psychiatric disorder are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A December 1980 rating decision denied entitlement to service connection for a low back disorder, which was not appealed. 2. An unappealed August 1993 rating decision denied a petition to reopen the claim of entitlement to service connection for a low back disorder. 3. Since the August 1993 rating decision additional evidence has been provided regarding an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 1993 rating decision denying a prior petition to reopen service connection for a low back disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2015). 2. New and material evidence has been submitted to reopen a claim of entitlement to service connection for low back disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, and 5126, prescribes notice and development obligations upon VA involving a claim for compensation benefits. The Board is reopening the claim of entitlement to service connection for a back disorder but remanding the reopened claim. Hence, the Board will defer addressing whether VA has fully complied with the VCAA. A December 1980 rating decision denied the appellant's original claim of entitlement to service connection for residuals of a back injury, citing that while the appellant was diagnosed in service with paraspinal spasm in February 1980, this was neither present on separation examination, nor was the disorder noted during a VA Medical Center hospitalization from August to September 1980. The RO denied service connection finding primarily no evidence of a post-service disability, and in light of the normal finding at separation. The decision was not appealed, and it is final. 38 U.S.C.A. § 7105. An August 1993 rating decision denied a petition to reopen the claim, finding that none of the evidence since the last RO denial referred in any way to a low back disability. The decision was not appealed, and is final. Id. The Board will consider the evidence of record since the August 1993 rating decision, as this constituted the last final denial of the appellant's claim. See generally Juarez v. Peake, 21 Vet. App. 537, 542 (2008) (in adjudicating a petition to reopen consideration must be provided to evidence received since the last final rating decision on a claim, whether a denial of the original claim or a petition to reopen). When a claim to reopen is presented VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is now the April 2009 statement of Dr. J.K., a private osteopath, that "the changes in [the appellant's] lumbar spine on the MRI exam are typical changes that would be present from the type of injury he sustained 29 years ago." This statement presents a reasonable possibility of substantiating the claim as indicating disability due to service, even if as written it does not definitively prove the claim. New and material evidence has been received to reopen this matter. The claim is reopened, and is discussed in the remand section below, where the Board will direct further development of the evidence. ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. REMAND Regarding the question of entitlement to service connection for a low back disability, an attempt should be made to locate records of an inservice hospitalization at Walter Reed Army Hospital that the appellant reportedly had in January or February 1980 for back problems. Thereafter the case should be returned to the March 2010 VA examiner for a supplemental opinion addressing and commenting on the April 2009 osteopath's opinion that changes seen on an MRI were inconsistent with an injury sustained 29 years prior. Regarding the petition to reopen the claim of entitlement to service connection for a psychiatric disorder the appellant's records pertaining to receipt of Social Security Administration disability benefits should be obtained. See Murincsak v. Derwinski, 2 Vet. app. 363 (1992). Also, the original December 1980 rating decision referenced a VA hospitalization for mental health problems from August to September 1980, which is not readily found in the current claims file and so records of which should be requested. See 38 C.F.R. § 3.159(c) (indicating what development actions may be completed on a petition to reopen a previously denied claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Social Security decision on the claim for benefits with that agency, along with all medical records as the basis for that determination. Then associate all documents received with the Veterans Benefits Management System (VBMS) claims file. If the AOJ cannot locate all relevant Federal government records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any Federal government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it was unable to obtain; (b) explain the efforts VA has made to obtain the evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given the opportunity to respond. 2. Contact the Minneapolis VA Medical Center and request copies of records of any hospitalization of the appellant from August to September 1980; and/or any hospitalization during the ensuing ten-year period. If the AOJ cannot locate all relevant Federal government records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any Federal government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it was unable to obtain; (b) explain the efforts VA has made to obtain the evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given the opportunity to respond. 3. Contact Walter Reed National Medical Center in Bethesda, Maryland, and Kimbrough Army Hospitals, in Fort Meade, Maryland, and request copies of any treatment records pertaining to care for a back disorder in January or February 1980. If no records are available at this location, then contact the proper records depository for the Walter Reed Army Medical Center and request these same records, where the appellant stated that he may have instead received relevant treatment. If the AOJ cannot locate all relevant Federal government records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any Federal government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it was unable to obtain; (b) explain the efforts VA has made to obtain the evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given the opportunity to respond. 4. Thereafter return the claims folder to the VA examiner who conducted the March 2010 examination of the appellant's spine and request a supplemental opinion. The examiner should review the April 2009 private osteopath's opinion with respect to the likely cause of the appellant's current back disorder, as well as any additional relevant evidence that has since been obtained (in response to the development recently requested). The examiner must provide a medical opinion addressing whether any diagnosed back disorder was at least as likely as not incurred in active military service, or is otherwise related to his service. If that the March 2010 orthopedic examiner is not available, or is no longer employed by VA, obtain an opinion from another qualified practitioner that addresses the inquiries set forth. The examiner must provide a complete and fully reasoned rationale for any opinion offered. 5. Then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 6. Then after ensuring that no additional development is in order regarding either issue, readjudicate the claims on appeal based upon all additional evidence received. If any benefit sought on appeal is not granted, the appellant should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). These claims 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs