Citation Nr: 1605095 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 14-23 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for a low back disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1973 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic Virtual VA and Veterans Benefit Management System (VBMS) claims files. The Veteran's appellant brief is located in VBMS. All records are now in these electronic systems. The issue of entitlement to service connection for a low back disorder is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In a March 2005 rating decision, the RO denied service connection for a low back disorder. New and material evidence was not received within the one-year appeal period, and the Veteran did not appeal the decision. 2. The evidence received since the March 2005 rating decision became final relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for a low back disorder. CONCLUSIONS OF LAW 1. The March 2005 rating decision that denied service connection for a low back disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2015). 2. The evidence received since the March 2005 rating decision is new and material, and the claim of entitlement to service connection for a low back disorder is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist To the extent that the action taken below is favorable to the Veteran, further discussion of VA's duties to notify and assist is not required at this time. See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001). Laws and Regulations If a claim of entitlement to service connection is denied by an RO decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final RO or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis In March 2005, VA denied entitlement to service connection for a low back disorder disorder because the most probative evidence indicated the Veteran did not meet the criteria for entitlement to service connection for a low back disorder. The Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302, 20.1103. The Board notes that the RO reopened the claim for service connection for a low back disorder but denied the claim on its merits. On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claim. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The evidence received since the March 2005 rating decision includes a VA examination that shows degenerative arthritis of the thoracolumbar spine. See April 2014 VA Examination. It also includes a June 2011 statement from the Veteran describing an in-service low back injury and reporting continuous low back symptoms since that injury. This evidence contributes to a more complete picture surrounding the origin of the Veteran's disability and the current extent of that disability. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim for service connection for low back disorder are met. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. The appeal is allowed to this extent. REMAND The Veteran seeks entitlement to service connection for a low back disorder. He has a current diagnosis of degenerative arthritis of the thoracolumbar spine. See April 2014 VA Examination. A remand is needed to obtain outstanding treatment records. An April 2003 Social Security Administration (SSA) decision determined the Veteran had lumbar degenerative disc disease and lumbar facet syndrome based on an assessment by SSA's Disability Determination Service physicians, and medical records from Dr. JW from April 1998 to June 1998; from Northeast Alabama Spinal Clinic from June 1998 to March 1999; and a medical report from Dr. GW at Anniston Medical Clinic in August 2001. The SSA decision named these records in a list of exhibits for its decision, but these treatment records are not included in the SSA record and are not part of the Veteran's claims file. VA did attempt to obtain the Northeast Alabama Spinal Clinic records but was unable to do so, and the Veteran has indicated that this clinic is no longer in service. See December 2004 VA Development Letter; January 2005 Veteran Statement. The SSA list of exhibits included additional medical records that are not part of the Veteran's claims file, but are not relevant to the current claim. Pursuant to the duty to assist, the Board finds that the complete SSA records, including the medical records on the list of exhibits for the SSA decision, should be requested, as they may be relevant to the Veteran's claim. See 38 C.F.R. § 3.159(c)(2) (2015); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Additionally, if VA is unable to obtain the treatment records from SSA that include Dr. JW from April 1998 to June 1998, and Dr. GW at Anniston Medical Clinic in August 2001, VA should attempt to obtain them from Dr. JW and Dr. GW with the assistance of the Veteran. A remand is also needed to obtain an additional medical opinion from the April 2014 VA examiner. The examiner concluded the Veteran's low back disorder was less likely than not related to his service because imaging of the spine from 2012 to 2014 revealed only mild degenerative changes and no evidence of trauma. The examiner did not address the relevance, if any, of the imaging of the lumbosacral spine that showed degenerative disc disease as early as January 2003, or the Veteran's history of seeking treatment for low back pain. See, e.g., August 1999 VA Treatment Records. The examiner also did not address the relevance, if any, of the lay statements reporting that the Veteran's low back pain began after an in-service injury. See, e.g., June 2011 Veteran Statement; September 2004 Lay Statement; September 1977 Claim for Compensation. Any additional, relevant treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. With the assistance of the Veteran as necessary, obtain any outstanding, relevant treatment records, to include a complete copy of the medical records relied upon in the SSA decision to grant the Veteran benefits; and, if not included in any successfully obtained SSA records, obtain treatment records from Dr. JW from April 1998 to June 1998, and from Dr. GW at Anniston Medical Clinic in August 2001. All attempts to obtain records should be documented in the claims folder. 2. After any additional records are obtained and associated with the claims file, forward the claims file to the April 2014 VA examiner, or another appropriate examiner, to obtain an additional opinion concerning the etiology of the Veteran's low back disorder. The examiner must be provided access to the Veteran's claims files, included in his VBMS and Virtual VA files. The examiner should indicate in the opinion that all pertinent records were reviewed. Following a review of the Veteran's claims file, the examiner must opine as to whether it is at least as likely as not (50 percent or greater possibility) that any low back disorder is etiologically related to service. The examiner must address the relevance, if any, of the Veteran's history of treatment for back pain, and the January 2003 lumbosacral spine imaging that showed degenerative disc disease. The examiner must also address the relevance, if any, of the lay statements, as early as September 1977, that his low back pain began during service in 1974. A complete rationale must be provided for these opinions. 3. After completing the actions detailed above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs