Citation Nr: 1606928 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 14-24 115A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In May 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the Virtual VA file reveals VA treatment notes. The remaining documents are duplicative of the evidence in the VBMS file. Additionally, the Board acknowledges that the Veteran has appealed the issue of entitlement to service connection for posttraumatic stress disorder (PTSD), but the RO has not yet issued a statement of the case (SOC) with respect to that issue. The Board's review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on this issue. As such, the Board will not accept jurisdiction over it at this time. 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 March 1977 rating decision, the RO denied the Veteran's claim of service connection for a back disorder. 2. The Veteran was notified of the March 1977 rating decision and of his appellate rights, but he did not appeal that determination. There was also no new and material evidence received within one year of that determination. 3. In a June 1990 rating decision, the RO continued the denial of the Veteran's claim of service connection for a back disorder. 4. The Veteran did not perfect an appeal of this rating decision. 5. The evidence received since the June 1990 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disorder. CONCLUSIONS OF LAW 1. The March 1977 and June 1990 rating decisions, which denied service connection for a back condition, are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2015). 2. The evidence received subsequent to the June 1990 rating decision is new and material, and a claim for service connection for a low back disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claim of service connection for a back disorder was considered and denied by the RO in a rating decision dated in March 1977 on the basis that the Veteran did not have any complaints, treatment, or diagnoses pertaining to his low back during active service. The Veteran was notified of that decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2015). The Veteran's claim of service connection for a back disorder was considered and denied by the RO in a rating decision dated in June 1990 on the basis that the Veteran did not have any complaints, treatment, or diagnoses pertaining to his low back during active service. The Veteran submitted a notice of disagreement, but did not submit a substantive appeal after a January 1991 statement of the case. In general, rating decisions that are not timely appealed are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. It is noted that the RO received notice that the SOC was undeliverable, but the letter had been sent to the most recent address of record for the Veteran. Indeed, it was the address listed on the Veteran's June 1990 notice of disagreement. Not until November 1991 did the Veteran's representative notify VA that the Veteran had moved. See Clark v. Principi, 15 Vet. App. 61, 63 (2001) (noting that there is a rebuttable presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including mailing notices); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (noting that the presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record). Additionally, the claims file does not reflect any other potential addresses of record. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000). Therefore, the rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2015). The evidence of record at that time of the rating decision in June 1990 included the Veteran's service treatment records. Also of record were medical records indicating treatment for a low back disorder. In that decision, the RO found that there was no evidence of treatment for, complaints of, or a diagnosis of a low back disorder while on active duty. The evidence associated with the claims file subsequent to the June 1990 rating decision includes various statements from the Veteran, June and July 1969 correspondence between the Veteran and his mother, private treatment records, VA treatment records, a January 2015 VA examination report, and testimony from the May 2015 Board hearing. The majority of this evidence is new, in that it was not previously of record and is not cumulative or redundant of the evidence already considered. With regard to whether the evidence is material, the new evidence includes various private and VA treatment records that include diagnoses of lumbosacral strain and degenerative arthritis of the lumbar spine. The Veteran has contended that he injured his low back while pulling a settling lead out of an auxiliary tank on the USS Tallahatchie County in June 1968, and he reinjured his back lifting weights in July 1969. During the May 2015 Board hearing, the Veteran testified that he was on bedrest after each incident. He indicated that he was treated by a corpsman after he injured his back in 1969. In an April 2014 private medical opinion, an orthopedic surgeon opined that there was a "causal nexus between the work incident described in June 1968 and a subsequent history of intermittent nonradiating back pain followed by low back and radicular pain up through to the present." Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim of service connection for a low back disorder. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back disorder is reopened. REMAND Remand is necessary to obtain any outstanding private treatment records, and to obtain a VA medical opinion to address the Veteran's service connection claim for a low back disorder. During a January 1994 private orthopedic evaluation, the examining orthopedist noted that the Veteran had been evaluated by another private orthopedist in 1986, and that the Veteran was unable to continue his employment at a naval shipyard as a truck driver and dispatcher in 1988 due to his low back disorder. During the January 2015 VA examination and the May 2015 Board hearing, the Veteran reported that he had aggravated his low back injuries from service in work-related injuries while he was working at the naval shipyard. In addition, in the January 2015 VA examination report, the VA examiner referenced a 1996 x-ray that showed mild age-related degenerative arthritis. However, treatment records pertaining to these post-service injuries and the 1996 x-ray report have not been associated with the Veteran's electronic claims file. On remand, requests should be made for any outstanding private treatment records, to specifically include any treatment pertaining to work-related injuries following service. In addition, a VA opinion should be obtained to address the etiology of all claimed low back disorders. The examiner should address the Veteran's contentions that he injured his low back twice during service, and that he aggravated the injuries following service. In addition, the examiner should specifically address the April 2014 private medical opinion, in which an orthopedic surgeon opined that there was a "causal nexus between the work incident described in June 1968 and a subsequent history of intermittent nonradiating back pain followed by low back and radicular pain up through to the present." Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a low back disorder. A specific request should be made to obtain identifying information pertaining to treatment from a private orthopedist in 1986, records pertaining to work-related injuries following service, and a 1996 x-ray that showed mild age-related degenerative arthritis. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Obtain any outstanding and relevant VA treatment records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After completing the foregoing development, return the claims file and a copy of this remand to the January 2015 VA examiner, if available, to obtain a clarifying opinion to determine the nature and etiology of any low back disorder that may be present. If an examination is warranted, one shall be provided. The examiner is requested to review all pertinent records associated with the claims file, including the any service treatment records and service personnel records that are obtained, post-service medical records (including treatment records related to work-related injuries following service and private orthopedic evaluations), and lay statements. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must opine as to whether it is at least as likely as not that the Veteran has a current low back disorder that is related to his military service, including any injuries therein. The examiner must specifically address the following: 1) the Veteran's contentions that he initially injured his low back while pulling a settling lead out of an auxiliary tank on the USS Tallahatchie County in June 1968, and that he reinjured his back lifting weights in July 1969; 2) the Veteran's contentions that his work-related injuries at a naval shipyard following service aggravated his prior in-service injuries; and 3) the April 2014 private orthopedic surgeon's opinion of record. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. 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 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 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs