Citation Nr: 1618705 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 13-26 146 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence to reopen a claim of service connection for a back disability (claimed as low back pain) has been received. 2. Entitlement to service connection for a back disability, to include degenerative disk disease, myositis, and scoliosis. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1997 to February 2004. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2012 rating decision in which the RO, inter alia, reopened the Veteran's previously denied claim for service connection for lumbago but denied service connection on the merits. The Veteran filed a notice of disagreement (NOD) in January 2013. A statement of the case (SOC) was issued in July 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2013. The Board observes that in his substantive appeal, the Veteran indicated that he wanted to appear at a Board videoconference hearing. In April 2016 correspondence, the Veteran requested to withdraw his hearing request. Therefore, the Board deems the hearing request properly withdrawn. See 38 C.F.R. § 20.704(d) (2015). As regards characterization of the appeal, the Board notes that, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection.s. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Bartnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable decision on the request to reopen-the Board has characterized the appeal as now encompassing both matters set forth on the title page. With respect to the de novo service connection claim, although the Ro characterized the claim as one for lumbago, the Board has expanded the claim to include consideration of various other lumbar spine diagnoses of record, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009)).As a final preliminary matter, the Board notes that a peer-reviewed medical article was associated with the claims file after the July 2015 Supplemental Statement of the case. The Board observes that section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration. In the instant case, the Veteran's substantive appeal was received in September 2013, and he has not requested initial AOJ consideration of the evidence. As such, a waiver of initial AOJ consideration is not required. However, the AOJ will have opportunity to review the additional evidence received on remand (discussed below), and the Veteran is not prejudiced by the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. This appeal is now being processed utilizing the paperless, electronic Virtual Benefits Management System (VBMS) and Virtual VA (VVA) claims processing systems. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action on this claim, prior to appellate consideration, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. In a July 2008 decision, the RO declined to reopen the Veteran's claim for service connection for a back disability. Although notified of the denial in a letter dated that same month, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. New evidence associated with the claims file since the July 2008 denial relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2008 rating decision that declined to reopen the claim for service connection for a back disability is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. As additional evidence received since the RO's July 2008 denial is new and material, the criteria for reopening the claim for service connection for a back disability are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Given the favorable disposition of the Veteran's request to reopen the claim for service connection for a back strain, the Board finds that all notification and development actions needed to fairly adjudicate this matter have been accomplished. At the time of the prior denial and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). By way of background, the Veteran's claim for service connection for low back pain was previously denied in a May 2004 rating decision. The pertinent evidence then of record consisted of his service treatment records, the Veteran's lay statements, and a January 2004 pre-discharge examination. The RO noted that, although the Veteran's service treatment records documented a complaint of low back pain, the January 2004 pre-discharge examination failed to reveal any diagnosed disability related to his back. On this basis, the RO denied the Veteran's claim. The RO informed the Veteran of this denial in a June 2004 letter, to which the Veteran did not respond. Subsequently, the Veteran petitioned to reopen his claim of service connection for low back pain in December 2007. In a July 2008 rating decision, the RO denied the petition to reopen because new and material evidence was not submitted in that it did not show a diagnosed back disability. The RO considered VA treatment records from January 2004 to August 2007 and March 2008 and May 2008 VA examinations, unrelated to the back claim. Although notified of the July 2008 denial in a letter dated that same month, the Veteran did not file a notice of disagreement with the July 2008 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims file within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Also, no Thus, the July 2008 rating decision became final based on the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran filed his claim to reopen his previously denied claim for service connection for low back pain in June 2011. Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law , "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 duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the 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 provisions of 38 U.S.C.A. § 5108 require a review of 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. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Pertinent evidence added to the claims file since the July 2008 rating decision includes the Veteran's private treatment records, August 2011 letters from E.W., J.L., and E.J., a June 2012 VA examination report and opinion, a January 2013 private opinion from Dr. J.Z., VA treatment records, a July 2013 VA addendum opinion, a peer-reviewed medical article, and the Veteran's lay statements. The Board finds that the above-described evidence provides a basis for reopening the Veteran's claim for service connection for low back pain. The evidence is "new" in that it was not before the RO at the time of the July 2008 final denial, and it is not duplicative or cumulative of the evidence previously of record. Moreover, the evidence is "material" in that it is so significant that it must be considered in order to fairly adjudicate the claim. Specifically, this evidence, demonstrates that the Veteran has a currently-diagnosed disorder related to his back, the reason for which service was denied in 2008. Furthermore, the private opinion of record opines that the Veteran's current back disorder is, in-fact, directly related to his military service, to include his alleged in-service injury. For these reasons, the Board finds that this additional evidence associated with the claims file is both new and, by itself or considered with previous evidence of record, so significant that it must be considered in order to fairly decide the merits of his claim. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a back disability. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence to reopen the claim for service connection for a back disability has been received, to this limited extent, the appeal is granted. REMAND The Board's review of the claims file reveals that additional AOJ action on the claim for service connection, on the merits, is warranted. The Veteran contends that he suffers from a back disorder as a result of training and lifting heavy objects during service. He also asserts that lying in a prone position with a ruck sack during service caused his back disability. The Veteran underwent a VA examination in June 2012 (opinion signed August 2012) to address the nature and etiology of his back disorder. The examiner stated that the Veteran's service treatment records showed a single entry documenting low back pain. The examiner also noted that the Veteran's Medical Evaluation Board examination did not mention any back condition. While acknowledging the Veteran's assertion that he was diagnosed with DDD, the examiner opined that there was insufficient evidence to support a diagnosis of degenerative disc disease of the lumbar spine given normal spine films conducted by the VA in January 2004, November 2010, and August 2011. The examiner further explained that the Veteran's DDD was a separate condition from that as described as low back pain in the January 2004 service treatment record. Subsequently, the Veteran submitted a June 2011 Magnetic resonance imaging (MRI) report which provided an assessment of mild degenerative disc disease, low back pain and spasm, and mild neural foraminal stenosis, and right leg pain. In light of the new submission, the AOJ requested an addendum opinion to specifically address the June 2011 MRI report. In a July 2013 addendum opinion, a VA physician concluded that the Veteran's diagnosis of DDD was inconsistent with the August 2011 VA MRI report and, hence, entitled to less probative weight. The July 2013 VA physician noted the Veteran's complaint of two-year intermittent back pain in a January 2004 service treatment record, but opined that lying prone with a ruck sack was not a sufficient traumatic mechanism of injury to produce DDD of the lumbar spine. However, subsequent to the examination, the Veteran submitted a June 2012 private x-ray report, which similarly indicated the presence of osteoarthritic changes in the anterior end plates of L3 extending into L4, as well as scoliosis, which was not considered. In an August 2015 statement, the Veteran, through his representative, contends that the July 2013 examiner's opinion that the Veteran's current back pain was related to a May 2011 work injury is belied by the fact that the Veteran renewed his back claim in December 2007, more than three years prior to his work injury. The Veteran also contends that he has self-treated his back pain with over-the-counter medicine. The Veteran's also asserts that because DDD was identified in the June 2011 MRI and osteoarthritis was confirmed in a June 2012 x-ray, his DDD likely pre-existed the May 2011 work accident since DDD develops over a long period of time. In support of his contentions, the Veteran submitted a peer-reviewed medical article which discussed a theory that "after an individual suffers a torsional (twisting) injury to the disc, the disc would generate in three stages." The stages were described as first, significant dysfunction caused by the acute back pain; second, instability at that particular vertebral segment and intermittent bouts of back pain, and; lastly, the body restabilizes the segment resulting in fewer episodes of back pain. In addition, the article stated that "studies show less back pain from degenerative disc disease in elderly adults (over 60 years) than in younger adults (30 to 50 year-olds), the studies also concluded that this process happened over a period of 20 to 30 years." Here, the July 2013 VA physician specifically indicated that lying prone with a ruck sack on is not a sufficient traumatic mechanism to produce DDD of the Veteran, however, the article suggests that a different type of injury, "torsional twisting," could also cause the disc to generate over a period of twenty to thirty years. The Veteran's contentions and additional medical evidence was not considered, the opinion Board finds that a remand for further medical opinion to consider the Veteran's contentions and further resolve the current discrepancy related to the Veteran's diagnoses of record. Hence, a remand for further examination to obtain an adequate opinion-based on full consideration of the Veteran's documented history and assertions, and supported by complete, clearly-stated rationale-is warranted. Notably, once VA undertakes the effort to provide an examination or opinion when developing a claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member Prior to obtaining further medical opinion in connection with this claim, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claim file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Denver VA Medical Center (VAMC), and that records from this facility dated through November 2015 are associated with the file; however, more recent records may exist. Hence, the AOJ should obtain all pertinent VA treatment records dated since November 2015. Regarding private treatment records, a May 2011 private treatment record noted that the Veteran was treated at an Urgent care. In addition, a December 2011 private treatment record indicated that the Veteran underwent an MRI related to a Workman's compensation claim a year prior, or approximately December 2010. Given the discrepancy on when the Veteran's sustained his work-related injury and such determination is pertinent to the merits of the claim, the AOJ should request treatment records related to the Veteran's work-related injury, to include treatment from Urgent Care. Therefore, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to include as regards private (non-VA) records), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Denver VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since November 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney requesting that the Veteran provide sufficient information and authorization, to obtain additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records, to include records from an Urgent Care or any other provider that rendered care for a back disability. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician, to obtain medical information as to the current nature and etiology of the claimed back disability. The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to each individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all diagnosed disability(ies) related to the Veteran's claimed back condition. This should include disability(ies) currently present or present at any time pertinent to the June 2011 claim-to include myositis (noted in May 2011 private treatment records), degenerative disk disease ( noted in June 2011 private treatment records), and osteoarthritic changes and scoliosis (noted in June 2012 private treatments-even if currently asymptomatic or resolved). Then, with respect to each such diagnosed disability, the physician should provide an opinion , consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, or is otherwise medically related to service. In rendering each requested opinion, the physician must consider and discuss all pertinent medical and other objective evidence, to include the peer-reviewed article submitted by the Veteran The as well as all lay assertions-to include the Veteran's assertions as to the onset and continuity of the Veteran's back symptoms during and since service, as well as the Veteran's report that he self-treated his symptoms shortly after service. The examiner should also address his contention that his DDD pre-existed his work-injury. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his assertions in this regard must be considered in formulating the requested opinion. If any lay assertions are discounted in any regard, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish the Veteran and his attorney an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2015). Department of Veterans Affairs