Citation Nr: 1620426 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 14-03 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for Achilles tendonitis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and K.E. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1976 to December 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, a videoconference hearing was held before the undersigned, and a transcript is in the record; from the date of the hearing, the record was held open for 60 days in order to allow for the submission of additional evidence for consideration. The Veteran had also initiated appeals regarding whether new and material evidence had been received to reopen claims of service connection for heart murmur and for pulmonary artery disability. However, following the issuance of a January 2014 statement of the case, the Veteran specifically excluded these issues on her January 2014 VA Form 9 and did not file a timely substantive appeal with regard to either of these issues. Consequently, those matters are not before the Board. The issues of service connection for a back disability (on de novo review) and whether new and material evidence has been received to reopen a claim of service connection for Achilles tendonitis are being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on her part is required. FINDINGS OF FACT 1. An unappealed June 2006 rating decision denied the Veteran service connection for a back disability (claimed as back pain), finding in essence that there was no evidence that she had a current diagnosis of a back disability. 2. Evidence received since the June 2006 rating decision suggests that the Veteran has a current diagnosis of a back disability; relates to an unestablished fact necessary to substantiate the claim of service connection for a 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 a back disability may be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim outlined below. However, inasmuch as this decision reopens the claim of service connection for a back disability, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless with regard to this matter. Legal Criteria, Factual Background, and Analysis A claim which is the subject of a prior final rating decision may be reopened if new and material evidence is received. 38 U.S.C.A. §§ 5108, 7105. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of establishing the claim. 38 C.F.R. § 3.156(a). The Court has held that the phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. A June 2006 rating decision denied the Veteran's claim of service connection for a back disability (claimed as back pain) essentially on the finding that there was no evidence that she had a current diagnosis of a back disability. She was furnished notice of the June 2006 determination and of her appellate rights, and the June 2006 rating decision became final when she did not appeal that decision or submit new and material evidence within one year following notice. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. Evidence received since the June 2006 rating decision includes the report of a January 2011 private MRI of the Veteran's lumbar spine, which revealed mild degenerative disc changes at L3-L4. As service connection for a back disability was previously denied on the basis that there was no evidence that the Veteran had a current diagnosis of a back disability, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to show that she has a current diagnosis of a back disability. The aforementioned evidence indicates that she does have a current diagnosis of a back disability (manifested by degenerative disc changes). For purposes of reopening, this evidence is deemed to be credible. It relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability, and raises a reasonable possibility of substantiating that claim (particularly in light of the low threshold standard for reopening endorsed by the Court in Shade, supra). Therefore, the additional evidence received is both new and material, and the claim of service connection for a back disability may be reopened. 38 U.S.C.A. § 5108. ORDER The appeal to reopen a claim of service connection for a back disability is granted. REMAND On review of the record, the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA. Service Connection for a Back Disability The Veteran contends that she currently suffers from a back disability which began during her active service. On service enlistment examination in April 1976, the Veteran's spine was evaluated as normal. Thereafter, her service treatment records document multiple complaints of back pain. On her service separation examination in July 1994, it was noted that she had a diagnosis of mechanical LBP (low back pain); on a contemporaneous July 1994 Report of Medical History, it was noted that she had had recurrent low back pain since 1987 and mechanical LBP. Post-service, the first medical evidence of record pertaining to the Veteran's back consists of an April 1996 private treatment report which noted her complaint of low back pain. A January 2011 private MRI of her lumbar spine revealed mild degenerative disc changes at L3-L4. At her December 2015 hearing, the Veteran's representative testified that the Veteran did not file an initial claim for service connection until 2005 (i.e., more than 10 years after her service discharge) because she did not know that she could file such a claim. The Veteran also testified at her December 2015 hearing that she was currently seeing a doctor (Dr. Qureshi) at a private facility (Arkansas Spine and Pain) and that she had undergone a procedure the night before where she was diagnosed with sciatica. On remand, all available treatment records pertaining to the Veteran (to include from Dr. Qureshi at Arkansas Spine and Pain) should be secured, and the Veteran should be afforded a VA examination with medical opinion addressing any relationship between any current back disability and any incident of her military service. New and Material Evidence to Reopen Claim of Service Connection for Achilles Tendonitis A June 2006 rating decision denied the Veteran's claim of service connection for Achilles tendonitis (claimed as tendonitis) essentially on the finding that there was no evidence that she had a current diagnosis of Achilles tendonitis. She was furnished notice of the June 2006 determination and of her appellate rights, and the June 2006 rating decision became final when she did not appeal that decision or submit new and material evidence within one year following notice. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. As service connection for Achilles tendonitis was previously denied on the basis that there was no evidence that the Veteran had a current diagnosis of such disability, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to show that she has a current diagnosis of Achilles tendonitis. At present, no new and material evidence has been submitted to show that the Veteran has had a diagnosis of Achilles tendonitis at any time during the period of the current claim (which was filed in November 2010). A November 2010 private treatment record noted her complaint of low back pain radiating to the right foot, but no diagnosis pertaining to the foot was noted. A December 2010 private treatment record noted that she had had foot symptoms/injuries as well as stress fractures of both feet documented in her service treatment records, but that there was "no evidence of this happening nor any complaints given to that subject" at the current examination. Nevertheless, the Board notes that the Veteran has contended (both on her January 2014 VA Form 9 and at her December 2015 hearing) that she has received VA treatment for foot problems and Achilles tendonitis during the period of the current claim. Such outstanding reports of VA treatment are constructively of record and must be secured. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation she has received for her claimed disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all providers identified (to specifically all available records from Dr. Qureshi at Arkansas Spine and Pain). In addition, specifically secure complete copies of the clinical records of all updated (to the present) VA treatment and evaluation the Veteran has received for her claimed disabilities at any time, including since October 2011. 2. Arrange for a spine examination of the Veteran to ascertain the nature and likely etiology of any current back disability. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please identify (by diagnosis) each back disability found during the course of this appeal (since November 2010). All pertinent diagnoses already of record must be addressed. (b) Is it at least as likely as not (a 50% or better probability) that such disability is related to any incident of the Veteran's military service? The examiner should specifically consider and address any pertinent service treatment records (including the findings pertaining to her back which were noted at her July 1994 service separation examination and on the July 1994 Report of Medical History), as well as the Veteran's contentions of continuity of symptomatology since service. The examiner must explain the rationale for all opinions, citing to pertinent evidence, supporting factual data, and medical literature, as appropriate. 3. The AOJ should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claims of service connection for a back disability (on de novo review) and whether new and material evidence has been received to reopen a claim of service connection for Achilles tendonitis. If any benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board. The Veteran 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). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs