Citation Nr: 1629971	
Decision Date: 07/27/16    Archive Date: 08/04/16

DOCKET NO.  13-24 814	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a disability of the lower back.

2.  Entitlement to service connection for a disability of the lower back.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


	(CONTINUED ON NEXT PAGE)

ATTORNEY FOR THE BOARD

M. Nye, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to April 1971.

This case comes to the Board of Veterans' Appeals (Board) from a June 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In its decision, the RO denied the Veteran's request to reopen a previously denied claim for service connection for a disability of his lower back.  The Veteran timely appealed that decision.

In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

The issue of service connection for a disability of the lower back 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 December 2009, VA denied entitlement to service connection for a low back disability; the Veteran did not file a notice of disagreement or submit new and material evidence within one year after he was notified of that decision.

2.  Evidence submitted since the December 2009 rating decision was unavailable to agency decisionmakers at that time and relates to unestablished facts necessary to establish the Veteran's claim for entitlement to service connection for a disability of the lower back.


CONCLUSIONS OF LAW

1.  The December 2009 rating decision denying entitlement to service connection for a disability of the lower back is final.  38 U.S.C.A. § 7105(c) (West 2014); 38°C.F.R. § 20.1103 (2015).

2.  Evidence received since the December 2009 rating decision is new and material and the previously denied claim 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

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  In this decision, the Board is granting the only claim being decided today.  Further discussion of the VCAA is therefore unnecessary.  See Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).

Analysis

Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c).

One exception to the general rule of finality is 38 U.S.C.A. § 5108, which provides that, if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  "New evidence means evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to establish 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 substantiating the claim."  38 C.F.R. § 3.156(a).

"In determining [whether evidence is new and material], the credibility of the evidence is to be presumed.  This presumption is made only for the purpose of determining whether the case should be reopened.  Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In a December 2009 rating decision, VA denied entitlement to service connection for a disability of the lower back.  The Veteran was notified of that decision in a letter which was mailed to the most recent address he provided to VA.  During the next year, the Veteran submitted additional statements with respect to separate claims for VA benefits.  But he did not express disagreement with the December 2009 decision, nor did he submit additional evidence about his claimed low back disability.  Because the Veteran did not file a notice of disagreement or submit new and material evidence within one year after he was notified that his claim was denied, the decision is final.  See 38 U.S.C.A. § 7105.

In December 2009, the claims file consisted of the Veteran's service treatment record, certain statements submitted by him describing his back disability, and post service treatment records from VA medical facilities.  According to the rating decision, the claim was denied because the evidence did not show that the back disability began during service or was otherwise related to service. 

Since December 2009, the Veteran has submitted statements from his wife and his brother.  The statement from his wife indicates that she and the Veteran have been married for twenty years and, throughout this time, she has witnessed his complaints of back pain.  According to the Veteran's brother, they shared a room when the Veteran returned from Vietnam in 1971.  The Veteran's brother explained that, during this time, he noticed the Veteran on the floor "because of the back pain that he suffered."   

The statements of the Veteran's wife indicate that the onset of his back pain began at least twenty years before the date of her statement (March 2012).  The statement of his brother indicates that his back pain was present when he returned from Vietnam.  At the time of the December 2009 rating decision, the statements of the Veteran himself were the only evidence suggesting a causal relationship between his military service and a current disability of the back.

Accepting the credibility of the newly submitted evidence for the purpose of determining whether new and material evidence has been received to reopen the claim, see Justus, 3 Vet. App. at 513, the statements of the Veteran's wife and brother relate to "an unestablished fact necessary to establish the claim" because the presence of a connection between the back disability and service is an essential element of the claim; both statements have a tendency to show that the required relationship existed; and they are not cumulative or duplicative because no third party witness statements suggesting the existence of the required nexus were available to agency decisionmakers at the time of the most recent prior denial of the claim.  See 38 C.F.R. § 3.156(a).  


ORDER

New and material evidence has been submitted to reopen a claim of entitlement to service connection for a disability of the lower back.  The appeal is allowed to this extent.


REMAND

In September 2012, the AOJ arranged for the Veteran's back and spine to be examined by a VA physician.  In a subsequent report, the examiner diagnosed degenerative disc disease with spinal stenosis.  The examiner acknowledged statements of the Veteran indicating that his back pain started when he was carrying heavy equipment as part of a mortar crew during his deployment to Vietnam. 

In the examiner's opinion, it is less likely than not that the Veteran's current back disability is related to service.  The report indicates that the examiner believed that the Veteran identified 2004 as the year "his problems with the back started . . ."  It is not clear whether he obtained this information from his interview with the Veteran or from information in the post-service medical records.  

In his report, the examiner wrote that the documents submitted by the Veteran "do not provide additional evidence of treatment during the period when the medical records are silent.  The records are silent for a period of approximately 33 years that would document continued complaints or treatment.  There is no history of documented continuing complaints or treatments to indicate a chronic disabling condition.  This is also true of any future evidence that might be submitted if it only addresses the current status, and not additional evidence of treatment sufficient to diagnose a chronic disabling condition."  

Because the AOJ ordered a medical opinion, the Veteran is entitled to an adequate opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  For at least two reasons, the September 2012 VA examination is inadequate and, although the Board regrets the necessary delay, the case must be remanded to obtain a new medical opinion.  First, the rationale for the examiner's opinion suggests that the Veteran was ineligible for service connection for his back condition because there was "no history of documented continuing complaints or treatments to indicate a chronic disabling condition."  

"While the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  An adequate opinion must address the relevant lay statements, including the statement of the Veteran's brother, which, in fairness to the examiner, was not received by VA until shortly after the date of the examination report.  
Moreover, in the opinion section of his report, the examiner described 2004 as the date the Veteran identified as the time his back problems began.  This is inconsistent with other information in the record.   Indeed, the "medical history" section of the same report indicates that the Veteran said "his back pain started in 1969 or 1970."  A radiology report dated December 2000 describes "a mild S-shaped scoliotic curvature in the dorsal spine.  On the lateral views, there is associated lordotic curvature in the mid dorsal spine and a slight increase in the kyphotic curvature at the thoracolumbar junction."  The radiologist's report added that, "Presumably, these changes are old."  Other private medical records note the presence of a minor lumbosacral strain in July 2002.  

A medical opinion may be inadequate if it rests on an inaccurate factual premise.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  Unfortunately, the medical opinion in this case is based on the probably inaccurate assumption that the Veteran's back problems started in 2004.

For these reasons, the issue of entitlement to service connection for a disability of the lower back will be remanded for a new medical opinion.

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims folder records of the Veteran's VA treatment since June 2013.

2.  Obtain an addendum opinion from the September 2012 VA examiner to determine the etiology of the Veteran's back disorder.  If the physician who conducted the earlier examination is not available, the AOJ should obtain the requested addendum opinion from another qualified health care professional.  The examiner must be provided access to the Veteran's claims folder, as well as any files placed in Virtual VA and the Veterans Benefits Management System.  If the requested opinion requires a new examination, a new examination should be arranged. 
In his or her review of the claims file, the examiner should pay particular attention to: 1) the December 2000 radiology report describing "associated lordotic curvature in the mid dorsal spine and a slight increase in the kyphotic curvature at the thoracolumbar junction." and further noting that, "Presumably, these changes are old"; and 2) the statement of the Veteran's brother noting complaints of back pain in 1971, shortly after the Veteran's discharge from active duty.

Then, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's lower back disability had its onset in or is otherwise medically related to service.  

The examiner should also provide an opinion as to whether the Veteran's back disability is related to service.  A complete rationale should be provided for all opinions offered and should specifically discuss the Veteran's claim that his current back disability developed when he was carrying heavy mortar equipment during his deployment to Vietnam.  If the examiner believes the Veteran has indicated that his back pain began at a later date, he or she should identify the source of this information.  The examiner is advised that, while the Veteran is not competent to state that he has suffered from degenerative disc disease since service, he is competent to state that he has had back pain since active duty.  The examiner is further advised that the absence of corroborating clinical records for back pain in 1970 and 1971 may NOT be the determinative factor.

3.  Then, readjudicate the issue on appeal.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the opportunity to respond before the case is returned to the Board for further appellate action.

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).




______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs