Citation Nr: 1637400 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 13-12 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a low back disorder, including mechanical low back strain. 2. Entitlement to service connection for a low back disorder, including mechanical low back strain. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 2002 until August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2016, the Veteran presented testimony before the undersigned Veterans Law Judge at a Travel Board hearing. A copy of that transcript has been associated with the claims folder. The Veteran originally claimed entitlement to service connection for low back pain, and the medical records reflect varying low back diagnoses. Therefore, the Board has recharacterized the original claim as one of entitlement to service connection for a low back condition, generally. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims processing system. Virtual VA contains documents that are duplicative of what is in VBMS. 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. A July 2003 rating decision denied entitlement to service connection for mechanical low back pain. The Veteran did not appeal and did not submit new and material evidence within one year. 2. The evidence associated with the file after the July 2003 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disorder. CONCLUSION OF LAW New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with the claim decided below are moot. New and Material Evidence The Veteran seeks to reopen a previously denied claim of entitlement to service connection for a low back disorder. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2015). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 substantiating the claim. 38 C.F.R. § 3.156 (2015). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Rather, a defect of congenital, familial or hereditary origin by its very nature pre-exists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If the defect is congenital, therefore, the presumption of sound condition at service entrance does not attach. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). If it is determined that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have pre-existed service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. There is a distinction under the law between a congenital or developmental disease and a congenital defect for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). In a July 2003 rating decision, the RO denied service connection for mechanical low back pain based on a finding that the Veteran had a pre-existing congenital back defect for which he was treated on one occasion in service, and that did not result in a permanent residual or chronic disability. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the July 2003 decision includes the following: the Veteran's 2002 entrance examination and report of medical history showing normal findings for the back; the Veteran's service treatment records (STRs) that include January 2003 x-ray testing revealing a congenital posterior fusion defect at S1, February 2003 complaints of back pain following a fall, March 2003 physical therapy notes reporting that the Veteran's back pain had its onset following a fall in service, and March 2003 x-ray testing results noting that the low back was normal except for exaggerated lumbar lordosis; and April 2003 medical board proceedings noting that the Veteran had mechanical low back pain since November 2002 that was incurred during a period in which he was entitled to base pay and did not exist prior to service. Evidence submitted after the 2006 decision includes the following: 1) January 2009 private medical records noting that the Veteran had a history of fracture and intermittent pain following a fall in 2002, and reporting diagnoses of spondylosis and disc protrusion of the low back; 2) the Veteran's September 2009 claim in which he reported that he injured his back in Germany and experienced chronic back symptoms thereafter; 3) November 2009 private treatment records from Dr. WF noting that the Veteran had low back pain with a history of S1 fracture in the military, spondylosis, and disc protrusion; 4) a November 2010 VA examination report noting that the Veteran had a current diagnosis of mechanical low back strain that was unrelated to his period of active service; and 5) the Veteran's June 2016 Travel Board hearing testimony that he did not have any back problems that pre-existed service, and that his back symptoms had their onset in service following a fall. The Board finds that new and material evidence has been presented. The evidence, including the 2009 private medical records and the Veteran's lay testimony, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - specifically, evidence of a back injury that was incurred in service, and evidence that the Veteran did not have a pre-existing back condition. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. ORDER New and material evidence having been received; the claim of entitlement to service connection for a low back disorder is reopened. REMAND Regarding the Veteran's underlying service-connection claim, remand is required to secure an adequate opinion regarding the etiology of the Veteran's low back disorder, and to obtain outstanding and relevant treatment records. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). First, the VA examination report and opinions in this case are inadequate. The Veteran underwent a VA spine examination in November 2010. At that time the Veteran reported that he fell off a vehicle in service. The Veteran endorsed chronic symptoms of pain and stiffness occurring daily. The examiner diagnosed mechanical low back strain. The examiner then opined that the Veteran's back condition was likely unrelated to his period of service. In support of that opinion, the examiner noted that other than one incident of back pain, there was no other evidence relating to a back condition in service. The examiner reasoned that there was no evidence of a significant abnormality to indicate any chronic disability as a result of the in-service back injury. Thus, the examiner concluded the currently diagnosed mechanical low back strain was unrelated to the in-service back injury. The Board finds the opinion of the 2010 examiner to be inadequate, as it is internally inconsistent and failed to consider the Veteran's competent statements regarding continuity of symptomatology since service. Although the examiner noted ongoing treatment for back pain, chronic symptoms, and diagnosed mechanical low back strain; the examiner nevertheless reached the seemingly contradictory conclusion that there was no evidence of a significant abnormality to indicate a chronic disability related to the in-service back injury. In this regard, the examiner also failed to adequately consider the Veteran's competent lay statements regarding onset and continuity of symptomatology. Further, the examiner did not address conclusively whether the Veteran had a congenital condition of the low back. Thus, remand is necessary to secure an adequate opinion. Second, on remand, efforts should be made to identify and associate with the claims folder any outstanding and relevant VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. 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 representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. 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. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of his claimed low back disorder. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is requested to provide the following information and opinions: a) Identify all currently present low back disorders. If congenital posterior fusion defect at S1 or spondylosis are not diagnosed, provided a supporting explanation and address the prior diagnoses of record. b) Is the Veteran's congenital posterior fusion defect at S1 a congenital disease or defect? For VA purposes, a disease is any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. A defect is defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. c) If the posterior fusion defect at S1 is a congenital disease of the low back, the examiner must provide an opinion as to whether it was aggravated (progressed during service at a greater rate than normally expected). d) If the posterior fusion defect at S1 is a congenital defect of the low back, the examiner must provide an opinion as to whether there was a superimposed disease or injury due to the Veteran's period of active service. e) For each identified disorder that is not a congenital disease or defect, the examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the low back disorder had its onset in, or is otherwise related to, the Veteran's active service. In providing the above information and opinions, the examiner is requested to specifically address the following the Veteran's competent testimony regarding the onset and continuity of low back symptomatology following reported in-service injuries. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. 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). 6. 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 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs