Citation Nr: 1751646 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-32 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for low back disability, characterized as a low back strain with nerve damage and, if so, whether service connection is warranted. WITNESSES AT HEARING ON APPEAL Appellant and J.W. ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from October 1976 to July 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that reopened and denied the claim of service connection for a history of low back strain/injury with claimed nerve damage. The Veteran and J.W. testified before the undersigned during a July 2017 travel Board hearing. A transcript of the proceedings is associated with the record. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. These records were reviewed in connection with the decision below. The issue of entitlement to service connection for low back disability, characterized as a low back strain with nerve damage, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for back strain (claimed as back injury and nerve damage) was denied in an October 2002 rating decision that was not appealed. 2. Evidence received since the October 2002 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final October 2002 decision, the criteria for reopening the claim for service connection for low back disability, characterized as a low back strain with nerve damage, are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Review of the file shows the previous denial of entitlement to service connection in October 2002 was based on a determination that the evidence failed to show that the Veteran had a current disability of the back that could be related to the one incident of back pain shown in service medical records. The October 2002 decision was not appealed nor was new and material evidence submitted within one year, accordingly, the determination is final. 38 C.F.R. §§ 3.156(b), 20.1103 (2017). The evidence received since the October 2002 decision includes in pertinent part a VA examination in March 2012 in which diagnoses of low back strain and lumbar radiculopathy, bilateral lower extremities, were noted. During this examination the Veteran reported three in-service injuries to the VA examiner; namely, when lifting a 300 pound fire pump, and he was taken by ambulance to base hospital and put on light duty for three days. The second injury involved removing a generator breaker. The third injury involved throwing ropes during re-fueling. As noted above, the Veteran also testified before the undersigned during a July 2017 travel Board hearing as to why service connection was warranted. Because such diagnosis and account of the in-service injuries were not present in October 2002, this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for low back disability, characterized as a low back strain with nerve damage, is granted. REMAND The Board is of the opinion that additional development is required before the Veteran's claim for service connection for low back disability, characterized as a low back strain with nerve damage, is decided. The Veteran stated in an October 2002 statement, and testified before the undersigned, that he was injured while service on the USS Peterson DD 969 and suffered a bulged disc in his low back which appeared on X-rays taken at the time. He furthered that, unfortunately, there was only one reference to the injury dated in July 1978 by a technician who "blew it off and sent [him] back to his ship." He also stated in the October 2002 statement that he applied for Social Security Administration (SSA) benefits four times but had been denied. The Board observes that the Veteran's service treatment records are incomplete. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. See Russo v. Brown, 9 Vet. App. 46 (1996). To this point, the Board finds that on remand, the AOJ must make as many requests as necessary to obtain the Veteran's SSA records and associate them with the electronic claims file. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). On remand, the AOJ must also attempt to obtain the Veteran's service personnel records and any ship or deck logs that may have been maintained aboard the Peterson DD 969 during his service to see if they have any information as to any sustained injuries. The AOJ should also obtain all current VA medical records and any other private medical records the Veteran identifies. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Request from the SSA any and all records pertinent to the Veteran's claim for Social Security disability benefits as well as medical records relied upon concerning that claim. If the search for such records has negative results, the AOJ should notify the Veteran and place a statement to that effect in the record. 2. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. 3. Appropriate efforts must be taken to obtain copies of the Veteran's service personnel file and any relevant service department ship or deck logs that may assist the Veteran in substantiating his claim as to having sustained injuries aboard the USS Peterson DD 969. As many requests as are necessary to obtain any relevant records must be made, unless it is determined that further efforts would be futile. If the search for such records has negative results, the AOJ should notify the Veteran and place a statement to that effect in the record. 4. If, and only if, additional records are received, access to the Veteran's electronic claims file should be forwarded to the March 2012 examiner, or a suitable substitute, to provide an addendum opinion on the etiology of the Veteran's low back disability, characterized as a low back strain with nerve damage. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's low back disability, characterized as a low back strain with nerve damage had its onset in service or is otherwise related to active service. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Thereafter, undertake any other development action that is deemed warranted and readjudicate the Veteran's claims on appeal, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond. The appellant 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs