Citation Nr: 1800635	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-30 011	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder.  

2.  Entitlement to service connection for a low back disorder.

3.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a neck disorder.  

4.  Entitlement to service connection for a neck disorder.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Cannon, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Veteran served on active duty in the United States Army from May 1953 to April 1955.  He was honorably discharged.  

This matter comes before the Board of Veterans' Appeals (Board) from January 2013 and November 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  

In October 2017, a video hearing was held before the undersigned.  A transcript of that hearing is of record.

The issues of entitlement to service connection for a low back disorder and a neck disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1.  A January 2007 rating decision denied entitlement to service connection for a low back disorder.  

2.  Evidence received subsequent to January 2007 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a low back disorder.

3.  A January 2007 rating decision denied entitlement to service connection for a neck disorder.  

4.  Evidence received subsequent to January 2007 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a neck disorder.


CONCLUSIONS OF LAW

1.  With regard to the Veteran's claim of entitlement to service connection for a low back disorder, evidence received since the January 2007 rating decision is new and material, and this claim is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

2.  With regard to the Veteran's claim of entitlement to service connection for a neck disorder, evidence received since the January 2007 rating decision is new and material, and this claim is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim."  Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105.

A claimant may reopen a finally-adjudicated claim by submitting new and material evidence.  Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary's duty to assist by providing a medical opinion.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010).  For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In January 2007, the RO denied the Veteran's claims of entitlement to service connection a low back disorder and a neck disorder.  Part of the reason for this denial was that there was no evidence that "a back condition . . . has existed since separation from service . . . ," and that there was still inadequate evidence of a neck injury in service. 

Evidence submitted since that time supports the presence of a back condition since separation from service.  In the October 2017 hearing transcript, the Veteran states that he first received Cortisone shots for his back within five months of leaving service and that his head snapped back against the ground and caused injury to his neck.  He also reports continuing neck complaints after his fall and regular incidences of back pain since leaving service, as corroborated by newly-submitted statement from his son.  See April 2013 lay statement.  This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran's claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims.  The criteria for reopening the Veteran's claims have been met.


ORDER

New and material evidence to reopen the claim for entitlement to service connection for a low back disorder has been received; to this limited extent, the appeal is granted.

New and material evidence to reopen the claim for entitlement to service connection for a neck disorder has been received; to this limited extent, the appeal is granted.


REMAND

A remand is required for VA examinations and medical opinions regarding the Veteran's low back and neck disorders.  

A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  See also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017).

These four elements are satisfied.  Regarding the first element, a June 2010 private medical record describes "[a]dvanced osteoarthritic changes lower thoracic and lumbar spine with significant anterior osteophyte formation with bridging osteophytes."  This constitutes competent evidence of a current disability, satisfying the first McLendon element.  

Regarding the second element, the Veteran has consistently stated that he hurt his back and neck when he fell off of a truck that he was helping to unload.  In the October 2017 hearing transcript, the Veteran states that he hit his head and back and was unconscious after the fall, and was carried by two friends to the dispensary.  Afterwards, the Veteran yelled when a medical doctor poked his back, prompting the doctor to say that the Veteran's back was broken.  This constitutes evidence of an in-service injury, satisfying the second McLendon element.  

Regarding the third and fourth elements, there is an indication that the Veteran's current spine disorders could be the result of his in-service injury, but there is insufficient medical evidence of record by which the Board can make this determination.  As all four McLendon elements are satisfied, the Veteran is entitled to a VA examination and opinion.  

VA treatment records to July 30, 2014, have been associated with the claims file.  See Legacy Content Manager Documents.  Therefore, the RO should obtain all relevant VA treatment records dated from July 31, 2014, to the present before the remaining issues are decided on the merits.  Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Associate with the claims folder all records of the Veteran's VA treatment from July 31, 2014, to the present.  If no records are available, the claims folder must indicate this fact.  Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file.

2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed lower back and neck disorders.  The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions:     

a. Whether the Veteran has any current or previously-diagnosed lower back or neck disorders; and

b. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed lower back or neck disorders were incurred in the Veteran's service, including but not limited to his in-service fall from the back of a truck. 

In reaching these opinions, the examiner should consider the Veteran's October 2017 hearing testimony about his in-service injury and his post-service treatment.  For purposes of rending these opinions, the examiner is to assume that the Veteran's report of hurting his back and neck during service are credible.  The examiner should also address the 1986 medical records reporting post-service falls.  

The examiner should provide a complete rationale for any opinions offered.  If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.

3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims.  If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto.

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. §§ 5109B, 7112 (2012).




______________________________________________
Michael J. Skaltsounis 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs