Citation Nr: 1801617 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for ankylosing spondylitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from May 1964 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appellant filed a timely Notice of Disagreement (NOD), received in October 2012. A Statement of the Case (SOC) was issued in April 2014. A timely substantive appeal was received in April 2014. The appellant was afforded a video hearing before the undersigned in August 2017. A transcript is of record. 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 issue of entitlement to service connection for ankylosing spondylosis 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 a September 1986 decision, the Board denied service connection for ankylosing spondylitis. 2. In a July 2003 rating decision, the RO denied the appellant's request to reopen the previously denied claim of service connection for ankylosing spondylitis. The appellant was duly notified of the RO's determination and his appellate rights but he did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 3. Evidence received since the final July 2003 rating decision denying the reopening of the claim of service connection for ankylosing spondylitis relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for ankylosing spondylitis. CONCLUSIONS OF LAW 1. The September 1986 Board decision denying service connection for ankylosing spondylitis is final. 38 U.S.C. § 4004(b) (1982); 38 C.F.R. § 19.104 (1985). 2. The July 2003 rating decision denying reopening the previously denied claim of service connection for ankylosing spondylitis is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). 3. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for ankylosing spondylitis. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b) (1). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision. II. Applicable Law The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Court of Appeals for Veterans Claims (CAVC) was not established until 1988. Pub. L. No. 100-687, 102 Stat. 4105 (1988). For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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. Id. at 118. III. Analysis In a September 1986 decision, the Board denied service connection for ankylosing spondylitis because there was no nexus between an in-service event, injury, or disease and the appellant's current disability of ankylosing spondylitis. The appellant was informed of this decision in a September 1986 letter. The next submission with respect to his ankylosing spondylitis, received on April 15, 2003, was a claim of service connection for a back disability. In a July 2003 rating decision, the RO denied reopening of the previously denied claim of service connection for ankylosing spondylitis because the evidence received was not new and material. Specifically, there was no evidence which suggested a link between an in-service event, injury, or disease and the appellant's current ankylosing spondylitis. The appellant was informed of this decision and his appellate rights in a July 2003 letter, but he did not appeal within the applicable time period, nor was new and material evidence received within one year of the letter. The appellant does not contend otherwise. Thus, the determination is final. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in July 2003. That evidence includes the appellant's testimony during his August 2017 Board hearing that a doctor told him that his back problems may be related to his active service. This evidence is new, as it was not before the RO at the time of its July 2003 rating decision. Further, presuming its credibility, it is material, as it relates to an unestablished fact necessary to substantiate the claim. Service connection was denied because there was no nexus between his active service and his current disability. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claim of service connection for ankylosing spondylitis is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. ORDER New and material evidence having been received, the claim of entitlement to service connection for ankylosing spondylosis is reopened. REMAND VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes making as many requests as necessary to obtain relevant records in the custody of a Federal department or agency such as the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). In this case, during his August 2017 Board hearing, the appellant reported that he receives disability payments from the Social Security Administration (SSA) for his ankylosing spondylitis. It does not appear that these records have been requested. Thus, a remand is warranted to enable the RO to take appropriate efforts to obtain these potentially relevant records. See McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (noting that Congress has explicitly defined VA's duty to assist in terms of relevance); see also Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010) (noting that "[r]elevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."). During his August 2017 hearing, the appellant testified that he had no back problems prior to his active service. He stated that he injured his back while loading a tent. November and December 1964 clinical notes indicate that the appellant was seen for back complaints. During the hearing, the appellant stated that no imaging studies were performed and that no medication was provided on either occasion. He stated that he was told to sleep on a bed board. He denied being put on light duty. The appellant reported seeking private treatment beginning in the mid-to-late 1960s, after separation. However, he stated that he did not believe it was possible to obtain any treatment records from the clinicians he saw as they had since died and their practices had closed. He stated that no imaging studies were performed and that one doctor stated he had a pulled or pinched nerve, while another diagnosed him with arthritis and administered a cortisone shot. He stated that imaging studies were first performed in approximately 1983. He reported that one doctor told him that his ankylosing spondylitis could be related to his back injury on active duty. He testified that he has experienced back symptoms since his in-service injury. His representative observed that, although the appellant sought treatment during service, soon after separation, and on many other occasions following, he was not diagnosed with ankylosing spondylosis, nor were imaging studies performed, for many years. A November 1964 clinical note states that the appellant complained of low back pain for three days accompanied by burning urination. The diagnosis was a probable minor strain. There was tenderness but no evidence of spasm. December 1964 clinical notes indicate that the appellant was seen for continuing back pain. His May 1965 separation examination was essentially normal, including the spine. On his May 1965 Report of Medical History, the appellant denied arthritis or rheumatism, bone, joint, or other deformity, paralysis, or lameness. He denied having worn a brace or back support. He did report that he had sought and received clinical treatment for back trouble within the past five years, however. A July 1984 clinical note states that the appellant has had symptoms of ankylosing spondylosis since 1967, although he was not diagnosed with such until 1977. In 1984, Dr. J.B.R. stated that he first saw the appellant in 1977 and diagnosed him with ankylosing spondylosis. During his October 1984 VA examination, the appellant reported that he has been going to doctors for pain and stiffness since 1966. Doctors had offered varying diagnoses, including pinched nerves, sore muscles, and bursitis, but he was eventually diagnosed with arthritis in 1977. Given the evidence of record, the Board finds that a VA medical examination and opinion are necessary. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a medical examination is necessary when the evidence indicates that a current disability may be associated with service or a service-connected disability but is lacking in specificity to support a decision on the merits). 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. Obtain and associate any and all outstanding VA treatment records with the claims file. 2. Undertake the appropriate efforts to obtain copies of SSA records pertaining to the appellant's award of disability benefits, to include copies of any decisions rendered and the records upon which such decisions were based. 3. Schedule the appellant for an appropriate medical examination to determine the nature and etiology of any and all back disabilities, to include ankylosing spondylitis. Access to the appellant's electronic VA claims file should be made available to the examiner for review. The examiner should identify all back disabilities currently present. If any previously diagnosed disorder, including ankylosing spondylitis, is not found upon examination, an explanation must be provided. Next, the examiner must provide an opinion as to whether it is at least as likely as not that each diagnosed back disability is causally related to the appellant's active service or any incident therein. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should reference the relevant evidence of record, including, but not limited to: (1) the November and December 1964 clinical notes when the appellant was seen for back pain; (2) his diagnosis of ankylosing spondylosis, first made in 1977; (3) his consistent reports of back problems since separation; (4) evidence, including, but not limited to, his August 2017 testimony and 1984 clinical notes, that he has sought treatment for his back problems since the mid-to-late 1960s; and (5) the appellant's varying back diagnoses prior to 1977 when his disorder was first identified as ankylosing spondylosis. 4. 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 preceding paragraphs, readjudicate the issue on appeal, considering all the evidence of record. If the benefit sought is not granted, furnish the appellant a Supplemental Statement of the Case and the opportunity to respond before the record is returned to the Board for further review. The appellant 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs