Citation Nr: 1802793	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  13-30 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for low back disability. 

2. Entitlement to service connection for low back disability.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

L. Connor, Counsel


INTRODUCTION

The Veteran served on active duty from July 1968 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

In September 2015, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing.  A transcript of that hearing is associated with the claims file.

Although the claim was previously described as a claim for service connection for residuals of a laminectomy, a closer review of the claims file indicates that the Veteran is seeking service connection for a back disability he claims existed prior to the laminectomy.  In light of the Court of Appeals for Veterans Claims holding in Clemmons, the Board has expanded the claim to include all disabilities of the back, as indicated above.  See Clemmons v. Shinseki, 23 Vet. App. 1 (2009).

The issue of entitlement to service connection for a back disability 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 an unappealed February 2010 rating decision, the RO determined that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for residuals of a laminectomy.

2. Evidence added to the record since the February 2010 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for a back disability.


CONCLUSIONS OF LAW

1. The February 2010 rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2. Evidence received since the February 2010 rating decision is new and material; the claim is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

By way of history, the Veteran's claim for entitlement to service connection for a back condition was initially denied in an August 1980 rating decision.  Thereafter, in a December 1980 Board decision, the denial was continued based on an absence of evidence of a back injury in service and evidence of a nexus between any current back disability and the Veteran's period of active service.  The Board attributed the Veteran's current back disability to a November 1978 work-related injury.  The Veteran filed a claim to reopen the claim for entitlement to service connection for a back condition and that claim was denied in a June 1981 rating decision.  A September 1982 Board decision continued this denial, finding that new and material evidence had not been presented sufficient to reopen the Veteran's claim.  The RO denied reopening the Veteran's claim again in September 1985, October 1990, February 2010, and most recently, in the October 2012 rating decision currently on appeal.  The Veteran did not seek an appeal of the October 2012 decision.

Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence.  When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material."  Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).

It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed.  Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

"New" evidence means evidence not previously submitted to VA decision makers.  "Material" evidence means evidence that relates to an unestablished fact necessary to substantiate the claim.  Cumulative or redundant evidence is not new and material.  38 C.F.R. § 3.156(a).

In order to reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  This is a low threshold that is meant to enable, rather than preclude, reopening.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion.  Id. at 117.

The February 2010 rating decision noted that new and material evidence was not presented to reopen the Veteran's claim for entitlement to service connection for residuals of a laminectomy.  There remained no evidence linking a current back disability to the Veteran's active service.  The Veteran did not appeal the denial and additional evidence was not added within a year of the rating decision.  The rating decision is final.  See 38 C.F.R. § 20.1103.

Evidence received since February 2010 includes an undated letter from Dr. L.D.S. indicating that the Veteran suffers from chronic sciatic pain and was treated for lower back problems in service.  Dr. L.D.S. noted the Veteran's post-service work accident in 1978 that led to disc surgery but also pointed to a May 1979 letter indicating that the 1978 injury "aggravated, accelerated and exacerbated a previously existing problem."  Dr. L.D.S. stated that it was his "medical opinion within a certain degree of medical certainty that the pre-existing problem was initially cause [sic] by his military service."  

The credibility of this evidence is presumed.  Accordingly, the Board finds that this evidence is both new to the record and material to a previously unestablished element of his claim for service connection, a nexus between his current back disability and the Veteran's period of active service.  Reopening is granted. 


ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability; to this extent only, the claim is granted.


REMAND

The Veteran's service treatment records have a one-time notation of "pain back" dated in August 1968.  The Veteran testified that he was treated with whirlpool therapy and muscle relaxers in service.  The remaining service treatment records are silent with respect to complaints, treatment, or diagnosis of a chronic low back disorder.  Post-service treatment records dated in May 1979 document a lumbar laminectomy after a November 1978 work-related back injury.  The records indicate that the Veteran's nucleus pulposus "nerve root had been compressed by an osteophyte" which the Veteran argues takes significant time to develop.  The May 1979 record also indicates that the Veteran's November 1978 injury exacerbated a previously existing problem.  Significantly, in the recently received statement from Dr. L.D.S., the physician opined that the "previously existing" back disability referred to in the May 1979 treatment records was caused by the Veteran's period of active service.  This finding was based on a conclusion that the Veteran was treated for "lower back problems" in service without the benefit of a complete review of the record.  An opinion should be obtained to address the etiology of the Veteran's current back disability after a review of the Veteran's claims file.

Accordingly, the case is REMANDED for the following action:

1. After obtaining any necessary releases, any updated treatment records relevant to the Veteran's claim should be obtained.

2. Thereafter, submit the claims file to an appropriate VA medical professional to provide an addendum opinion on the etiology of the Veteran's claimed back disability.  If the medical professional determines that another examination is necessary, one should be arranged.  After a review of the claims file, the medical professional is asked to respond to the following:

(a) Identify all back disabilities diagnosed during the appeal period (from January 2012).

(b) For each back disability diagnosed, is it at least as likely as not (50 percent probability or greater) that the condition had its onset in or is otherwise related to service, to include the August 1968 treatment for back pain?

The examiner should comment on Dr. L.D.S.'s opinion that the Veteran's November 1978 work-related back injury exacerbated a back injury that had its onset in service.   The examiner is also asked to address the contention the osteophyte observed in 1979, which led to herniated nucleus pulposus, was likely caused by the in-service low back strain, i.e., took a significant time to develop.

Rationale for any opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.

3. Thereafter, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate

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).

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. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs