Citation Nr: 1803305 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-15 347A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for degenerative disc disease (DDD) of the spine (claimed as a back condition). 2. Entitlement to service connection for a back disability to include DDD of the spine, stenosis and lumbar arachnoiditis. REPRESENTATION Appellant represented by: African American PTSD Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. A. Abarr, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from January 1978 to January 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2017, the Veteran testified on these matters before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing has been associated with the claim file. The Board notes that as a general rule, "when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered." 38 U.S.C. § 7104(b) (However, if a veteran's claim does not have the same factual basis as a prior claim, then the veteran is not seeking to reopen his prior claim but rather is opening a new claim. In such cases the new and material evidence requirement of 38 U.S.C. § 5108 is inapplicable. In this case, the Veteran was denied service connection for a DDD of the spine in a September 2008 rating decision. At the time of the denial, the record included diagnoses of DDD of the spine and stenosis. A June 2017 letter from the Veteran's VA physician notes a diagnosis of lumbar arachnoiditis. While generally this would constitute a new claim for service connection for lumbar arachnoiditis, since the Board is reopening the claim for service connection for DDD of the spine, the Board will expand the issue under Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) to include any and all diagnosed back disabilities. The issue of entitlement to service connection for a lumbar spine disability is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In a September 2008 rating decision, the RO denied service connection for DDD of the spine. 2. The evidence received since the September 2008 decision is probative and relevant and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The September 2008 rating decision is final. 38 U.S.C. § 7105 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for DDD of the spine (claimed as a back condition). 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board has determined that the evidence is sufficient to reopen the Veteran's claims of entitlement to service connection for DDD of the spine (claimed as a back condition); accordingly, no further discussion of the VCAA is necessary with respect to this claim. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 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 means existing evidence not previously submitted to agency decisionmakers. 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 (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). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). In this case, service connection for DDD of the spine was denied in a September 2008 rating decision. The basis of the denial was the lack of a nexus to service. Further, there was no medical evidence of an in-service disease or injury. At the time of the prior denial, the evidence of record included service treatment records and VA outpatient treatment records showing a diagnosis od DDD of the spine and stenosis. The evidence added to the record since the September 2008 rating decision includes statements by the Veteran in October 2011, May 2014, and at his hearing in April 2017, that around January to June of 1980, he was a front seat passenger in a military vehicle on security patrol at Brunswick Naval Air Station, Maine. He stated that the vehicle flipped over and he was thrown out, landing on his head and neck, causing pain in his lower back. He states that he endured the pain in his back and did not report to sick bay at that time, but that a few years after discharge, the pain grew worse. The Veteran also stated that documentation of this accident is located in the daily logs and incident log books and that there are two potential witnesses to the claimed in-service event. The Board considers the Veteran's statements and testimony to be new and material evidence as they provide additional details as to the claimed in-service motor vehicle accident. The additional details could help in substantiating the claim insofar as they could corroborate an injury in service. In addition, the Veteran has now stated that he has had back pains since service thus providing evidence of continuity of symptomatology which did not exist at the time of the prior denial. Because the evidence added to the record since the September 2008 rating decision addresses (1) a potential in-service injury and (2) a nexus between that injury and a present disability, it raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. Thus, the Board finds that new and material evidence has been presented and the claim is reopened. ORDER New and material evidence having been presented, the petition to reopen the claim of entitlement to service connection for DDD of the spine (claimed as a back condition) is granted. REMAND At the hearing, the Veteran stated he continues to receive treatment for his back at the VA. The records appears to only contain treatment records from the 1990s. On remand, outstanding VA outpatient treatment records must be obtained. Moreover, the Board notes that the Veteran has alleged he was involved in a motor vehicle accident in service and that the accident would be documented in the log books. Efforts should be made to try to corroborate the claimed in-service accident. Finally, the Veteran submitted a letter from his doctor at the VAMC, dated June 23, 2017, stating, "[The Veteran] is a patient of mine in the neurology clinic. He has chronic low back pain and lumbosacral radiculopathy. He also has chronic lumbar arachnoiditis (inflammation of the lining of the nerves in the low back) which also causes pain. The cause of the lumbar arachnoiditis is not clear in his case. Although he has been diagnosed with sarcoidosis which can be a cause of the arachnoiditis, history of injury resulting in bleeding in the brain or spine is also known to cause arachnoiditis. [The Veteran] reported to me that in 1979 while serving in the military, the truck he was riding in flipped over and caused him to fall from the passenger side to the driver side, hitting his head and neck. It is possible that there was bleeding in the subarachnoid space as a result of the incident, and this bleeding could be the cause of the arachnoiditis." The Board finds this opinion inadequate for purposes of determining entitlement to service connection. The VA examiner only opined as to the possibility of the back disability having a nexus to the Veteran's active duty service. For legal purposes, the standard requires a determination of whether the current disability is at least as likely as not (a 50 percent probability or more) incurred in or caused by his active duty service. Therefore, the Board will request a new VA exam and opinion be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records for treatment of a back disability and associated them with the claim file. All efforts to obtain the records should be clearly documented in the file. If records are unavailable, it should so be noted in the file and the reason or their unavailability should be noted. 2. The RO should attempt to obtain from any appropriate repositories (including but not limited to unit records, base police reports and/or log books) records for the pertinent period at Brunswick Naval Air Station in Maine to assist the Veteran in demonstrating an in-service injury occurred. If unable to obtain these records, document such efforts in the claim file, and if obtained, add these records to the claim file. 2. After the development above has been completed, Schedule the Veteran for a new VA examination to determine the etiology of his current back disability, diagnosed in the record as DDD, disc bulging, spinal stenosis, foraminal stenosis and chronic arachnoiditis. The claim file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a thorough review and discussion of the evidence in the claim file, to include post-service medical records and the Veteran's lay statements and testimony, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's current back disability was incurred in or caused by his active duty service. A complete rationale must be provided for any opinion offered. If the examiner is unable to render an opinion without resorting to mere speculation, the examiner must provide a thorough and comprehensive rationale for this conclusion. 3. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. 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 (2017). If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).