Citation Nr: 1803580 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-29 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for lumbosacral degenerative disc disease (DDD) status post spinal fusion with spondylosis, previously claimed as back injury. 2. Entitlement to service connection for lumbosacral DDD status post spinal fusion with spondylosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1976 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified before the undersigned at a May 2017 hearing. A transcript of that hearing is of record. The issue of entitlement to service connection for lumbosacral DDD status post spinal fusion with spondylosis 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 May 1987 rating decision, the Veteran's claim for service connection for a back injury was denied. 2. The Veteran filed a May 1987 Notice of Disagreement (NOD) and the RO issued a June 1987 Statement of the Case, but the Veteran did not perfect his appeal and no further evidence was added to the claims file for one year after the May 1987 rating decision was mailed. 3. Since the May 1987 rating decision, the Veteran has submitted evidence in support of his claim for service connection for lumbosacral DDD status post spinal fusion with spondylosis which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board. CONCLUSIONS OF LAW 1. The May 1987 rating decision denying service connection for back injury is final. 38 U.S.C. § 7105(c)(2012); 38 C.F.R. § 20.302 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for lumbosacral DDD status post spinal fusion with spondylosis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). Evidence is material if, either by itself or considered in conjunction with previous evidence of record, it relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Veterans Appeals (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. A rating decision of May 1987 denied service connection for a back injury. As no appeal was perfected and no evidence submitted within one year after the May 1987 rating decision was mailed, the rating decision became final. 38 U.S.C. § 7105(c) (2017). The Veteran has now submitted an opinion from his private physician, dated September 12, 2011, stating that the Veteran's back problems "originated with injury at Fort Ord April 26th 1977 when pt fell off wrecker." The Board finds that this evidence is new, in that it has not been previously submitted to either the RO or the Board. The Board finds that it is material, as it is the first positive evidence of a nexus between the Veteran's lumbar DDD and his active service. Because the Veteran has submitted new and material evidence supporting his claim of service connection for lumbar DDD, reopening this claim is warranted. The claim itself will be addressed in the remand section below. ORDER The application to reopen the claim for entitlement to service connection for lumbosacral DDD status post spinal fusion with spondylosis is granted. The claim is granted to this extent only. REMAND The Veteran states that he has been treated for his claimed disability at the following facilities: Arvold Chiropractic Clinic East SC from 1980 to 2011; Baldwin Area Medical Center - Hospital and Clinic from 1980 to 2011; Midwest Spine Institute from 1980 to 2011; Lakeview Hospital from 1980 to 2011; and the Milwaukee VA Medical Center from January 2010 to present. While the Veteran has submitted selected medical records from these providers, the claims file is still lacking many treatment records, including non-surgical treatment records and records related to the Veteran's reported motor vehicle collision in 1990. Because such records, if obtained, might contain information bearing on the Veteran's appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the Milwaukee VAMC since April 2014, following the procedures set forth in 38 C.F.R. § 3.159 (2017). The evidence obtained, if any, should be associated with the claims file. 2. Ask the Veteran to provide a release for relevant records of treatment from the facilities listed below, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary releases, the RO must attempt to obtain the records identified, following the procedures set forth in 38 C.F.R. § 3.159 (2017). Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. Request and document any negative responses as appropriate. a. Arvold Chiropractic Clinic East SC from 1980 to 2011 b. Baldwin Area Medical Center - Hospital and Clinic from 1980 to 2011 c. Midwest Spine Institute from 1980 to 2011 d. Lakeview Hospital from 1980 to 2011 3. Readjudicate the claim. 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. §§ 5109B, 7112 (2012). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs