Citation Nr: 1805515	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-18 484	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a back disability.

2.  Entitlement to service connection for a back disability, to include as secondary to service connected conditions.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Teague, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1968 to October 1972 and from January 1975 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana.

The Board remanded the claims in October 2012 and ordered the AOJ to provide the Veteran with an SOC for the claim for service connection for a back disability.  An SOC was issued in April 2014 and the Veteran perfected his appeal.  Thus, the requested actions have been completed by the AOJ with no further action necessary to comply with the Board's remand directives; the case is once again before the Board for appellate consideration of the issue on appeal.  Stegall v. West, 11 Vet. App. 268 (1998).

In November 2017, the Veteran testified before the undersigned Veterans Law Judge.  A copy of the hearing transcripts has been associated with the electronic claims file.

The issue of entitlement to service connection for a back condition 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 August 1999 Board decision, the Veteran's service connection claim for a back disability was denied.  The Board decision is final

2.  Evidence received since the August 1999 decision is new and material regarding the issue of service connection for a back disability, as it contains evidence not previously considered that has some tendency to help link the Veteran's current back disability to his active military service.


CONCLUSIONS OF LAW

1.  The August 1999 Board decision that denied service connection for a back disability is final.  38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.1100 (2017).

2.  The criteria for reopening the Veteran's previously denied claim of service connection for a back disability have been met.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to notify and assist

With respect to the Veteran's claim to reopen a claim for service connection for a back disability decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions.  Moreover, there can be no prejudice to the Veteran in proceeding with the current action because of the favorable nature of the Board's decision to reopen service connection for a back disability.

Finally, the Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. New and material evidence

The Veteran contends he has a back disability as the result of military service, or in the alternative, due to his service-connected disabilities.

Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103.  If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial.  38 C.F.R. § 3.156(a).  Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist.  Id. at 118.

The Veteran seeks to reopen the previously denied claim of service connection for a back disability.  The claim was initially considered and denied by the RO in a January 1992 rating decision.  The Veteran initiated an appeal of the decision denying service connection for a back disability and the claim came before the Board in August 1999.  The Board denied the claim for service connection for a low back disability on the grounds that the claim was not well grounded.  Specifically, the Board found the evidence did not provide a basis to relate any current lumbar pathology to the Veteran's period of service.  The Veteran did not appeal the August 1999 Board decision, and it became final.  38 C.F.R. §§ 20.1100, 20.1104.

The Veteran then filed to reopen a claim for service connection for a back disability in January 2010.  The claim was subsequently considered and denied in a September 2011 rating decision.  The Veteran perfected the appeal and it is now before the Board.

Since the August 1999 Board decision, additional evidence has been received in the form of VA treatment records and lay testimony from the Veteran.  The VA treatment records and lay testimony are new because they have not been previously submitted.

This evidence is also material because it pertains to the basis for the prior denial, that is, a basis to relate any current lumbar pathology to the Veteran's period of service, and raises a reasonable possibility of substantiating the claim.  Specifically, the Veteran testified regarding his continuity of symptoms since service and has offered an alternative theory of service connection, that his back condition was caused or aggravated by his service-connected bilateral knee disabilities.  For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a back disability.  See 38 C.F.R. § 3.156(a).

When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995).  This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied.

Accordingly, the Board has determined that new and material evidence has been received to reopen service connection for a back disability.



ORDER

New and material evidence having been received, entitlement to service connection for a back disability is reopened.


REMAND

VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996).  VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his or her claim.  38 U.S.C.A. § 5103A (d) (West 2014); 38 C.F.R.
§ 3.159(c)(4) (2016).  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

In March 2014, the AOJ obtained a medical opinion on the etiology of the Veterans back disability, secondary to his service-connected bilateral knee disability.  The VA physician indicated the Veteran's back condition was less likely than not proximately due to his service connected bilateral knee disabilities.  The rationale provided was that all records indicated the Veteran had a normal gait.  However, the Veteran during his November 2017 testimony indicated that his bilateral knee disabilities did cause him to alter his gait.  As such, a remand is necessary for a new examination.  Barr, 21 Vet. App. 303, 312 (2007).

Accordingly, the case is REMANDED for the following action:

1.  Associate any VA treatment records since August 2017 with the electronics claims file.

2.  After completion of the above-specified development.  Schedule the Veteran for a VA orthopedic examination to determine the etiology of any current back disabilities.  The examiner must have the appropriate expertise and be provided access to the electronic claims file.  The examiner must indicate review of the claims file in the examination report.

	The examiner is asked to provide the following opinions:

	a)  Is it at least as likely as not (50 percent probability or greater) that any current back disability is caused by the Veteran's service-connected bilateral knee disabilities?  The examiner should specifically comment on the Veteran's report that his gait is altered by the service-connected knee disabilities.

c)  If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any back disability is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's bilateral knee disabilities?

	If the VA examiner opines that any back disability is aggravated by the bilateral knee disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability.

	A rationale should be given for all opinions and conclusions rendered.

3.  After completing all indicated development, and any additional development deemed necessary, readjudicate the claims.  If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response.

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 (West 2012).



______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs