Citation Nr: 1805528 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-21 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for a back disability, claimed as a slipped disc; and if so, whether service connection is warranted. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1985 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's electronic claims folder. 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). FINDING OF FACT The claim for service connection for a back disability was denied in an August 2010 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. Therefore, no further development is required with respect to this aspect of the Veteran's appeal as any deficiency has been rendered moot. II. Application to Reopen Based on New and Material Evidence The Board finds that the Veteran has submitted new and material evidence to warrant reopening her previously denied claim for service connection. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an April 2009 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a slipped disc due to no evidence of a diagnosed back disability. The Veteran did not appeal this decision so it became final. In an August 2010 rating decision, the RO denied the Veteran's claim to reopen his previously denied claim for entitlement to service connection for a back disability due to the lack of submission of new and material evidence. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the August 2010 rating decision is final. Since the last final decision, the Veteran submitted private treatment records which show diagnoses of neuralgia of the right lower extremity and right pyriformis spasm and treatment records where the Veteran reported back pain since 1989. As this evidence had not been previously reviewed by agency makers, the Board finds that it is new evidence under 38 C.F.R. § 3.156(a). Moreover, the Board finds that, presuming its credibility for the purpose of this analysis, the evidence is not only new but also material. It relates to unestablished facts necessary to substantiate the claim and also raises a reasonable possibility of substantiating the claim. In that regard, the evidence shows that the Veteran has a currently diagnosed back disability, the absence of which was the reason for the previous denial. Accordingly, the Veteran's claim for service connection for a back disability is reopened. ORDER New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for a back disability having been received, to this extent the claim to reopen is granted. REMAND The Veteran has advanced several theories for the genesis of her back problems. First, in her September 2008 claim, she claimed she suffered from a slipped disc in 1987 which occurred 2 years after active duty but was never properly treated. Second, in a May 2010 VA Form 21-526, she claimed entitlement to service connection for sexual trauma which occurred in July 1988 and back pain which occurred in 1987. She explained that she went to the doctor for back pain several times due to pain and swelling of the legs. Third, in a November 2010 VA Form 21-526b, the Veteran claimed entitlement to service connection for PTSD and for chronic back pain caused from the sexual assault that occurred during active duty. Private treatment records from Dr. K.C. indicate that the Veteran reported low back pain which started in 1989. She was diagnosed with lumbar disc displacement, sciatica and fasciitis, with onset of November 2010. Fourth, at the June 2016 Board hearing, the Veteran testified that during boot camp in October 1985, she fell while hiking with a backpack and injured her back. She testified that she delayed going to sick call because she was afraid of the repercussions but finally went to sick call in 1987 and was diagnosed with a slipped disc. She also testified that the sexual assault incident during active duty aggravated her back pain. The Veteran has contended that the December 2011 VA examination was inadequate for adjudication purposes. The December 2011 examiner found that the Veteran did not have a diagnosed thoracolumbar spine condition. As there are private medical records which indicate that the Veteran has a current back diagnosis and other lay evidence which purports to relate the current disability to service, the Board finds that a remand is necessary to afford the Veteran another examination which considers all relevant evidence of record. Also, it appears that the Veteran receives ongoing treatment at a VA facility. As the Board has a duty to assist the Veteran in obtaining medical records - especially those in the possession of the VA - the Veteran's VA medical records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all recent VA treatment records since November 2014 and associate them with the electronic claims file. 2. Schedule the Veteran for a VA examination to determine the etiology of her back disability. The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinions. The examiner is asked to offer opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability was incurred in or is otherwise related to service. The examiner's attention is directed to, but not limited to, the following: (a) Private treatment records which show diagnoses of right neuralgia of the right lower extremity; right pyriformis spasm; right lumbar disc displacement, sciatica and fasciitis; and (b) Veteran's lay statements that she originally injured her back after falling while on a backpacking hike during boot camp and reinjured it when she was sexually assaulted during active service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A complete rationale is requested for all opinions. 3. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs