Citation Nr: 1806386	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-06 925	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received to reopen the claim for service connection for degenerative joint disease (DJD) of the lumbar spine, claimed as back condition.

2. Entitlement to service connection for DJD of the lumbar spine, claimed as back condition.

3. Entitlement to service connection for a psychiatric disorder, secondary to lumbar spine disability.

4. Entitlement to service connection for radiculopathy of the right lower extremity, secondary to lumbar spine disability. 

5. Entitlement to service connection for radiculopathy of the left lower extremity, secondary to lumbar spine disability. 

6. Entitlement to a temporary total evaluation based on surgery and convalescence for DJD of the lumbar spine. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Negron, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Navy from December 1974 to November 1976.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Veteran was provided a hearing in May 2017 with the undersigned Veterans Law Judge, and a transcript of the hearing is of record.  

The issues of service connection for DJD of the lumbar spine, service connection for a psychiatric disorder, service connection for radiculopathy of the right lower extremity, service connection for radiculopathy of the left lower extremity, and entitlement to a temporary 100 percent based on surgery and convalescence for DJD of the lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The July 1977 rating decision, which denied service connection for a back condition became final.

2.  The evidence submitted since July 1977 relates to an unestablished fact necessary to substantiate the claim for service connection for a back condition and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The July 1977 rating decision denying service connection for a back condition became final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2.  New and material evidence has been received to reopen service connection for a back condition, diagnosed as DJD of the lumbar spine.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Criteria 

The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence.  See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed.  Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

 New and Material Evidence

Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C. § 7105 (2012).  However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim.

The Veteran is seeking to reopen service connection for chronic back condition.  The claim was previously denied in a July 1977 rating decision due to the Veteran not attending a VA examination to determine if there was a current disability and its etiology. 

Since the July 1977 rating decision, the Veteran has been diagnosed with DJD of the lumbar spine.  He has also submitted medical records showing treatment for a chronic low back strain while in service.  The Board finds this evidence is new, as it has not been part of the record before, and material, as it relates to a factor in possibly substantiating the claim.  Therefore, the evidence is to be considered new and material, and the claim is reopened. 


ORDER

New and material evidence having been received, the appeal to reopen service connection for back condition, diagnosed as DJD of the lumbar spine, is granted.  


REMAND

Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran's remaining claims. 

The Veteran is claiming service connection for DJD of the lumbar spine due to a fall while unloading supplies during his active duty service.  The Veteran is further claiming his psychiatric disorder and radiculopathy of the right and left lower extremity are secondary to his back injury. 

As an initial matter, the records show the Veteran has been diagnosed with DJD of the lumbar spine, a mood disorder with depression, and radiculopathy of the right and left lower extremity.  Further, in July 2010, the Veteran was provided two VA examinations; one for his psychiatric condition and another for his spine and peripheral nerves.  Both VA examiners opined that the Veteran's mood disorder with depression and radiculopathy of the right and left lower extremity were at least as likely as not related to his back disability.  The VA examiner who conducted the examination on the Veteran's spine and peripheral nerves also opined that he believed the Veteran's spine and nerve disability would be at least as likely as not related to in-service trauma, if there were records supporting that he had continuous symptoms or treatment for his back.  The examiner further explained that in the absence of such records, the condition is unlikely related to service. 

The Board notes that since the July 2010 examinations, the Veteran has submitted medical treatment records showing he was treated for a chronic low back strain in October 1976 while in service.  Further, at a May 2017 hearing, the Veteran testified that he hurt his back unloading supplies while stationed in Alaska.  He stated he visited the infirmary there, but he was not sent to see a specialist until several months afterwards in Washington, which was the medical record he submitted.  The Board notes that the report from October 1976 does confirm the Veteran's description of the injury and accident.  The Veteran also stated that it appears the service treatment records from when he was stationed in Alaska are not of record.  The Veteran additionally testified to receiving treatment at the Bay Pines VA medical center for his back condition and undergoing lumbar surgery in 2010.  The Board notes it appears these medical records are also not a part of the record. 

As such, because there is an indication that additional service, VA, and private treatment records are missing from the record, as well as additional evidence submitted showing the Veteran was treated and diagnosed with a back condition while in service, the Boards finds that a remand is required in order to retrieve such records and to obtain an addendum opinion addressing the new evidence, and the nature and etiology of the claimed back condition.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Lastly, the Board notes that all of the Veteran's other remaining claims are inextricably intertwined and dependent on his claim for service connection for DJD of the lumbar spine, as well as the retrieval of such records, and therefore, a determination on all the issues prior to resolving his claim for service connection for DJD of the lumbar spine would unduly prejudice the Veteran.  Thus, adjudication on the issues of service connection for a psychiatric disorder, service connection for radiculopathy of the right lower extremity, service connection for radiculopathy of the left lower extremity, and entitlement to a temporary total evaluation based on surgery and convalescence for DJD of the lumbar spine are deferred until the above development is accomplished.

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the Veteran's electronic claims file any outstanding VA and private treatment records relevant to the Veteran's low back disability, psychiatric disorder, and radiculopathy of the bilateral lower extremities.  Specifically, exhaust all efforts to obtain all of the Veteran's service treatment records from his time in Alaska, VA treatment records from the Bay Pines facility, and any medical records related to his 2010 lumbar surgery.  As needed, signed release forms for private records should be obtained.  All requests for records and responses must be associated with the claims folder.

2.  After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's July 2010 spine and peripheral nerve examination.  The record and a copy of this Remand must be made available to the examiner.  If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled.  If the July 2010 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional.  

Following a review of the entire record, to include the Veteran's lay statements concerning his in-service fall, as well as the onset of current symptomatology, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's DJD of the lumbar spine had its onset during, or is otherwise related to, his active duty service, to include the October 1976 diagnosis of chronic low back strain. 

In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration.

A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. 

If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided.

3.  After completion of the above, readjudicate the issues on appeal.  If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case, and afford them a reasonable opportunity to respond before the file is returned to the Board for further consideration.

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).




______________________________________________
JENNIFER HWA 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs