Citation Nr: 1806545	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-17 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma



THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D.S. Chilcote, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1965 to March 1966.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

A videoconference hearing was held before the undersigned Veterans Law Judge in January 2017.  A transcript of the hearing is of record.  

This appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.    

The underlying merits of the claim for service connection for a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  In an April 1968 rating decision, the RO denied service connection for a back disorder.  The Veteran was notified of the decision, but he did not appeal that determination or submit new and material evidence within the one-year period thereafter.

2.  The evidence received since the April 1968 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim.



CONCLUSIONS OF LAW

1.  The April 1968 rating decision denying service connection for a back disorder is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).

2.  The evidence received since the April 1968 rating decision is new and material, and the claim for service connection for a low back disorder is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial).  

New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).

The United States Court of Appeals for Veterans Claims (Court) has held that 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).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist.  Id. at 118.

The RO previously considered and denied a claim service connection for a back disorder in an April 1968 rating decision.  In particular, the RO found that the Veteran's back disorder was clearly shown to have existed prior to service and that there was no evidence showing that the disorder was aggravated during his short period of service.  The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year appeal period.  Therefore, the April 1968 rating decision is final.  See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.

At the time of the April 1968 rating decision, the evidence of record included the Veteran's service treatment records and an April 1968 VA examination report.

The evidence received since the April 1968 rating decision includes private treatment records and medical opinions from the Veteran's treating physician, R.B.S., M.D. (initials used to protect privacy) dated in January 2014 and June 2015.  Dr. R.B.S. opined that the Veteran's back problems developed during military service.  In addition, the Veteran denied having any preexisting back problems during his January 2017 hearing.  According to the Veteran, he injured his back while serving on board a naval vessel.  Similarly, in his June 2013 notice of disagreement, the Veteran stated that he hurt his back on a tanker ship.  

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim, and could reasonably substantiate the claim were it to be reopened by triggering VA's duty to assist.  See Shade, 24 Vet. App. at 117-18.  Thus, the Board finds that this evidence is both new and material, and the claim for service connection for a low back disorder is reopened.  However, as will be explained below, further development is necessary before the merits of the Veteran's claim can be addressed.        


ORDER

New and material evidence having been submitted, the claim for service connection for a low back disorder is reopened; the claim is granted to this extent only.


REMAND

The Veteran has not been afforded a VA examination in connection with his claim for service connection for a low back disorder.  The presumption of soundness applies in this case because the Veteran's August 1965 enlistment examination found his spine to be normal.  However, the Veteran later sought treatment in service and reported a longstanding history of back pain due to a football injury five years earlier.  He was diagnosed with spondylolisthesis that existed prior to service and was not aggravated by his military service.  The Veteran was found to be physically unfit for service, and he was discharged.  Nevertheless, as noted above, he has since asserted that he did not have a preexisting back disorder and has submitted private medical opinions in support of his claim that the disorder was incurred in service.  Those opinions do not address the contemporaneous reports of a back injury prior to service.  Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any back disorder that may be present.

Accordingly, the case is REMANDED for the following actions:

1.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back, including any treatment records from Dr. R.B.S.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also obtain any outstanding VA medical records.

2.  After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements.

The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all current low back disorders.
	
For each diagnosis identified, the examiner should state whether the disorder is a congenital defect or disease.

To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating.  (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.")

(1)  For any congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during service.

(2)  For any congenital disease or any disorder that is not congenital, the examiner should state whether the disease/disorder preexisted the Veteran's service.

(The term "clear and unmistakable" means that the evidence is undebatable.)

If so, the examiner should state whether there was an increase in the severity during service.  If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology.

In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.

(3)  For each diagnosis identified that is not congenital and/or did not preexist service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology and injury therein.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)

A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

4.  When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence.  If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.   

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).



______________________________________________
J.W. ZISSIMOS
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).



Department of Veterans Affairs