Citation Nr: 1807189 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-24 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received with respect to a claim of service connection for a back disability, claimed as a low back condition and a middle back condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Reed, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1976 to April 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2017. 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 New evidence that tends to substantiate the claim of service connection for a back disability has been received since the final rating decision that denied service connection for a low back condition and a middle back condition. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. 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. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2016). The Veteran claimed service connection for a low back injury and a mid-back injury in May 2008; in an August 2008 rating decision, the AOJ denied service connection for the Veteran's claimed low back injury and mid-back injury, stating that no evidence of a current low back or mid-back condition had been received at that time. The Veteran was notified of that decision in an August 2008 letter. The Veteran submitted a February 2009 Notice of Disagreement with respect to his claimed low and mid-back conditions. In March 2010, the AOJ issued a Statement of the Case which, in relevant part, denied service connection for a low back injury and a mid-back injury. The Decision Review Officer noted that the Veteran's service treatment records documented complaints of mid and low back pain in service, and that a VA examination showed a lumbosacral strain, but stated that the evidence following service did not show that his current back condition was related to the acute injury during service. The VA did not receive a Substantive Appeal or any new and material evidence with respect to those claims within 60 days from the date that the Statement of the Case was mailed, and consequently, the underlying August 2008 rating decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claim of service connection for a back condition. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156 (2017). The Veteran filed his claim to reopen his back disability claim in September 2010. The Veteran submitted private medical opinions in September 2011 and September 2017, in which both physicians opined that it was more likely than not that the Veteran's chronic back pain manifested while in service. The Board concludes that this evidence received subsequent to the August 2008 rating decision is both new and material with respect to the back disability claim. Accordingly, the Veteran's claim of service connection for a back condition is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). ORDER New and material evidence with respect to the claim of service connection for a back disability has been received; that claim is reopened, and to this limited extent, the appeal of that issue is granted. REMAND The Veteran underwent two VA examinations with respect to his claimed back condition in March 2010 and April 2011; both VA examiners ultimately concluded that the Veteran's current back condition was less likely than not related to military service. In response to this, the Veteran submitted private medical opinions in September 2011 and September 2017 concerning the etiology of his current back condition, manifested by chronic back pain. In the September 2017 private medical opinion, Dr. J.A.F. indicated that, after reviewing the Veteran's service treatment records and his private treatment records, it was more likely than not that his current condition manifested while in service. Dr. J.A.F. stated that his opinion was based on his medical training, the Veteran's medical records, and treatment provided to the Veteran for his chronic back pain since 2015. Those private treatment records have not yet been associated with the file. As there are outstanding records a remand is required in order to obtain those identified private records. Additionally, the Board notes that while Dr. J.A.F. provided a positive etiology opinion with respect to the Veteran's back condition, he did not provide any rationale for that opinion. Rather, he simply stated that the opinion was based on his medical experience, the Veteran's medical records, and treatment provided to the Veteran for his chronic back pain, which as noted above, is not yet of record. Additionally, while Dr. J.A.F.'s opinion identifies that the Veteran has a current medical condition manifested by chronic back pain, he does not identify the specific back condition the Veteran has been diagnosed with. This frustrates the Board's ability to adequately assign comparative probative value between this and the other etiology opinions of record. When VA concludes that a private medical examination is unclear or insufficient in some way, and it and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). As this matter is already being remanded, the Board finds that the interests of the Veteran are best served by requesting an actual rationale from Dr. J.A.F. as well as identification of the spine condition to which he was referring in the September 2017 private medical opinion. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, return to Dr. J.A.F. a copy of his September 2017 statement and request further clarification. Specifically, ask Dr. J.A.F. to elaborate as to how his medical training, the Veteran's medical records, and the treatment provided to the Veteran for his chronic back pain led him to conclude that it was at least as likely as not that the Veteran's back condition manifested while in service. Additionally, ask Dr. J.A.F. to identify the Veteran's current back disability or disabilities manifested by chronic back pain. Allow a reasonable amount of time for his response. If Dr. J.A.F. is unable or unwilling to provide clarification within that time frame, documentation to that effect should be added to the claims folder. 2. After securing the necessary releases, attempt to obtain and associate with the file the treatment records from Dr. J.A.F. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran 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). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs