Citation Nr: 1807431 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-23 491 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for a back disability has been received. 2. Entitlement to service connection for a back disability. WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1975. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2011 rating decision in which the RO declined to reopen a claim for service connection for a back disability. In November 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In August 2017, the Veteran and his daughter testified during a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. As noted, in the rating decision on appeal, the RO declined to reopen the previously denied claim for service connection for back disability. However, it is noted that, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen the previously denied claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received-and, given the favorable disposition of the request to reopen-the Board has now characterized the appeal as encompassing both matters listed on the title page. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. The Board's decision reopening the claim for service connection for a back disability is set forth below. The claim for service connection for a back disability, on the merits, is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that in June 2014, the Veteran submitted a private examination report that includes a diagnosis of a cervical spine disability and an opinion addressing the relationship between the cervical spine disability and the Veteran's military service. However, the matter of entitlement to a service connection for a cervical spine disability has not been adjudicated by the AO, this matter is not properly before the Board; hence, it is s referred to the AOJ for appropriate action. See 38 C.F.R. §19.9 (b) (2017). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. In a July 2002 rating decision, the RO declined to reopen a claim for service connection for a back disability; although notified of the denial in a July 2002, the Veteran did not appeal this decision, and pertinent exception to finality applies.. 3. Evidence received since the July 2002 rating decision y, includes evidence that was not previously considered and is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2002 rating decision that declined to reopen a claim for service connection for a back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Since the July 2002 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection a back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the favorable disposition of the request to reopen the claim for service connection a back disability, the Board finds that all notification and development actions needed to fairly adjudicate this matter has been accomplished. Under legal authority in effect the time of the prior denials and currently,, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). As explained in more detail below, the claim for service connection for a back disability was previously considered and denied. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In this case, the Veteran most recently filed a request to reopen his previously denied claim for service connection for a back disability in November 2010. For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156 (a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Service connection for a back disability was initially denied in November 1975 rating decision because the RO determined that the Veteran's service separation examination report showed a normal clinical evaluation his spine. In September 1995 the Veteran petitioned to reopen his claim and in March 1996, the RO declined to reopen the claim of service connection for a back disability on the basis that there had been no new and material evidence submitted since the last prior denial. Although the Veteran filed an NOD in March 1996, the Veteran did not perfect an appeal following the issuance of a March 1996 SOC. In November 2000, the Veteran again sought to reopen his claim for service connection for a back disability. In July 2002, the RO declined to reopen the Veteran's claim of service connection for a back disability on the basis that there had been no new and material evidence submitted the last prior denial. Evidence of record at the time of the July 2002 denial include the Veteran's statements; service treatment records (STRs); and VA and private treatment records dated from 1999 to 2002 that documented the Veteran's complaints of back pain and a diagnosis of back muscle spasms. See e.g., VA treatment records dated in September 2001 and January 2002. The Veteran was notified of the July 2002 determination in a July 2002 letter, he did not appeal the decision. Moreover, no pertinent exception to finality applies. , No new and material evidence was received during the one year appeal period following the notice of the July decision. Moeeover, no additional service records have been received at any time pertinent to the previously disallowed claim for service connection for a back disability warranting readjudication of the claim. See 38 C.F.R. § 3.156 (c). Hence, the July 2002 rating decision is final, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (d)(338 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. As such, the claim for service connection for a back disability may only be reopened and reviewed if new and material evidence is received with respect to this claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Pertinent new evidence received since the July 2002 denial includes the Veteran's statements; VA and private treatment records; a private February 2012 examination report; an April 2012 VA examination report; and the August 2017 Board hearing transcript. Importantly, in the private February 2012 examination report, the private examiner provided a positive nexus opinion between the Veteran's diagnosed back muscle strain and his military service. Furthermore, in the August 2017 Board hearing transcript, the Veteran testified that he had back pain in and since service. The Board finds the foregoing evidence is "new" in that it was not before agency decision makers at the time of the July 2002 final denial of the claim for service connection for a back disability and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it suggests that the Veteran has a current back disability that may be related to service.The Board finds that the additional evidence pertains to elements of the claim that were previously found to be lacking and, when presumed credible, raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 110. The evidence is, therefore, new and material, and the claim for service connection for a back disability is reopened. ORDER As new and material evidence to reopen the claim for service connection for a back disability has been received, to this limited extent, , the appeal is granted. REMAND The Board's review of the claims file reveals that further AOJ action on the reopened claim, on the merits, is warranted. Notably, the Board has reopened the claim for service connection for back disability, whereas the AOJ declined to reopen the claim. As the AOJ has not considered the claim for service connection on the merits, to avoid any prejudice to the Veteran, a remand of this matter for initial AOJ consideration is warranted. See, e.g., Bernard v. Brown, 4 Vet App. 384, 394 (1993). The Board also finds that, prior to such consideration, additional development of evidence pertinent to the service connection claim is warranted. The Veteran claims that his back disability is related to his military service. Specifically, he asserts that during the course of his military occupational specialty (MOS), he was hit in the back with a forklift and has suffered back pain in and since service. See, e.g., Board hearing transcript dated in August 2017. His June 1974 enlistment examination report documents a normal clinical evaluation of the spine. In a May 1975 STR, the examining physician noted that the Veteran has pain when he bends downward. A June 1975 STR notes that the Veteran had complaints of a back pain for 3 weeks due to getting hit in the back with a forklift. The examining physician assessed a muscle strain. His June 1975 separation examination report shows a normal clinical evaluation of the spine. In a March 1999 private treatment report and in an October 2000 letter, Dr. E. Walter, a private orthopaedic surgeon, reported b hat the Veteran had prior back treatment for muscle spasms and that in March 1999, he was in a motor vehicle accident. He reported whiplash; a x-ray revealed normal lumbar spine. In a September 2001 VA treatment record, the treatment provider noted that the Veteran has had "continued complaint of low back pain which has been present since MVA in 1974." On private examination In February 2012, the physician diagnosed a back muscle strain and opined that it is related to the Veteran's military service. The private physician reasoned that the Veteran's disability was due to his in-service event in which he was hit in the back with a forklift. Furthermore, the physician indicated that the Veteran has had back pain in and since service that has worsened overtime. In April 2012, the Veteran was afforded a VA examination. The VA examiner found that the Veteran did not have a back disability. The VA examiner opined that the Veteran's back condition is less likely than not related to his military service, as there is no current back diagnosis upon examinations or noted in his medical records. The Board finds that the medical evidence currently of record is insufficient to resolve rhe service connection claim, on the merits. Notably, the February 2012 private physician did not provide a rationale for the positive nexus opinion, other than reiterating the Veteran's reports of his in-service event of getting hit in the back with a forklift. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Moreover, the private physician did not explain the basis for the comment that the Veteran's back pain had worsened over the years due to the in-service back injur. The Board also finds that the opinion provided by the April 2012 VA examiner is flawed, as it appears to have been predicated or inaccurate facts . . See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). For instance, the April 2012 VA examiner indicated that the Veteran has never been diagnosed with a back disability; however a private treatment record dated in March 1999 reflects an assessment of muscle spasms and in the February 2012 private examination report, the examiner diagnosed a back muscle strain; the examiner also provided a positive nexus opinion between the Veteran's back disability and his military service. The April 2012 VA examiner did not address the private physician's opinion. . See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the Board may not simply adopt a medical examiner's opinion that fails to discuss favorable evidence of record). Accordingly, the Board finds that a remand of this matter for examination of the Veteran is needed for examination and etiology opinions-based on full consideration of all pertinent evidence of record, o particularly include the above-noted lay statements of record and seemingly favorable medical opinion evidence. See 38 U.S.C. § 5103A 2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion provided or obtained is adequate for the determination being made). The Veteran is hereby notified that failure to report to the scheduled examination, , without good cause, may well result in denial of his reopened claim. See 38 C.F.R. § 3.655(b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to accomplishing action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file (in VBMS and Virtual VA) all outstanding, pertinent records, to include records of VA evaluation and/or treatment of the Veteran dated since January 2014. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly, as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1) (2012); but see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since January 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available record and/or responses from each contacted entity are associated with the claims file, and arrange for the Veteran to undergo VA examination , by an appropriate physician, to obtain information as to the nature and etiology of all current back disability(ies The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report must include discussion of the Veteran's documented medical history and assertions. Following examination of the Veteran and review of the record, the examination should clearly identifying all back disability(ies)-to include back muscle strain-currently present, or present at any point pertinent to the November 2010 claim (even if now asymptomatic or resolved).. Then, with respect to each such diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during, or is otherwise medically related to, the Veteran's active military service, to injury associated with the Veteran being hit in the back with a forklift. In rendering the requested opinion, the examiner must consider and discuss all relevant medical and other objective evidence, to include February 2012 private positive etiology opinion between in-service injury and diagnosed muscle back strain. The examiner must also consider and discuss all lay assertions-to include the Veteran's competent assertions as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of diagnosis of or treatment for a specific disability in or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility 6. To help avoid another remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall l v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the service connection claim, on the merits, in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication), and legal authority. 8. If the benefit sought on appeal remain denied, furnish to the Veteran a supplemental SOC that includes clear reasons and bases for all determinations, and afford him an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the Court for additional (CONTINUED ON NEXT PAGE) development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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 the appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs