Citation Nr: 0713810 Decision Date: 05/10/07 Archive Date: 05/25/07 DOCKET NO. 04-34 130 ) 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 claim of service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Shonk, Associate Counsel INTRODUCTION The veteran served on active duty from November 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In September 1999, the Board denied a claim of service connection for a low back disability primarily because the competent and probative evidence found no nexus between a current back disability and in-service grenade injury. 2. For the purpose of whether to reopen the claim, medical evidence received since the Board's September 1999 denial suggested a nexus between a current back problem and in- service grenade injury. CONCLUSIONS OF LAW 1. The Board's September 1999 decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2006). 2. New and material evidence has been received since the September 1999 decision, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Given the favorable outcome below, VA's application of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), need not be considered at this time. The claim of service connection for a low back disability is reopened for consideration on the merits. Generally, an unappealed Board denial is final under 38 U.S.C.A. § 7104(b), and the claim may only be reopened through the receipt of "new and material" evidence. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and 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. 38 C.F.R. § 3.156(a). 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. Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran's service medical records are silent concerning any complaint or treatment regarding back problems. A July 1969 Report of Medical Examination at separation rendered a normal clinical evaluation concerning the spine, and this finding had not changed for an August 1969 examination. The veteran's DD Form 214 shows that he received a National Defense Service Medal; Vietnam Service Medal w/1*; Rifle Marksmanship Badge; Vietnam Campaign Medal w/device; Purple Heart Medal; Combat Action Ribbon; and RVN Cross of Gallantry w/Palm. Post-service, a January 1980 VA examination addressed the veteran's in-service shrapnel wound injuries, and there was no mention of a back problem. A March 1980 rating decision granted service connection for multiple fragment wounds, and noted that x-rays had revealed scatter flecks of metal debris in the pelvic region, and in the both thighs. At a March 1984 VA examination, the veteran complained of swelling in multiple joints in his body, and numbness on the lateral side of the left thigh. Testing noted sensory to pinprick was questionably decreased on the lateral and anterior part of the left thigh. Assessment included symptom of myalgia paresthetica of the left lower extremity. At an August 1996 VA examination, the veteran complained that he had some bad back problems, and described his grenade wounds during Vietnam. The examiner found some limitation of motion of the low back, and stated that the problems with the veteran's lumbar spine were probably not related to the hand grenade injury. At an April 1997 RO hearing, the veteran testified that after the in-service injury he had been put on convoys and his back would bother him. Also, his leg had burned. A May 1998 VA treatment record contained the veteran's complaints of lower extremity weakness and pain. The impression was low back pain. In September 1999, the Board determined that the veteran's claim of service connection for a low back disability was not well-grounded. Particularly, the veteran's service medical records had been negative for any back problem; a diagnosis of low back pain was rendered decades after separation for active duty; and given the August 1996 VA examiner's opinion that a back problem was not related to a grenade injury, the record lacked evidence of a nexus between a current disability and military service. At a May 2002 VA examination performed pursuant to other then-pending claims, the veteran also related that he had had numbness and tingling of the left leg since being involved in an explosion in Vietnam in 1969, at which time he had sustained a ruptured disc. A physical examination found diminished sensation of the left leg in its entirety. The examiner's impression was traumatic arthritis and disc disease of the lumbar spine with neuritic symptoms of the left leg, chronic, progressive, moderate disability. In September 2003, the veteran sought to reopen a claim of service connection for a low back disability. Records gathered pursuant thereto contained a July 2001 VA MRI report that found lipomatosis of the lower lumbar spine, and disc bulge at L4/L5, L5/S1, and desiccated disc at L5/S1. In July 2003, the veteran sought management of increasing low back pain. The assessment was chronic low back pain with questionable radiculopathy, degenerative joint disease, and diabetes mellitus likely causing distal lower extremity numbness. It appears that since the last final denial in the September 1999 Board decision, new and material evidence has been added to the record. Particularly, this latter decision had denied the claim in significant part because the competent and probative evidence had sufficiently found no nexus between a back problem and a grenade injury. Since then, however, a May 2002 VA examination finding tangentially suggested a nexus between a current back disability and a grenade injury in service. Thus, this piece of evidence is new, and at least raises a reasonable possibility of substantiating the claim. Additionally, the veteran's recent testimony, which is presumed credible for the purpose of reopening a claim, see Justus v. Principi, 3 Vet. App. 510 (1992), indicated that he had experienced numbness and tingling of the left leg since service. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (recognizing that that an appellant's testimony, when introduced for the purpose of a factual matter of in-service experience, should be assessed in light of potentially corroborating evidence). As such, the veteran's claim of service connection for a low back disability is reopened. ORDER New and material evidence having been received, a claim of service connection for a low back disability is reopened. REMAND In light of the VCAA, additional evidentiary development is necessary. Particularly, the medical evidence of record is inadequate for the purpose of adjudication. It is noted that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b). In this case given the veteran's award of a Purple Heart and Combat Action Ribbon, it is conceded that the veteran injured his back from a grenade injury during combat. Notably, however, section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service, id., and competent medical evidence is still generally required to address the questions of either current disability or nexus to service, see Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996) (quoting Caluza v. Brown, 7 Vet. App. 498, 507 (1995)). Pointedly, the veteran has not been shown to have medical expertise and his opinion in regard to etiology is not competent. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that lay persons are not competent to offer evidence that requires medical knowledge). First, the May 2002 VA examiner apparently had not reviewed the veteran's claims file, including a medical history of the veteran's back since military service. Second, recent medical evidence has raised questions concerning the nature of the veteran's current back disability, including whether he suffered from any radiculopathy. Thus, a fully informed medical examination is necessary to clarify a current diagnosis, and to offer a nexus opinion. See generally Wilson v. Derwinski, 2 Vet. App. 16, 21 (1991) (recognizing that when the evidence before the Board was inadequate, a remand was required for a contemporaneous and thorough examination, which took into account the records of prior medical treatment for a fully informed decision). Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a letter that complies with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), such that the veteran is provided relevant information concerning a disability rating and effective date. The RO should also provide information about what evidence is necessary to substantiate a claim of service connection; provide the veteran with information of what information he is to provide and what information VA will attempt to obtain; and ask the veteran to provide any evidence in his possession that pertains to the claim. 2. The RO should update the record with any recent and outstanding VA treatment records. 3. The veteran should be provided a VA examination. The examiner should review the entire claims file. The examiner should clarify the nature of any current disability related to the veteran's back, including any neurological complications. Assuming that the veteran hurt his back in combat during a grenade injury, the examiner should opine whether it is at least as likely as not that any current low back disability is related to military service. An opinion should be supported by a rationale. 4. Then, the RO should readjudicate a claim of service connection for a low back disability. If the determination remains unfavorable to the veteran, the RO must issue a supplemental statement of the case and provide him a reasonable period of time in which to respond before this case is returned to the Board. 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.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs