New VA treatment records could provide nexus opinion, reopen Veteran’s claim
CCK Law: Our Vital Role in Veterans Law
History of the case
The Veteran served honorably in the United States Army from July 1967 to July 1969. While helping another soldier stuck in the mud he injured his back , thus resulting in an in-service injury. Treatment notes reflected the existence of low back pain from March 1996 through June 2009. In January 2008, the Regional Office denied service connection for a back condition. They cited a lack of evidence of a nexus between the current disability and the in-service injury. The Veteran did not appeal that decision. However, he requested to reopen his claim for service connection for the back in January 2010. VA denied this request.
Board denies request to reopen the claim for a low back disability based on lack of nexus opinion
In the decision on appeal, the Board found that the claim should not be reopened because no new and material evidence had been submitted since the previous denial of the claim in January 2008. Although new records added to the Veteran’s file referenced his back condition, the Board determined that none of these records indicated a nexus to service. Thus they were not material. Instead, the Board found that these treatment records were only indicative of a current disability. However, this element had already been established when the RO previously denied the claim.
The Court agrees with CCK’s arguments
CCK appealed this decision to the Court of Appeals for Veterans Claims. The Court agreed that the Board erred in its decision. Specifically, it provided an inadequate statement of reasons or bases for finding that the VA records merely evidenced a current disability, and did not pertain to nexus. Specifically, the Court found that the Board ignored that these documents may be evidence of a nexus between the Veteran’s present back condition, and post service symptomatology. The Veteran had a current diagnosis of degenerative joint disease in his lower back. Despite this diagnosis, the VA had never considered a theory of service connection based on continuity of symptomatology. Given the low threshold for reopening a claim, it was unclear why the Board did not consider this evidence new and material. The Court therefore vacated the Board’s decision and remanded the matter or further adjudication.
