Citation Nr: 1410138 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-40 800A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a low back disorder, to include as secondary to service-connected knee disorder. 2. Entitlement to service connection for a low back disorder, to include as secondary to service-connected right and left knee disorders. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from October 1979 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. The Nashville RO subsequently assumed jurisdiction. The newly reopened claim of service connection for a low back disorder, to include as secondary to service-connected right and left knee disorders, is remanded to the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied reopening of a claim for service connection for a low back disorder in May 2004. The Veteran was notified of this decision that same month and did not appeal nor was any evidence received within the one year period which would have allowed the claim to remain open. 2. Evidence received since the denial of entitlement to service connection for a low back disorder in May 2004 raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2004 rating determination denying reopening of a claim for service connection for a low back disorder became final. 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence sufficient to reopen the claim of service connection for a low back disorder has been received. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify In view of the Board's favorable decision on this claim as it relates to the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder, to include as secondary to the service-connected knee disorders, further notice or assistance is not required to substantiate reopening of the claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see 38 U.S.C.A. § 5103A(a)(2); see also VAOPGCPREC 5-2004. New and Material Evidence The Veteran brought prior claims for service connection for a low back disability. Most recently, the RO denied reopening of the claim in a May 2004 rating decision. The Veteran was notified of this decision in May 2004 and did not appeal nor was any evidence received within the one year period following notification of the denial which would have allowed the claim to remain open; thus, the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156. In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In May 2004, the RO noted that the claim for service connection for a low back disorder had previously been denied in June 1989 because the condition did not begin nor was it caused by military service. The RO observed that in connection with his request to reopen the previously denied claim, the Veteran submitted VA treatment records which showed treatment for back pain. The RO indicated that this was not material as this did not show his back condition began in service. The Board notes that service connection for a low back disorder, claimed as secondary to the service-connected left knee disorder was also denied by the RO in the June 1989 rating determination. The VA treatment records added to the record subsequent to the May 2004 rating determination note numerous complaints by the Veteran of his knees causing/aggravating his low back disorder. An April 2011 VA treatment record can possibly be interpreted as relating the Veteran's back problems to his service-connected knees. The Veteran has also provided more detail as to how he injured his back at the same time that he injured his knee. Service connection for a right knee disorder has now also been granted, which was not in effect at the time of the prior denial. The subsequent findings noted in the newly received additional treatment records relate to previously unestablished elements of the claim of a current disability and a possible link between the current disability and service and/or the Veteran's service-connected knee disorders and provide a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the May 2004 rating determination is new and material to reopen service connection for a low back disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The reopened issue will be addressed in the remand portion below. ORDER The appeal to reopen service connection for a low back disorder, to include as secondary to service-connected knee disorder, is granted. REMAND As the claim of service connection for a low back disorder has been reopened, the Veteran should be afforded a VA examination to determine the nature and etiology of any current low back disorder and its relationship, if any, to his period of service and/or his service connected right and left knee disorders. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination by an appropriate medical specialist to determine the nature and etiology of any current low back disorder. All indicated tests and studies should be performed and all findings should be reported in detail. The claims folder, a copy of this remand, and all other pertinent records, including those records in VA's electronic system, should be made available to the examiner for review and the examiner should note such review in his/her report. With regard to any identified low back disorder, the examiner is requested to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current low back disorder is related to the Veteran's period of active service. If not, is it at least as likely as not (50 percent probability or greater) that any current low back disorder is either caused or aggravated (permanently worsened) by the Veteran's service-connected right and left knee disorders. All examination results, along with the complete rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. 2. After undertaking any other development deemed appropriate, the RO must readjudicate the claim on a de novo basis. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 2013). ______________________________________________ J.B. FREEMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs