Citation Nr: 18139548 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 14-11 826 DATE: October 1, 2018 ORDER As new and material evidence has been received to reopen the claim for entitlement to service connection for disc bulge/disc herniation, to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a disc bulge/disc herniation is remanded. FINDINGS OF FACT 1. A February 1984 Board decision denied service connection for a back condition. The Veteran was properly notified of the decision. 2. Evidence received since the February 1984 Board decision relates to an unestablished fact necessary to substantiate the claim of service connection for disc bulge/disc herniation and raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The February 1984 Board decision that denied a claim for service connection for a low back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received, and the claim for service connection for disc bulge/disc herniation is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1977 to July 1980. Whether new and material evidence has been received to reopen a claim of service connection for disc bulge/disc herniation The Veteran asserts that he is entitled to service connection for disc bulge/disc herniation of the low back. The Veteran originally filed a claim for this condition in August 1981 and was denied service connection in a December 1981 rating decision, confirmed in a February 1984 Board decision. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). The February 1984 Board decision denied the Veteran’s claim for service connection for a low back condition based on a finding that there was no chronic back disorder and therefore the 2 instances of back pain in service were acute, transitory, and resolved themselves. The evidence of record at the time of the February 1984 Board decision consisted of the Veteran’s DD-214, service treatment records (STRs), hearing testimony of November 1982 and November 1983, and a VA examination of September 1981. The evidence associated with the claims file after the February 1984 Board decision includes a March 2012 VA examination, VA treatment records, VA X-Ray reports dated May 2010, lay statements from the Veteran from September 2011 and July 2013, and a May 2018 Appellant’s Brief. All of the evidence listed above is new in that it was not of record at the time of the February 1984 Board decision. Specifically, in relation to the claim for service connection for disc bulge/disc herniation of the low back, the May 2010 VA X-ray reports reflect mild lower lumbar degenerative changes. The X-ray reports are new, in that it was not previously of record. The X-ray reports are also material as the claim was last finally denied on the premise that the Veteran’s noted in-service episodes of back pain must have resolved without any residual disability. Since the claim was denied in February 1984 as there was no current back disorder, this new evidence relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. As new and material evidence has been received to reopen the claim for service connection for disc bulge/disc herniation of the low back, reopening the claim is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for a disc bulge/disc herniation of the low back is remanded. As the claim for service connection for a disc bulge/disc herniation of the low back is reopened, the Board must now shift to evaluating the claim on the merits. Unfortunately, a remand is necessary. The Veteran’s file was forwarded to a VA examiner in March 2012 for a nexus opinion considering the Veteran’s May 2010 and February 2011 MRI results. The VA examiner opined that the Veteran’s claimed condition was less likely than not related to his active duty service. He continued with a generalized rationale, stating that disc herniations were present in 22 to 40 percent of asymptomatic adults and that there are several risk factors for the onset of back pain. When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Further, medical examinations will be adequate when they “rest on correct facts and reasoned medical judgment so as inform the Board on a medical question and facilitate the Board’s consideration and weighing of that report against any contrary reports.” Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The Board finds that the March 2012 VA nexus opinion is inadequate as the examiner failed to discuss the Veteran’s specific case and situation and inaccurately asserted that the Veteran’s disc herniations were asymptomatic. However, the Veteran submitted a statement in September 2011 detailing that he cannot work due to his back condition, has had increasing episodes of back pain over the prior 5 or 6 years, cannot stand more than 15 minutes, and cannot get out of bed without assistance. As such, the Board finds the March 2012 VA opinion to be inadequate and upon remand, the Veteran should be afforded a current VA examination and a nexus opinion be provided as to the nature and etiology of his disc bulge/disc herniation of the low back. Further, the Veteran is in receipt of VA treatment for his back condition and the record indicates that the Veteran may receive private treatment for his condition. Therefore, on remand, and with any necessary assistance from the Veteran, those records should also be associated with the record. The matter is REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him VA Form 21-4142, obtain any identified private records showing treatment for his low back condition as identified by the Veteran. VA treatment records from August 2017 to the present should also be obtained. 2. Following the development in 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and possible relationship to service of his low back disability. The clinician must opine whether the Veteran’s current condition is at least as likely as not related to an in-service injury, event, or disease, including alleged treatment in service in December 1978 and February 1979. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. Evan M. Deichert Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel