Citation Nr: 18140663 Decision Date: 10/05/18 Archive Date: 10/04/18 DOCKET NO. 14-15 517 DATE: ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for chronic low back strain is granted. REMANDED The issue of entitlement to service connection for low back strain, claimed as low back pain with muscle dysfunction, is remanded. FINDINGS OF FACT 1. A June 2006 rating decision denying the Veteran’s original claim of service connection for low back strain became final after a failure to appeal. 2. Evidence added to the record since the original rating decision presents a reasonable possibility of substantiating the Veteran’s low back strain claim on the merits. CONCLUSIONS OF LAW 1. The RO’s June 2006 denial of service connection for low back strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence has been submitted to reopen the previously denied claims of entitlement to service connection for low back strain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Air Force from September 1999 to April 2000 and from February 26 to September 23, 2002. He served with the Air Force National Guard from May 1999 to May 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence The Board is required to consider the question of whether new and material evidence has been received to reopen the claim without regard to the RO’s determination in order to establish the Board’s jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Here, a June 2006 rating decision denied the Veteran’s original claims of service connection for a low back strain. He did not appeal those determinations, and no new material evidence was submitted within a year following notification of the June 2006 denial. The June 2006 rating decision is therefore final. The prior final decision denying service connection for low back pain was based on the finding that the Veteran did not have a permanent residual or chronic disability as the Veteran’s provided medical records did not show any treatment for the condition after 2003. The Veteran filed a new claim in April 2009, which was subsequently denied in June 2009 for lack of new and material evidence. The Board finds that new and material evidence has been presented sufficient to reopen these claims. New evidence includes October 2006 and April 2009 treatment records from a private physician which show complaints of chronic low back pain. There are also 2013 VA treatment records which show continued complaints and treatment of chronic low back pain. Additionally, the records include a January 2014 VA examination for low back pain which show a new diagnosis of mild degenerative disc disease of the lower lumbar spine. Finally, in the Written Brief Presentation dated September 4, 2018, it was noted that the Veteran stopped getting treatment for his back due to lack of health insurance after separating from service. The Board finds that new and material evidence has been submitted as to the claim of service connection for low back strain. Accordingly, this claim is reopened. REASONS FOR REMAND Service Connection for Low Back Strain The Veteran contends that he has chronic low back pain because of his duties while serving at Thumrait AFB, Oman between February 2002 and August 2002. The Veteran contends that he was told to move boxes that were a 4-6 man lift, but there were only two people to lift the boxes. The Veteran added that he slept on a cot in Oman, which may have contributed to his back pain. The Veteran believes that his VA examination was inadequate because the examiner did not have all the records regarding his condition available to review. In a statement dated February 2016, the Veteran stated that he had an MRI scan “showing degradation of the disk space in [his] back, but the VA did not appear to have these records. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the below noted reasons, the Board finds that, while the Veteran underwent a VA examination in January 2014 regarding his claim for service connection for a low back pain disability, an addendum to the previous exam and/or an additional VA examination is necessary. The Board notes that the Veteran underwent a VA examination in January 2014 with an examiner contracted through the VA. The Veteran had a radiology exam with a contracted VA provider in January 2014 which showed L5-S1 mild/moderate disc and facet degenerative change. On the VA Back (Thoracolumbar Spine) Conditions Disability Benefit Questionnaire (DBQ), the examiner diagnosed the Veteran with mild degenerative disc disease of the lower lumbar spine. The reviewing examiner opined that the low back pain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale for his opinion was that he did not have sufficient documentation to determine whether the Veteran’s low back strain was service-connected without resorting to mere speculation. The examiner further stated that the Veteran’s separation record was unavailable for review to evaluate whether the claimant had reported the ongoing back problem upon discharge from service. Upon review of the Veteran’s records, beginning in September 2002, during a separation examination, the Veteran reported dull low back pain that started while deployed in Oman and reported no improvement in his condition upon returning from deployment. The Veteran reported the low back again during a January 2003 examination and further stated that he sought treatment at a Naval Hospital. The Veteran continued seeking treatment for his low back pain with physical therapy from January 2003 to April 2003. The Veteran continued to report low back pain on October 2006, April 2009, and September 2013. In October 2013, the Veteran sought treatment at a VA medical center where X-ray imaging was conducted showing a slight narrowing of the L5-S1 disk space and some slight narrowing in the upper T12-L1, L1-2 region. The Veteran also had an examination with the Doctors Clinic in January 2014 where the physician recommended an MRI, medication, and a physical therapy consultation to remedy the back pain. The Veteran continued to complain about back pain in July 2014. The Veteran’s file also included a Line of Duty Determination signed in May 2003 affirming that the Veteran suffered a low back injury while deployed in Oman. The Board notes that the VA examiner had an incomplete record when rendering his opinion on the Veteran’s low back pain and did not discuss the Veteran’s 2013 treatment at a VA Medical Center, his Line of Duty Determination showing an in-service low back injury in Oman, or his January 2014 diagnosis of mild degenerative disc disease of the lower lumbar spine. Furthermore, the Board notes that the examiner did not consider the Veteran’s assertions about when his low back pain started and his continued complaints. Therefore, on remand, an opinion which takes all the Veteran’s allegations as well as all the evidence of record into account, should be obtained. The matter is REMANDED for the following action: 1. Obtain any outstanding service treatment records, specifically from the Naval Hospital in Everett, WA to verify in-service treatment of the claimed low back condition. 2. Obtain any recent and outstanding VA treatment records to verify any continued treatment for the claimed low back condition. 3. Obtain an Authorization for Release of Information for the Doctors Clinic. 4. Obtain any recent and outstanding private treatment records from the Doctors Clinic to verify past and current treatment for the claimed low back condition, including possible results from an MRI scan. 5. After completing the above, obtain an addendum opinion or schedule the Veteran for an examination, based upon the recommendation, from an appropriate clinician to determine the nature and etiology of his claimed low back condition. After reviewing the entire claims file, the examiner should: (A) Identify all diagnoses of a low back condition. (B) As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability is related to the Veteran’s military service, to include his reported low back strain after lifting boxes and sleeping in a cot while serving in Oman. (C) In offering any opinion, the examiner should consider the service treatment records including the showing that the Veteran complained of low back strain as early as September 2002, the Line of Duty Determination for the low back injury, the January 2014 DBQ with a diagnosis, and the medical documentation of continued complaints of low back strain after separation from service. Any opinion expressed should be accompanied by a complete rationale. 6. Once the above requests have been completed, to the extent possible, readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel