Citation Nr: 18142435 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-18 202 DATE: October 15, 2018 ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for a low back disorder, the claim is reopened. To this extent only the benefit sought on appeal is allowed. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for residuals of a head injury is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The evidence received since the last prior denial of service connection for a low back disorder was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence having been received to reopen the claim of entitlement to service connection for a low back disorder, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1976 to January 1979. This matter is before the Board of Veterans’ Appeals (Board) originally on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence to reopen service connection for low back disorder The Board notes that service connection was previously denied for a low back disorder by a March 1999 rating decision. Although the Veteran initiated an appeal to that decision by filing a Notice of Disagreement, he did not perfect his appeal by filing a timely Substantive Appeal after a Statement of the Case was promulgated in May 1999. See 38 C.F.R. §§ 20.200, 20.302. Therefore, that decision is final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has held that to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). Moreover, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Veteran reports having recurrent back problems since service. The Board finds that the evidence received since the last prior denial was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. As such, new and material evidence has been received in accord with 38 C.F.R. § 3.156(a) and the claim is reopened.   REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. 2. Entitlement to service connection for residuals of a head injury is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. In a July 2018 letter, the Board acknowledged that VA treatment records were added to the record since the March 2015 Statement of the Case and asked the Veteran whether he wished to waive initial agency of original jurisdiction consideration of the evidence. The Board indicated that if no response were received within 45 days, it would assume that the Veteran wished to have the case remanded to the agency of original jurisdiction. To date, there has been no response and thus the Board must remand this matter. As to the merits of the appeal, the service treatment records confirm he sustained a low back injury in March 1976 after falling from a rack. Although there is no evidence of a head injury, he reported that such occurred in this same fall where he injured the back. As the Veteran is competent to describe such an injury, his account of the head injury is conceded. He has also reported that his psychiatric symptomatology originated in 1978, which is during his active service. Further, he has reported that he developed alcohol problems in his teens, and other substance abuse problems in his 20s, which is consistent with the time period when he was on active duty. Despite the foregoing, the Board also finds that the nature and etiology of his claimed disabilities is not clear from the evidence of record. For example, there does not appear to be any in-service treatment for back problems subsequent to 1976; and there does not appear to be any treatment for head injury or psychiatric problems during service. Moreover, his head, spine, and psychiatric condition were clinically evaluated as normal on his January 1979 discharge examination. The Board further notes that while the post-service medical records reflect a current low back disorder, all treatment appears to be years after service and subsequent to a work-related back injury in 1994. Similarly, his current psychiatric problems have been attributed to circumstances other than service, to include childhood trauma. In addition, it is not clear from the post-service medical records whether he has any current residuals of the purported in-service head injury. In view of the foregoing, the Board finds that a remand is required to accord the Veteran competent medical examination and opinion to clarify the nature and etiology of his claimed low back disorder, head injury residuals, and acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records which cover the period from March 2015 to the present. 2. Request the Veteran identify all medical care providers who have treated him for the claimed low back disorder, head injury residuals, and acquired psychiatric disorder from March 2015 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his back, head injury, and psychiatric symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a competent medical examination(s) by an appropriately qualified clinician(s) to address the nature and etiology of his claimed low back disorder, head injury residuals, and acquired psychiatric disorder. For any pertinent disability found to be present, the respective examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of active service. The opinion should reflect consideration of the documented in-service back injury from a fall in March 1976; and that his account of also sustaining a head injury in that fall has been conceded to be true. A complete rationale for any opinion expressed should be provided, to include if the examiner(s) determine an opinion cannot be provided without resort to speculation. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel