Citation Nr: 18142568 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-32 802 DATE: October 17, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for back disorder, previously characterized as spondylolysis of the lumbosacral spine, is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for back disorder is remanded. FINDINGS OF FACT 1. In a final decision issued in November 1967, the Agency of Original Jurisdiction (AOJ) denied service connection for a back disorder, characterized as spondylolysis of the lumbosacral spine. 2. In a final decision issued in April 1994, the AOJ reopened the claim of entitlement to service connection for a back disorder, characterized as spondylolysis of the lumbosacral spine, and denied the claim on the merits. 3. Evidence associated with the record since the April 1994 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder. CONCLUSIONS OF LAW 1. The November 1967 rating decision that denied service connection for a back disorder, characterized as spondylolysis of the lumbosacral spine, is final. 38 U.S.C. § 4005(c) (1964) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. § 3.104, 19.118, 19.153 (1966) [38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017)]. 2. The April 1994 rating decision that reopened and denied service connection for a back disorder, characterized as spondylolysis of the lumbosacral spine, is final. 38 U.S.C. § 7105(c) (West 1991) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993) [(2017)]. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to April 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2015 by a Department of Veterans Affairs (VA) Regional Office. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a back disorder, previously characterized as spondylolysis of the lumbosacral spine. By way of background, VA received the Veteran’s original claim for service connection for a back disorder August 1967. Thereafter, in a November 1967 rating decision, the AOJ considered the Veteran’s service treatment records and pre-service medical records, and found that the evidence clearly established that the Veteran’s congenital defect in the spine was not aggravated during service. Specifically, it was observed that he entered service with spondylolysis L5-S1, left side, with lumbarization of S1 and congenitally abnormal facet right side at L5-S1 as noted on his January 1967 induction examination and, as determined by an April 1967 Medical Board, such was not aggravated by service. Consequently, the AOJ denied service connection for a back disorder, characterized spondylolysis of the lumbosacral spine. Later that month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. In this regard, while the Veteran submitted copies of his service treatment records in May 2015 and his service personnel records were received in June 2015, such are not relevant to the instant claim. Specifically, they are either duplicative of those previously considered or do not address the etiology of the Veteran’s back disorder. Therefore, the November 1967 rating decision is final. 38 U.S.C. § 4005(c) (1964) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. § 3.104, 19.118, 19.153 (1966) [38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017)]. Thereafter, the Veteran filed an application to reopen his previously denied claim for service connection for a back disorder in December 1993. In an April 1994 rating decision, the AOJ considered the Veteran’s service treatment records, pre-service treatment records, post-service VA treatment and private records, and a February 1994 VA examination, and found that, while the evidence received since the November 1967 rating decision was new and material, such nonetheless still failed to show that his back disorder was aggravated by his military service. Later that month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement. Furthermore, the Board finds no new and material evidence was physically or constructively received within one year of the issuance of such decision. In this regard, while a December 1994 private treatment record was subsequently submitted, such was received in July 2016. Further, as discussed in connection with the November 1967 rating decision, no relevant service department records have since been received. Therefore, the April 1994 rating decision is final. 38 U.S.C. § 7105(c) (West 1991) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As previously discussed, the Veteran’s claim for service connection for a back disorder has been denied on two previous occasions, to include most recently in April 1994, on the basis that the evidence fails to show that his pre-existing disorder was not aggravated by service. Since the issuance of the April 1994 rating decision, additional evidence consisting of private treatment records and lay statements has been received. Here, the Board finds pertinent private treatment records dated in December 1994 and May 2016 that reflect additional diagnoses referable to the Veteran’s back. Upon review, the Board finds this evidence suggests the possibility that a back disorder separate from a congenital defect may be related to the Veteran’s military service, to include by way of incurrence or aggravation. As such, the Board finds the evidence associated with the record since the final April 1994 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder. Consequently, new and material evidence has been received to reopen the claim. REASONS FOR REMAND 2. Entitlement to service connection for a back disorder. As previously discussed, as the newly received evidence reflects various diagnoses of a back disorder. Consequently, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his claimed back disorder. Additionally, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claim on appeal that have not been obtained. Thereafter, all identified records should be obtained, particularly to include any records related to surgery performed in approximately December 1994. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, particularly to include any records related to surgery performed in approximately December 1994. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination of determine the etiology of any current back disorder. The record and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the record has been reviewed. Thereafter, the examiner should address the following inquiries: (A) Identify all current back disorders. (B) If spondylolysis L5-S1, left side, with lumbarization of S1 and congenitally abnormal facet right side at L5-S1, is diagnosed, offer an opinion as to whether such constitutes a congenital defect or a congenital disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (i) If the Veteran’s diagnosed spondylolysis L5-S1, left side, with lumbarization of S1 and congenitally abnormal facet right side at L5-S1 is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. (ii) If the Veteran’s diagnosed spondylolysis L5-S1, left side, with lumbarization of S1 and congenitally abnormal facet right side at L5-S1 is considered a disease, did such increase in severity during service? If so, is there clear and unmistakable evidence that such increase in severity is due to the natural progress of the condition? (C) For all other currently diagnosed back disorders, did such clearly and unmistakably pre-exist the Veteran’s entrance into active duty in January 1967? (i) If so, is there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of the Veteran’s disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If not, is it at least as likely as not that the disorder(s) is directly related to service, to include as a result of sleeping on cots? A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel