Citation Nr: 18142833 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-31 168 DATE: October 17, 2018 ORDER New and material evidence to reopen a claim of entitlement to service connection for a low back disability has been received; to this extent, the appeal is granted. is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT 1. In an unappealed decision, dated in March 2012, the RO denied a claim for service connection for a low back disorder. 2. The evidence received since the RO’s March 2012 decision, which denied a claim for service connection for a low back disorder, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received since the RO's March 2012 decision; the claim for service connection for a low back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to October 1981. This matter is on appeal from a June 2013 rating decision New and Material Evidence Claim The Veteran most recently filed a request to reopen his claim for entitlement to service connection for a low back disability in May 2012. At the time of his last final denial, evidence of record included service treatment records, service personnel records, private treatment records, VA treatment records, and lay statements. Since the last final denial, evidence added to the record includes a July 2013 private medical opinion that the Veteran continued to suffer from low back symptoms related to an in-service injury. Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for a low back disability is reopened. REASONS FOR REMAND The Veteran contends that he has a low back disability that is related to his service. On March 2016 VA back Disability Benefits Questionnaire examination after reviewing the claims file and examining the Veteran, the examiner diagnosed lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome. The examiner noted complaints of back pain in the STRs. He noted a July 1996 x-ray of the lumbosacral spine which indicates a diagnosis of transitional lumbosacral vertebrae (congenital/developmental). He explained that this was common with this type of developmental anomaly. The examiner opined that the Veteran’s disc disease of the lumbar spine was less likely than not incurred in or caused by service based, in part, on the rationale that there was considerable evidence that the Veteran had a developmental anomaly of the lumbosacral spine which placed him at increased risk of accelerated degenerative disease of the lumbosacral region. However, he also indicated that there was no evidence in the STRS of any pre-existing back condition. He also opined that there was insufficient evidence that the Veteran sustained an injury during service that resulted in chronic back disability. However, it is unclear whether the Veteran has a congenital low back defect which was subject to a superimposed injury. In addition, subsequent to the March 2016 VA examination, the Veteran submitted private treatment records which include a July 2013 opinion that the Veteran sustained an in-service injury to his back in 1978 and has had continual problems since that time with varying degrees of aggravation. On these bases, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s low back disability is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA undertakes to provide an examination it is obligated to ensure that the examination is adequate). See also 38 U.S.C. § 5103A (d) (2012). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an examiner other than the March 2016 VA examiner which addresses the nature and etiology of his low back disability. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. a) For each low back disability diagnosed, to include transitional lumbosacral vertebrae, please provide an opinion as to whether it is considered a congenital disease or congenital defect. b) For any congenital low back DEFECT currently shown, is it at least as likely as not (50 percent probability or more) that is was subject to a superimposed injury during service? c) If the proper classification of the Veteran’s current disability, to include transitional lumbosacral vertebrae, is a “disease process” of congenital, developmental, familial, or hereditary origin, provide an opinion as to whether it (not noted upon entry into service) clearly and unmistakably existed prior to the Veteran’s service entrance. d) If the Veteran has a low back disability, to include transitional lumbosacral vertebrae, which clearly and unmistakably pre-existed his service entrance, provide and opinion as to whether it clearly and unmistakably was NOT aggravated (permanently worsened) by service. If aggravation of this condition is found to exist, does evidence of record clearly and unmistakably show that such aggravation (i.e., a permanent worsening) of this condition is due to its natural progress? e) For any low back disability that did not pre-exist service, clarify whether it is at least as likely as not (probability of 50 percent or greater) that any low back disability had its onset during the Veteran’s service or is otherwise etiologically related to his service, to include in-service treatment for low back pain. The examiner should review and address the Veteran statements, buddy statements, statements made to medical providers, and the March 2016 VA examination and medical opinion. The reports of examination should include the complete rationale for all opinions expressed. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. (Continued on the next page)   (Continued on next page) KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel