Citation Nr: 18143803 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-28 244 DATE: October 23, 2018 ORDER The petition to reopen the claim of entitlement to service connection for lower back disability is granted. The petition to reopen the claim of entitlement to service connection for heart disability is granted. REMANDED The reopened issue of entitlement to service connection for lower back disability is remanded. The reopened issue of entitlement to service connection for heart disability is remanded. FINDINGS OF FACT 1. In an unappealed July 1980 rating decision, the RO denied service connection claims for back and heart disabilities. 2. Evidence received since the July 1980 rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for back and heart disabilities. CONCLUSIONS OF LAW 1. The July 1980 rating decision denying service connection for back and heart disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200 (2018). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for back and heart disabilities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training (ACDUTRA) between April and August 1970. The record indicates that he served as a reservist in the U.S. Army Reserve until 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2018, the appellant testified before the undersigned Veterans Law Judge in a videoconference hearing. A transcript of the hearing is included in the claims file and has been reviewed. Claims to Reopen Service Connection Since April 1980 the appellant has claimed service connection for back and heart disabilities. The RO denied the original claims in a July 1980 rating decision the appellant did not appeal to the Board. As the appellant did not appeal the decision, the decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200 (2018). In February 2013, the appellant filed a claim to reopen these service connection claims. In the June 2014 rating decision on appeal, the RO denied the claims. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO 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, VA shall reopen the claim and review the former disposition of the claim. 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). In the July 1980 final decision, the RO considered service treatment records (STRs) which are negative for heart problems, but which note a complaint of back pain in August 1970, private medical evidence indicating that the Veteran was found unfit for U.S. Army Reserve service in 1973 due to back and heart disorders, and lay statements from the appellant asserting that back and heart disability related to service. Based on this evidence, the RO denied the service connection claims. The evidence included in the record since the final July 1980 decision consists of additional lay assertions from the appellant connecting current heart and back disabilities to service, private medical evidence detailing treatment for back and heart disorders, letters from treating physicians dated in 1972 and 1973 which address back and heart disorders, and an August 2016 letter from a treating chiropractor who relates current back disability to an injury during ACDUTRA in 1970. This evidence is new evidence. Further, the Board finds material the additional lay and medical evidence. This information indicates that back and heart disorders may relate to ACDUTRA in 1970. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Indeed, there is a low threshold for determining whether evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Assuming for the purpose of this analysis the probative value of the new evidence, the evidence tends to prove previously unestablished facts (i.e., current disorder that may relate to service). Accordingly, the claims of entitlement to service connection for back and heart disabilities are reopened. REASONS FOR REMAND 1. The reopened issue of entitlement to service connection for lower back disability is remanded. 2. The reopened issue of entitlement to service connection for heart disability is remanded. The case should be remanded for additional development and medical inquiry. First, the dates of the appellant’s service should be clarified. Although it is clear he served on ACDUTRA between April and August 1970, it is not clear whether he served on other periods of ACDUTRA, or on inactive duty training (INACDUTRA) periods, prior to discharge from reserve service in 1973. On remand, the RO should attempt to clarify the dates and nature of the appellant’s reserve service. Second, the appellant should undergo VA compensation examination into his claims that reserve service caused current back and heart disability. See 38 U.S.C. § 101 (2012); 38 C.F.R. §§ 3.1, 3.6(a) (2018). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims. Include in the record outstanding VA treatment records, if any. All records/responses received must be associated with the claims file. 2. Determine whether the appellant served on any periods of reserve service besides the documented period of ACDUTRA between April and August 1970. All records/responses received must be associated with the claims file. 3. After the foregoing development has been completed, schedule the appellant for a VA compensation examination into his service connection claim for back disability. The examiner should review the claims file, and then address the following questions. (a). Is it at least as likely as not (i.e., probability of 50 percent or higher) that current back disability relates to a back injury experienced during the period of ACDUTRA between April and August 1970? In answering (a), accept as true that the appellant experienced back pain in August 1970 as the result of injuring his back during ACDUTRA in 1970. This is evidenced in the record by an August 1970 STR noting back pain and by the appellant’s multiple lay assertions in the record – dating from the early 1970s to 2018 – in which he describes injuring his back during ACDUTRA in 1970. In assessing whether the injury led to chronic back disability, consider and discuss all other evidence of record to include the private medical opinions, dated in 1972, 1973, and August 2016, which discuss back disability, the April 1973 separation reports of medical examination and history which note back disability, as well as the August 1970 discharge reports of medical examination and history which are negative for a back problem. (b). If the answer to (a) is negative, and it is determined that the appellant had a back disability prior to April 1970, is it at least as likely as not that a pre-service back disability increased in severity during any period of ACDUTRA or INACDUTRA between April 1970 and April 1973? In addressing (b), review the November 1972 letter from E.D., MD, which notes the appellant’s report of experiencing a back injury during a 1968 motor vehicle accident for which he underwent medical treatment prior to commencement of service in April 1970. Also consider and discuss the August 1970 STR noting back pain and the August 1970 discharge reports of medical examination and history which are negative for a back problem. If it is found that pre-service back disability increased in severity during any period of ACDUTRA or INACDUTRA from April 1970, support the finding with specific evidence showing an increase in severity. (c). If a pre-service back disability increased in severity during any period of ACDUTRA or INACDUTRA between 1970 and 1973, is it clear and unmistakable (i.e., undebatable) that the pre-service back disability was not aggravated (i.e., permanently worsened) by such service? In other words, is it clear and unmistakable that any in-service increase in severity you might find was due to the natural progress of the disorder? The examiner should not address (c) unless it is found under (b) that the appellant had a back disability prior to April 1970, and that the pre-service back disability as likely as not increased in severity during a period of ACDUTRA or INACDUTRA. If it is found that a pre-service back disability either did not exist or, if it did exist, did not increase in severity during such service, (c) must be ignored. Please explain in detail any opinion provided. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the development noted in paragraphs #1 and 2 has been completed, schedule the appellant for VA compensation examination into his service connection claim for heart disability. The examiner should review the claims file, and then address the following questions. (a). Is it at least as likely as not (i.e., probability of 50 percent or higher) that current heart disability is due to, or had its onset during, a period of ACDUTRA (i.e., the April to August 1970 ACDUTRA or any other period of ACDUTRA on which the appellant may have served)? In answering (a), discuss the medical evidence of record dated in the early 1970s, to include the letters from private physicians dated in 1972 and 1973. Also consider and discuss the April 1973 reports of medical examination and history which note heart disability, as well as the August 1970 reports of medical examination and history, which are negative for heart disability. (b). If the answer to (a) is negative, and it is determined that the appellant had a heart disorder prior to April 1970, is it at least as likely as not that a pre-service heart disability increased in severity during any period of ACDUTRA or INACDUTRA between April 1970 and April 1973? If it is found that pre-service heart disability increased in severity during any period of ACDUTRA or INACDUTRA from April 1970, support the finding with specific evidence showing an increase in severity. (c). If a pre-service heart disability increased in severity during any period of ACDUTRA or INACDUTRA between 1970 and 1973, is it clear and unmistakable (i.e., undebatable) that the pre-service back disability was not aggravated (i.e., permanently worsened) by such service? In other words, is it clear and unmistakable that any in-service increase in severity you might find was due to the natural progress of the disorder? The examiner should not address (c) unless it is found under (b) that a heart disability preexisted service beginning in April 1970, and that the pre-service heart disability as likely as not increased in severity during a period ACDUTRA or INACDUTRA. If it is found that a pre-service heart disability either did not exist or, if it did exist, did not increase in severity during such service, (c) must be ignored. (d). If you find that the heart disorder diagnosed in 1973 was a congenital disorder that preexisted commencement of service in 1970, is it at least as likely as not that a current heart disability besides the disorder diagnosed in 1973 is related to a period of service between 1970 and 1973? In other words, does the appellant have a current heart problem that amounts to a superimposed disability which, at least as likely as not, resulted from, and in addition to, the heart disorder that preexisted service and was noted in 1973? Do not answer (d) unless it has been determined that the heart disorder noted in 1973 was a congenital disorder. (Continued on the next page)   Please explain in detail any opinion provided. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel