Citation Nr: 18144513 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-05 799 DATE: October 24, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for residuals of a back injury is granted. REMANDED Entitlement to service connection for residuals of a back injury is remanded. Entitlement to service connection for a left hip disability, to include hip replacement, is remanded. FINDINGS OF FACT 1. In a January 1991 rating decision, the RO denied a claim for entitlement to service connection for a back injury; the decision was not appealed and evidence was not received within a year of the decision. 2. Evidence received since the January 1991 rating decision is new, and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The January 1991 rating decision that denied service connection for a back injury is final. 38 U.S.C. § 7104 (b) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence added to the record since the January 1991 rating decision is new and material; the claim for entitlement to service connection for a back injury is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1943 to January 1946. These matters come to the Board on appeal from a December 2011 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a September 2015 hearing. A transcript of that hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (West 2014). 1. New and material evidence to reopen a claim of entitlement to service connection for residuals of a back injury. A January 1991 rating decision initially denied entitlement to service connection for a back injury. The Veteran did not appeal that decision nor submit additional evidence within a year of the decision. Thus, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In December 2010, the Veteran submitted a claim to reopen the claim for entitlement to service connection for a back injury. The December 2011 rating decision on appeal did not discuss the finality of the January 1991 rating decision, but the text of the decision reflects that the claim was reopened and the reopened claim was considered de novo. The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105 (2017). The issue of reopening a claim goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO’s action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is received or submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the 1991 rating decision, the Veteran has attended multiple VA examinations, showing a current low back disability. The Board notes that these examinations and accompanying diagnoses are new, as they were not considered in the 1991 rating decision. The Board finds them material as they relate to diagnoses that may potentially be linked to service, a fact that remains unestablished in this case. See 38 C.F.R. § 3.156. Therefore, the evidence is new and material. Accordingly, the claim of entitlement to service connection for residuals of a back disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The reopened claim is addressed in the Remand below. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for a left hip disability, to include hip replacement. The Veteran attended a VA examination in September 2016 to determine the nature and etiology of his back and hip disabilities. There, the examiner found that it was less likely than not that his back and hip disabilities were related to service. With regard to the Veteran’s back, the examiner stated that there is no documentation in the record regarding a back injury in service, and that there is a 70 year gap since separation from service. The examiner was unable to confirm whether the Veteran’s current back condition is related to the injury that occurred during service without resorting to mere speculation. With regard to the Veteran’s hip, the examiner stated that there was no documentation in the record regarding continued care and treatment of a hip condition, and that there was a 70 year gap. The examiner was also unable to confirm the hip condition was related to an injury in service without resorting to speculation. The Board finds these opinions inadequate for decision making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). First, the examiner notes a “70 year gap” with regard to both disabilities. While the Board can infer the examiner is referencing a 70 year gap in treatment since service, the examiner does not address the lay statements of record from the Veteran’s daughter, which document problems with the Veteran’s back and hip much earlier. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, a November 2011 VA examination specifically notes reports of hip pain for 25 years prior to the Veteran’s hip replacement surgery. It is logical to assume that the Veteran’s hip condition began some time before he received a hip replacement surgery, although not fully documented in medical treatment records. The examiner also supports the conclusion that it is less likely than not that the Veteran’s conditions are related to the in-service injury because he cannot confirm they are related. The Board notes that the examiner is not required to confirm that the current conditions are related to service, but only requires the examiner to determine whether they are at least as likely as not related. As such, the examiner has not addressed the Veteran’s conditions using the appropriate legal standard. As such, an addendum opinion is required on remand to address the above deficiencies. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to the examiner who completed the September 2016 VA opinions, or, if that examiner is unavailable, to another suitably qualified examiner for completion of an addendum opinion. The examiner should review the entire record, and note the review in his/her report. If additional examination of the Veteran is deemed necessary by the clinician in order to provide any requested opinion, such examination should be scheduled. The examiner must provide opinions as to the following: a) Is it at least as likely as not (50 percent probability or more) that the Veteran has a back disability that is related to his active duty service, to specifically include his reports of a back injury from an explosion. The examiner must review the entire record and consider the Veteran’s and lay witness’ statements as to onset. The examiner must provide a complete rationale for the opinion proffered. If the requested opinion cannot be provided without resort to speculation, the examiner must explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the inability is due to the absence of any evidence, the examiner should state what evidence would be needed for an opinion to be provided. b) Is it at least as likely as not (50 percent probability or more) that the Veteran has a left hip disability that is related to his active duty service, to specifically include injury from an explosion. The examiner must review the entire record and consider the Veteran’s and lay witness’ statements as to onset. If additional examination of the Veteran is deemed necessary by the clinician in order to provide the requested opinion, such examination should be conducted. The examiner must provide a complete rationale for the opinion proffered. If the requested opinion cannot be provided without resort to speculation, the examiner must explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the inability is due to the absence of any evidence, the examiner should state what evidence is needed for an opinion to be provided. 2. After completion of the above, readjudicate the issues on appeal. If any benefit sought remains denied, then   issue a supplemental statement of the case, and afford the Veteran an appropriate period to respond, before returning the matter(s) to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel