Citation Nr: 18144924 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-02 481 DATE: October 25, 2018 ORDER The petition to reopen the claim for service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. In a February 1985 rating decision, the RO denied service connection for a low back disability on the basis that the evidence did not show a chronic low back condition. The Veteran did not file a notice of disagreement; therefore, the decision became final. 2. Evidence received since the February 1985 Board decision relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability and raises a reasonable possibility of substantiating the claim. . CONCLUSION OF LAW New and material evidence has been received to reopen the claim for entitlement to service connection for a low back disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to June 1983. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in June 2018. A transcript of the hearing is of record. Whether new and material evidence has been received to reopen a claim for service connection for a low back condition Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a September 1984 rating decision, the RO denied service connection for a back condition because the Veteran failed to report for a scheduled VA examination. Within one month of that decision, the Veteran requested that the RO reschedule the VA examination. The Veteran underwent VA examination in January 1985. In a February 1985 rating decision, the RO continued to deny service connection for a low back condition on the basis that the evidence did not show a chronic low back condition. The Veteran was notified of the decision in a March 1985 letter, but did not file a timely notice of disagreement; therefore, the decision became final. In January 2011, the Veteran attempted to reopen his claim of service connection for a low back disability. Since the February 1985 rating decision, evidence added to the claims file includes VA treatment records, private treatment records and opinions, lay statements, and hearing testimony. According to a VA treatment record dated in November 2011, the physician’s assessment that the Veteran has chronic back pains more likely than not related to service time injury. The Veteran also submitted a private opinion dated in May 2018 noting that it is just as likely as not that his back injuries began during military service and may have been exacerbated by completion of basic training immediately following the injury. In June 2018, the Veteran testified that he injured his back in service while changing a truck tire. He testified that he went to sick call in service, and has experienced back pain since that time. He further stated that he has since undergone various treatments including back surgeries. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final February 1985 rating decision. New evidence submitted since the RO’s February 1985 rating decision contains competent testimony of an in-service back injury and evidence of a current back disability purported to be related to active service. Therefore, new and material evidence has been received since the RO’s February 1985 decision, and reopening the claim of entitlement to service connection for a low back disability is warranted. The Veteran’s appeal is granted only to this extent. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4)(i). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). In June 2018, the Veteran testified that he injured his back in service while changing a truck tire. As noted above, a VA treatment record indicates that the Veteran has chronic back pains more likely than not related to service injury and a May 2018 private opinion notes that it is just as likely as not that the Veteran’s back injuries began during military service and may have been exacerbated by completion of basic training immediately following the injury. While the November 2011 and May 2018 medical opinions are enough to reopen the claim, the opinions are inadequate to decide the merits. It is not clear from the reports that either examiner reviewed the records. The Veteran has not been afforded a recent VA examination to determine the nature and etiology of a currently diagnosed back disability. Therefore, remand is necessary for a VA examination prior to rendering a decision on the appeal The matter is REMANDED for the following actions: 1. Obtain and associate with the record all outstanding VA treatment records, dated since December 2012. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and etiology of low back disability. The examiner should review the Veteran’s claims file, including a copy of this remand, in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Based on the examination results and a review of the record, the examiner should provide the following opinions: a. Determine whether the Veteran has a current low back disability. 3. b. For any current low back disability, determine whether it is at least as likely as not (a 50 percent probability or greater) that such disability had its onset in service or is otherwise related to active service, to include the Veteran’s contention regarding changing a tire. c. For any arthritis, the examiner is asked to determine whether it became manifest to a compensable degree within one year of discharge from service. In rendering the above opinions, the VA examiner must consider and address the Veteran’s service treatment records; lay assertions including claims of continuity of symptomatology; November 2011 and May 2018 treatment notes; and other pertinent private treatment records and prior VA examination report findings. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel