Citation Nr: 18145194 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-42 014 DATE: October 26, 2018 ORDER New and material evidence has been associated with the claim file and the request to reopen the claim for entitlement to service connection for low back pain is granted. REMANDED Entitlement to service connection for low back pain is remanded. FINDING OF FACT 1. Service connection for, inter alia, low back pain, secondary to chronic lumbosacral strain, was denied by the RO in a February 1992 rating decision. The Veteran did not perfect an appeal the decision and the decision became final. 2. The evidence submitted since the RO’s February 1992 rating decision is relevant and probative of the issue of service connection for low back pain. CONCLUSION OF LAW 1. The February 1992 rating decision that, inter alia, denied service connection for low back pain, secondary to chronic lumbosacral strain, is final with respect to this issue. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the February 1992 decision, is new and material to the issue of entitlement to service connection for low back pain and the claim is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to May 1969. New and material evidence has been associated with the claim file and the request to reopen the claim for entitlement to service connection for low back pain is granted. A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In February 1992, the RO denied the Veteran’s claim for, inter alia, service connection for a back condition, secondary to chronic lumbosacral strain. The RO found that a lumbosacral strain was not shown in service. Service treatment records showed hospital admission in September 1968 for treatment of malaria and one of the presenting symptoms includes backache, which became asymptomatic the third hospital day. The Veteran submitted a notice of disagreement with this decision in July 1992. A statement of the case was issued in January 1993 and the issue of service connection for lumbar spine injury was denied because it was not shown during military service. The Veteran did not perfect an appeal as to this issue and the February 1992 rating decision became final. The Board has made a careful review of the record, and concludes that since the prior denial, material evidence has been associated with the file, affording sufficient grounds to reopen the Veteran’s claim. Specifically, the Board points to statements received in November 2013 from the Veteran which provide additional details as to an in-service injury which were not of record at the time of the prior denial. In the November 2013 statement the Veteran alleges that he injured his low back after falling into a fighting hole trench in Da Nang, Vietnam. This evidence was not previously of record, however, it serves to establish an injury in service. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board finds that this statement cures an evidentiary defect which existed at the time of the prior denial, namely that there was no in-service injury, and the Board will reopen the issue. As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for low back pain, is reopened and, in this regard, the Veteran’s appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service connection for low back pain is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, the Board finds that there may be outstanding service treatment records (STRs) that should be associated with the claim file. The record indicates that the service treatment records contained therein are incomplete. See Rating Decision, February 1992. This is supported by the fact that the Veteran appears to have suffered injuries from a grenade while in the Republic of Vietnam, yet there are only a few pages of service treatment records. The Board presumes this limited number of treatment records in the file does not accurately reflect the extent of treatment for such an injury. Moreover, the RO themselves acknowledges in the February 1992 rating decision that the STRs appeared to be incomplete. Accordingly, the Board will attempt to obtain the missing records. Second, the Board finds that the Veteran should be afforded a VA examination in order to address the etiology of his claimed disability, particularly given his contentions of an injury while in service. Finally, the Board notes that the Veteran has been in receipt of disability benefits from the Social Security Administration (SSA). Normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 38 C.F.R. § 3.159 (c). Accordingly, upon remand, the Board will attempt to obtain these records. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any service treatment records, VA and/or private treatment records, pertaining to the issue on appeal. In addition, obtain records from the SSA pertaining to any application or award of disability benefits to the Veteran. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to address the etiology of his claimed disability. The VA examiner should clarify the Veteran’s diagnosis and for each disability diagnosed, address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service or, if preexisting service, was aggravated therein. The examiner is asked to specifically address the Veteran’s malaria in service and his claims of injury. For all examinations, all necessary development should be taken. The VA examiner should be given access to the claim file, including this remand. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel