Citation Nr: 18145279 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-23 372 DATE: October 26, 2018 ORDER Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lumbar spine disorder, claimed as bilateral foraminal stenosis of the lumbar/sacroiliac junction, is granted. REMANDED Entitlement to service connection for a lumbar spine disorder, claimed as bilateral foraminal stenosis of the lumbar/sacroiliac junction, to include as secondary to service-connected bilateral leg disabilities, is remanded. FINDINGS OF FACT 1. In a January 2010 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for bilateral foraminal stenosis at the lumbar/sacroiliac junction. 2. Evidence associated with the electronic claims file since the January 2010 rating decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim of service connection for a lumbar spine disorder and raises a reasonable possibility of substantiating the claim of service connection for a lumbar spine disorder. CONCLUSIONS OF LAW 1. The January 2010 RO rating decision that denied the Veteran’s claim of service connection for a lumbar spine disorder is final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the RO’s January 2010 denial is new and material, the criteria for reopening of the Veteran’s claim of service connection for lumbar spine disorder, claimed as bilateral foraminal stenosis of the lumbar/sacroiliac junction, have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1985 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision rendered in March 2015. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lumbar spine disorder, claimed as bilateral foraminal stenosis of the lumbar/sacroiliac junction Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2012). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this regard, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Entitlement to service connection for back tightening up was originally denied in an October 1999 rating decision. The RO highlighted that evidence of record did not show an actual disabling back condition in service and at present. Shortly thereafter, in February 2000, the Veteran sought to reopen his claim and the RO denied reopening the claim in an April 2001 rating decision, indicating that new and material evidence had not been received. He did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between May 2001 and May 2002, which would have necessitated a reconsideration of the issue on appeal. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the April 2001 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In a January 2010 rating decision, the RO denied service connection for bilateral foraminal stenosis at the lumbar/sacroiliac junction (previously claimed and denied as back tightening up), determining that the claimed disorder was not related to his service-connected bilateral leg disabilities. The Veteran did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between January 2010 and January 2011, which would have necessitated a reconsideration of the issue on appeal. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the January 2010 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In January 2015, the Veteran sought to reopen the claim of entitlement to service connection for a lumbar spine disorder. This appeal arises from the RO’s March 2015 rating decision that denied reopening the Veteran’s claim of entitlement to service connection for bilateral foraminal stenosis at the lumbar/sacroiliac junction as secondary to the service-connected bilateral leg disabilities. Regardless of the RO’s actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran’s previously and finally denied claims). Evidence of record received since the last prior final January 2010 rating decision includes multiple written statements from the Veteran; VA treatment records dated from 2012 to 2016; private treatment records; a November 2012 DRO hearing transcript; and private medical opinions dated in August 2010, March 2013, and September 2013. Evidence received since the January 2010 rating decision is “new” in that it was not of record at the time of the January 2010 rating decision. This evidence is “material”, as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim, i.e., the existence of a causal relationship between the currently claimed disorder and events during active service or his service-connected bilateral leg disabilities. Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510 (1992). Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to service connection for a lumbar spine disorder are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS FOR REMAND Due to the inadequacies contained in the December 2009 VA medical opinion as well as the divergent conclusions reached in August 2010, March 2013, and September 2013 private medical opinions submitted by the Veteran as to the etiology of his claimed lumbar spine disorder, the Board will not proceed with final adjudication of the claim until a competent VA examination and medical opinion is obtained to clarify the nature and etiology of the Veteran’s claimed lumbar spine disorder on appeal. Evidence of record further reflects that the Veteran received VA medical treatment for his claimed lumbar spine disorder from South Texas VAHCS as well as Corpus Christi and Harlingen VAOPCs. As evidence of record only includes treatment records dated up to May 2009 from South Texas VAHCS as well as a sampling treatment records from Corpus Christi and Harlingen VAOPCs dated from 2012 to 2016, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (finding that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matter is REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran’s claimed lumbar spine disorder from South Texas VAHCS from May 2009 to the present and from Corpus Christi and Harlingen VAOPCs dated from September 2012 to the present. 2. Thereafter, obtain an additional VA medical examination to clarify the nature and etiology of the Veteran’s claimed lumbar spine disorder. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. After a review of the entire evidence of record and with consideration of the Veteran’s lay assertions and his asserted in-service low back pain, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current or previously diagnosed lumbar spine disorder was incurred in or was otherwise causally related to his military service, including documented in-service low back pain complaints in 1991. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current or previously diagnosed lumbar spine disorder was caused or aggravated (permanently worsened) by the Veteran’s service-connected bilateral leg disabilities. It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology, such as low back pain. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should discuss medically known or theoretical causes of any current lumbar spine disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events and/or the Veteran’s service-connected bilateral leg disabilities as opposed to some other cause. In providing the requested opinions, the examiner should discuss and reconcile the proffered medical opinions with the documented complaints of in-service low back pain; the February 2009 VA treatment provider statement; the August 2010, March 2013, and September 2013 private medical opinions; additional private treatment provider statements dated from 2005 to 2013; and the December 2009 VA examination report of record. Rationale for all requested opinions shall be provided. 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(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2017). 3. After completing the above actions, and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the April 2016 statement of the case. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.   MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. D. Deane, Counsel