Citation Nr: 18145841 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-31 649 DATE: October 30, 2018 ORDER New and material evidence has been submitted sufficient to reopen a previously denied and final claim of entitlement to service connection for back disorder and the appeal is granted to this extent only. REMANDED Entitlement to service connection for back disorder (previously claimed as spondylolysis) is remanded. FINDINGS OF FACT 1. A December 1989 rating decision denied service connection for back disorder, the Veteran received notice of the decision and he did not file a timely appeal. The decision was confirmed by an unappealed August 2000 notification letter, being the last final denial on any basis. 2. Evidence received since the August 2000 notification letter is not cumulative, it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2000 denial of the reopening of the claim of service connection for back disorder is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156, 20.1100. 2. New and material evidence has been received to reopen the previously denied and final claim of service connection for back disorder. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from August 1973 to October 1973 and in the United States Air Force from October 1980 to February 1985. 1. Whether new and material evidence was received sufficient to reopen and previously denied and final claim for service connection for back disorder. In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). However, regardless of what the Agency of Original Jurisdiction (AOJ) has determined with respect to new and material evidence, the Board must make its own determination, as this in turn establishes the Board’s jurisdiction to reach the underlying claim and to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). A December 1989 rating decision denied service connection for back, finding the Veteran’s spondylolysis had existed before service and there is no evidence of aggravation beyond the natural progression of that disorder. Later in December 1989, the Veteran received notification of the decision, he did not appeal within one year following notification and the decision became final. An August 2000 notification letter confirmed the denial of the prior decision, as no new and material evidence adequate to reopen the claim had been submitted. A November 2015 rating decision reopened the final December 1989 decision, but confirmed and continued the initial denial, as there was no evidence that the Veteran’s disorder was incurred in or aggravated by military service. The Veteran filed a Notice of Disagreement in January 2016. A May 2016 Statement of the Case (SOC) also confirmed and continued the denial, as there was no objective medical evidence which established a link between current mild degenerative disc disease and degenerative joint disease lumbar spine and the in-service back complaints. Based on the grounds stated for the December 1989 denial of the claim, new and material evidence for both claims would consist of evidence showing in-service aggravation of spondylolysis or a disorder caused by some event or experience in service. As stated above, the August 2000 notification letter stated such evidence had not been submitted at that point. The October 2015 VA examination for thoracolumbar spine has since been added to the claims file, offering a diagnosis and an opinion as to service connection. The Board finds this evidence was not of record at the time of the December 1989 rating decision or the August 2000 notification letter and is therefore new. Moreover, it is material, as it provides findings and an opinion possibly supporting the Veteran’s assertions and thereby presents a reasonable possibility of substantiating the claim. The evidence is not cumulative or redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran’s claim will turn. For these reasons, the claim is reopened. REASONS FOR REMAND Entitlement to service connection for back disorder (previously claimed as spondylolysis). The in-service Medical Evaluation Board, convened in November 1984, conducting its review in December 1984 and with its diagnoses stamped “March 1985,” stated in its report the approximate date of origin for the Veteran’s spondylolysis as “congenital” and for low-back pain, September 1982. The report further stated spondylolysis existed prior to service, but low-back pain did not and concluded that both spondylolysis and low-back pain were “permanently aggravated by service.” The record further indicates that the Veteran underwent a VA examination for low-back pain in November 1989, in which physical examination and x-rays showed essentially normal results. The Veteran was diagnosed with back pain in April 2000, private treatment notes between August 2013 and August 2014 note that the Veteran had lower back surgery sometime in 2000 and June and December 2009 VA primary care notes, as well as the October 2015 VA examination, state the Veteran underwent lumbar spine herniated disc surgery at L4-5 at the University of Kentucky in 2000 (the surgeon, Dr. B., is mentioned by name). Congenital or developmental defects are not “diseases or injuries within the meaning of applicable legislation” and, therefore, do not constitute a disability for VA compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted, in limited circumstances, for an injury or disease superimposed on a congenital or developmental defect and resulting in a disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995) and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). As the record reflects a possible ongoing back disorder after active service, a new VA examination and opinion is necessary to determine if the Veteran sustained during active service a disorder permanently acquired or superimposed over his spondylolysis, which the Medical Evaluation Board Report had found to be congenital and, therefore, existing before active service. The matter is REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for a back disorder at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for an examination conducted by a VA examiner with an appropriate specialty for producing findings for back disorders. The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all findings. The examination should provide findings and diagnoses as to the nature, extent and current severity of the back disorder. The examiner is requested to render an opinion, addressing the following: Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that an injury or disease occurring during active service was superimposed on the Veteran’s spondylolysis, found by the November 1984 – March 1985 Medical Evaluation Board Report to be congenital, with that injury or disease resulting in additional disability. The opinions must be explained by an adequate rationale, by which the examiner’s conclusions are supported by direct references to clinical findings made on examination, to the Veteran’s treatment records and/or to medical literature. The examiner is specifically requested to comment on the Veteran’s treatment for low-back pain, as well as his reports of low-back pain, as they appear throughout the record. The examiner is further requested to comment on the Veteran’s post-service employment history, to include as indicated in the November 1989 VA examination, in the lay statement accompanying the Veteran’s July 2016 VA Appeals Form 9 and as reported by the Veteran to VA examiners and treatment providers throughout the record. The examiner should address the effects of that employment on the Veteran’s spondylolysis and any acquired or superimposed back disorder. The examiner should comment on the findings and opinions of other examiners, which appear in the record. In addition, the examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran’s back disorder, including the Veteran’s lay statements, any lay statements of his wife, other family members, friends, co-workers, or others, as well as the Veteran’s reports to treatment providers, as they appear throughout the record. Findings should be reconciled with other records on file to the extent possible. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel