Citation Nr: 18900016 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 180605-32 DATE: October 17, 2018 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to March 1994. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with decision by the Department of Veterans Affairs (VA) on their claims to seek review. The Veteran chose to participate in BEAAM, the Board of Veterans’ Appeals (Board) Early Applicability of Appeals Modernization research program. This decision has been written consistent with the new AMA framework. The issue was presented to the Board as whether new and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for a back disability. However, the Board finds that the original claim for service connection is still pending and therefore new and relevant evidence is not required to adjudicate the issue on the merits. The Veteran filed his claim for service connection in October 2009. A July 2010 rating decision denied the claim, and notice was sent to the Veteran in August 2010. The Veteran submitted a Statement in Support of Claim in September 2010 that constitutes new and material evidence submitted within one year of the notification of the denial. Thus, under 38 C.F.R. § 3.156(b) (2009), the July 2010 decision did not become final. A May 2012 rating decision adjudicated this issue as an original service connection claim, denying entitlement to service connection for a back disability. However, the notification letter of the May 2012 denial was “Returned to Sender” and there is no evidence that it was ever successfully sent to the Veteran. As there is no evidence that he was notified of the denial and his appellate rights, the May 2012 denial did not become final. In a December 2016 rating decision, the claim of entitlement to service connection for a back disability was denied again. The record contains no notification letter to the Veteran of this denial. There is no evidence that he was notified of the denial and his appellate rights. Thus, this denial did not become final. As a result, the Board finds that the original October 2009 claim of entitlement to service connection for back disability is still pending. Entitlement to service connection for a back disability is remanded. The AOJ did not obtain a VA examination for a back disability prior to the March 2018 rating decision on appeal. However, based on the evidence associated with the claims file prior to the March 2018 rating decision, the Board finds that a VA examination and opinion are required to determine whether a back disability is related to service. Accordingly, the issue of service connection for a back disability is remanded. The matter is REMANDED for the following action: Schedule the Veteran for a VA back examination to determine the nature of any back disability and to obtain an opinion as to whether such is related to service. The claims file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any disability of the back present at any time since October 2009 is related to an in-service injury, event, or disease. The examiner should provide a complete rationale for any opinion given, with citation to medical and competent lay evidence of record as necessary. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals