Citation Nr: 18147209 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-42 937 DATE: November 2, 2018 ORDER New and material evidence having been received, the claims of entitlement to service connection for neck and back disorders are reopened. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. The Veteran did not seek an appeal of a January 2010 decision that denied service connection for a neck disorder. 2. The Veteran failed to submit a timely substantive appeal with respect to a January 2010 decision that denied claim of service connection for a low back disorder. 3. Evidence received since the January 2010 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claims of service connection for neck and back disorders. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for neck and back disorders is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2018). 2. New and material evidence sufficient to reopen the Veteran’s claims of service connection for neck and back disorders has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). A January 2010 rating decision denied service connection for neck and back disorders on the basis that the Veteran had failed to provide evidence of a nexus between his disabilities and service. The Veteran filed a notice of disagreement with respect to the denial of his claim for a low back disorder. No reference was made to the neck claim. Following receipt of a notice of disagreement, the Veteran was provided a statement of the case with regard to the low back claim on February 6, 2012. A statement pertaining to the low back claim was received on April 18, 2012. The receipt of the statement/appeal was not timely as it was not received within 60-days of the statement of the case. Accordingly, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In May 2012, the Veteran filed a petition to reopen his claims. The evidence added to the record since the January 2010 rating decision includes a September 2014 buddy statement from a medic indicating that the Veteran was treated for neck and back injuries in service. The statement also indicates that the Veteran continued to experience neck and back pain during service in the Army Reserve following separation from active service. The evidence is new, because it was not of record at the time of the January 2010 rating decision. The evidence is also material because it shows in-service injuries and post-service symptomology that tend to support the existence of a nexus between the Veteran’s service and his currently diagnosed cervical and lumbar spine osteoarthritis and degenerative diseases. The evidence received is presumed credible (only for the purpose of reopening the claims), is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the Veteran’s claims. As such, the Veteran’s neck and back claims must be reopened. REASONS FOR REMAND Entitlement to service connection for neck and back disorders is remanded. The Veteran has current diagnoses of osteoarthritis and degenerative diseases of the cervical and lumbar spines. See May 2011 VA Examination. He asserts that his conditions are related to in-service neck and back injuries. The September 2014 buddy statement describes continuing neck and back pain shortly after separation. As there is evidence of current disabilities, in-service injuries, and an indication that they may be linked, the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to evaluate the nature and etiology of his neck and back disorders. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: a. Identify/diagnose any disability of the neck and/or low back that presently exists or that has existed during the appeal period. b. Is it at least as likely as not (50 percent probability or greater) that any neck disorder had its onset in service or within a year of service discharge or is otherwise etiologically related to active service, including an in-service neck injury in March 1991? c. Is it at least as likely as not (50 percent probability or greater) that any back disorder had its onset in service or within a year of service discharge or is otherwise etiologically related to active service, including an in-service low back injury in March 1991? Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an 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 the limits of current medical knowledge with respect to the question. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel