Citation Nr: 18148657 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-43 776 DATE: November 8, 2018 ORDER New and material evidence having been submitted, the claim for service connection for a low back disorder, to include as due to service-connected residuals of a right fibula fracture, is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a low back disorder, to include as due to service-connected residuals of a right fibula fracture, is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a low back disorder was previously considered and denied by the Regional Office (RO) in a February 2014 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year. 2. The evidence received since the February 2014 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disorder. CONCLUSIONS OF LAW 1. The February 2014 rating decision that denied service connection for a low back disorder is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2018). 2. The evidence received subsequent to the February 2014 rating decision is new and material, and the claim for service connection for a low back disorder is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 2011 to June 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal, the Veteran requested a hearing before the Board. However, in September 2016, he cancelled the hearing request in writing. Accordingly, the Board will proceed to a decision on this appeal without such a hearing. See 38 C.F.R. § 20.704(e). Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The RO previously considered and denied the Veteran’s claim for service connection for a low back disorder in a February 2014 rating decision. In that decision, the RO noted that the service treatment records did not document any complaints, treatment, or diagnosis of a low back disorder. The RO also found that the evidence did not show a current disability. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within year of the issuance of the decision. Therefore, the February 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The Veteran later submitted a new claim for service connection for a low back disorder in April 2015. The evidence associated with the claims file since the February 2014 rating decision includes May 2015 and August 2015 medical opinions indicating that the Veteran’s low back disorder is related to his military service. Such evidence was not considered at the time of the February 2014 rating decision and relates to a previously unestablished fact. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran’s claim for service connection for a low back disorder. 38 C.F.R. § 3.156(a). However, as will be explained below, the Board finds that further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND The Board finds that additional development is needed in this case. Specifically, medical records from the Veteran’s private doctor, Dr. N.D. (initials used to protect privacy), should be obtained and associated with the claims file. The Board also notes that the Veteran was afforded a VA examination in June 2015 in connection with his claim. The examiner opined that the Veteran’s low back disorder was not related to his active duty service, as the diagnosis was made two years thereafter. The examiner observed that the Veteran continued to serve in the reserves until October 2015 and found no line of duty statement regarding a back condition. The same VA examiner then provided another examination and opinion in October 2015. At that time, the examiner opined that the Veteran’s low back disorder was not related to his right fibula fracture because he had a normal gait. The examiner again noted that the Veteran had continued in the reserves until October 2015 and that no line of duty statement had been associated with the file. Nevertheless, the Board finds that an additional VA medical opinion should be obtained. Although the VA examiner found that the Veteran had a normal gait and the VA medical records primarily noted the presence of a steady gait, the Veteran’s private chiropractor, Dr. N.D., has opined that the low back disorder is the result of an altered gait due to his right leg fracture. Thus, an opinion should be requested following the receipt of any additional treatment records. In addition, the Board notes that it is unclear from the Veteran’s April 2015 and August 2016 statements whether he is claiming that his low back condition was injured or aggravated during Reserve or National Guard duty. Upon remand, the AOJ should contact the Veteran for clarification as to whether he is claiming that his condition is related to his active duty service, his service-connected right leg fracture, and/or Reserve or National Guard service. Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his low back disorder, to include from Dr. N.D. See March 2015 opinion. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the appellant’s units, and any other appropriate location, to request the complete service personnel and treatment records, to include any records from National Guard and/or Reserve service. 3. The AOJ should request that the Veteran clarify whether he is claiming that his low back disorder was injured or aggravated during any Reserve or National Guard service. He should also be asked to provide the dates of any such service. If the Veteran is making such a claim, the AOJ should request verification of the dates the Veteran served in National Guard and/or Reserve. 4. After the above development has been completed and all records have been associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current low back disorder that is causally or etiologically related to his active service, to include any injury or symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that the Veteran has a low back disorder that is caused by or aggravated by his service-connected residuals of a right leg fracture and/or an altered gait as a result of his right leg disorder. The examiner should consider the May 2015 and August 2015 medical opinions submitted by Dr. N.D., as well as the VA medical records noting that the Veteran’s back pain is mechanical. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel