Citation Nr: 18150151 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-38 760 DATE: November 14, 2018 ORDER The previously denied claim of entitlement to service connection for back disability is reopened. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a memory issue is remanded. FINDINGS OF FACT 1. By a final March 2007 rating decision, the Regional Office (RO) found new and material evidence had not been received to reopen the previously denied claim of entitlement to service connection for back disability. 2. Additional evidence received since the RO’s March 2007 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s March 2007 rating decision finding new and material evidence had not been received to reopen the previously denied claim of entitlement to service connection for back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for back disability. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to September 1974 and from September 1974 to September 1980. 1. New and material evidence has been received to reopen a claim of entitlement to service connection for back disability. In the present case, the RO, by a March 2007 rating decision, found new and material evidence had not been received to reopen the previously denied claim of entitlement to service connection for back disability. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In October 1981, the Veteran’s claim for service connection for back disability was denied on the grounds that the Veteran’s in-service injury resolved without residuals at separation. The RO then found, in March 2007, that new and material evidence had not been received to reopen the previously denied claim. The evidence received since the time of the RO’s March 2007 rating decision includes the Veteran’s February 2018 Board hearing testimony that he self-treated his continued back pain in service but did not seek additional treatment in service because he did not want to go on sick call, that he delayed seeking official treatment after service due to bad experiences with doctors and a lack of trust, and that he believes his back was weakened from his in-service injury. See Hearing Tr., pp. 14-15, 22. This evidence was not before adjudicators when the Veteran’s claim was last denied, and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for back disability, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a memory issue is remanded. Remand is warranted to obtain outstanding Social Security Administration (SSA) records. In the June 2014 VA contract mental disorders examination and a May 2011 VA treatment record, the Veteran reported that he was in receipt of SSA disability for memory loss and back problems. However, it does not appear that the Regional Office has attempted to obtain the Veteran’s SSA records. As such, a remand is necessary to obtain such records. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). In addition, during the February 2018 Board hearing, and in a February 2018 authorization form, the Veteran indicated that there may be relevant treatment records relating to a workers’ compensation claim at the Corporacion del Fondo del Seguro del Estado. See Hearing Tr., p. 19. The Veteran also identified additional sources of potentially relevant treatment records. See February 2018 Release. Remand is therefore appropriate for the Regional Office to work with the Veteran to obtain these records. The Veteran underwent VA contract examination in relation to his back in June 2014. The VA contract examiner diagnosed the Veteran with lumbar degenerative disc disease, lumbar degenerative joint disease, and mild lumbar scoliosis. The VA contract examiner opined that the Veteran’s back disorders were less likely than not incurred in or caused by service. The VA contract examiner explained that the Veteran was treated in service but that there was no mention of back issues on separation examination and a lack of documentation showing ongoing spine issues in the medical records. However, in his August 1980 report of medical history at the time of separation, the Veteran reported recurrent back pain and painful joints. Accordingly, it appears that the June 2014 opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In addition, the Veteran has asserted that his back is secondary to his service-connected left foot disability. See October 2014 Substantive Appeal. Accordingly, remand is appropriate for additional VA medical opinion. While this matter is on remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. With any assistance necessary from the Veteran, obtain the Veteran’s complete SSA records, including any administrative decisions on his application for disability benefits and all underlying medical records which are in SSA’s possession. 2. With any assistance necessary from the Veteran, obtain the Veteran’s records from the Corporacion del Fondo del Seguro del Estado. 3. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, to include records from Dr. Carlos Placer Roman, Dr. Luis P. Sanchez-Longo, and Hato Rey X-Ray and Imaging Center. 4. Obtain any additional VA treatment records, including those dated from August 2014 to the present. 5. After obtaining any outstanding records, ask the appropriate orthopedic examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any current low back disability the Veteran has presented during the claim period (from June 2011 to the present), to include lumbar degenerative disc disease, lumbar degenerative joint disease, and mild lumbar scoliosis. For each diagnosis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease, to include injury from physical training during service; or (c) is related to or aggravated by the Veteran’s service-connected left foot disability. For any arthritis diagnosis, the examiner should also opine whether it is at least as likely as not (a 50 percent or greater probability) that the arthritis manifested to a compensable degree within one year of separation from service (by September 1981). The examiner should consider all medical and lay evidence of record, to include the Veteran’s October 1978 and November 1978 STRs, the Veteran’s August 1980 report at the time of separation of recurrent back pain and painful joints, the September 2011 Veteran’s statement indicating that he self-treated his back after service, the May 2012 Veteran’s statement that he did not seek additional treatment for his back in service because he could alleviate his symptoms with over the counter pain medications and did not want to go on sick call, and the February 2015 VA contract foot examination noting difficulty with walking and standing. During the February 2018 Board hearing, the Veteran testified that he hurt his back in physical training in service and then it continued to hurt on and off and he would self-treat with aspirin. Hearing Tr., pp. 14-15. He testified that he did not want to seek treatment too often in service and that he delayed seeking official treatment after service due to a lack of trust in doctors and prior bad experiences with doctors. Id., p. 15. He reported that he believes his work accident aggravated his already existing back injuries from service. Id., p. 22. A complete rationale should be given for all opinions and conclusions expressed. 6. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel