Citation Nr: 18150639 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-15 772 DATE: November 15, 2018 ORDER New and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for a back condition; to this extent, the claim is granted. REMANDED Entitlement to service connection for a back condition is remanded. FINDINGS OF FACT 1. The claim for service connection for a back condition was initially denied in an October 1973 rating decision, a request to reopen this claim was subsequently denied in a September 2009 rating decision. 2. Evidence added to the record since September 2009 is not cumulative or redundant of the evidence of record at the time of such decision and it raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a back condition. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a back condition. 38 U.S.C. 5108 (West 2015); 38 C.F.R. 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1972 to July 1973 in the United States Marine Corps. The claim to reopen the Veteran’s claim for service connection for a back condition is granted. In an October 1973 rating decision, the RO denied the Veteran’s claim for entitlement to a back condition. A September 2009 rating decision declined to reopen the claim because there was no new and/or material evidence submitted. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The claim was initially denied because the Veteran’s back condition was found to have preexisted service and was not aggravated. The evidence before the VA at the time of the prior final decision consisted of the Veteran’s service treatment records (STRs) and Medical Board determination. The evidence before the Board at the time of the September 2009 decision included STRs, a statement by the Veteran, and post-service treatment records. Evidence added to the record since September 2009 includes additional statements made by the Veteran and his representative reasserting that the Veteran did not have any back problems prior to service and pointing out that no defects were noted at enlistment. The Board finds that the recently submitted evidence of record is new, in that it was not previously considered. The Board finds that the same evidence is material to the Veteran’s claim because it relates to an unestablished fact necessary to substantiate the claim; that is whether the Veteran suffered an injury during service. Thus, for these reasons, the claim for service connection for a pancreatitis is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. The Board also notes that the Veteran’s VA Form 9 references a statement of the case that was issued April 8, 2015. However, review of the claims file indicates that the SOC has not been associated with the file. On remand associate the April 2015 SOC with the Veteran’s claims file. REASONS FOR REMAND Entitlement to service connection for a back condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a back condition because no VA examiner has opined whether the Veteran had a preexisting back condition that was aggravated by service or whether the Veteran’s current back condition is etiologically related to his documented in-service back injury. The Veteran has stated that he did not have any back condition that preexisted his active duty service and that the onset of his back symptoms began after an injury during an active duty football game. Review of his STRs indicate that no back condition was noted on his enlistment examination and confirm the back injury the Veteran reported. The Medical Board diagnosed the Veteran with lumbar spondylosis and recommended his discharge. The original rating decision cited the Medical Board decision and stated that the Veteran’s diagnosed back condition was found to have preexisted service. Review of the records does not reveal such a determination as made by the Medical Board, therefore it is unclear how this determination was made. On remand a VA medical examination must be conducted to determine whether any back condition preexisted service and alternatively if the Veteran’s current back condition is etilogically related to the noted in-service back injury. The matter is REMANDED for the following action: 1. Update the Veteran’s claims file to include the April 2015 SOC addressing the request to reopen the claim for entitlement to service connection for a back condition. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back condition. Based on the examination and review of the record, the opinion provider should address the following: (a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran had a back disability that existed prior to his entry onto active duty? The examiner should consider and discuss as necessary the Veteran’s July 1972 enlistment examination and Report of Medical History. (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting back disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. The examiner is informed that aggravation here is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that any diagnosed back disability is etiologically related to the Veteran’s active service? The opinion provider should consider and discuss as necessary the Veteran’s credible lay statements detailing an in-service injury. A complete rationale must be provided for any opinion offered. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod