Citation Nr: 18151593 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-61 907 DATE: November 20, 2018 ORDER The application to reopen the previously denied claim for entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability, to include lumbar DDD, is remanded. FINDING OF FACT 1. In a July 2002 rating decision, the RO denied service connection for low back pain. The appellant was notified of this decision and her appellate rights in an August 2002 letter; however, she did not submit a notice of disagreement nor was new and material evidence received within one year of notification of that decision. 2. In a February 2008 rating decision, the RO determined that new and material evidence had not been received to warrant reopening of the appellant’s claim of service connection for low back pain. The appellant was notified of this decision and her appellate rights in a February 2008 letter; however, she did not submit a notice of disagreement nor was new and material evidence received within one year of notification of that decision. 3. Evidence received since the last final rating decision in February 2008 denying entitlement to service connection for low back pain is related to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the service connection claim. CONCLUSIONS OF LAW 1. The July 2002 rating decision denying the claim for entitlement to service connection for low back pain is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The February 2008 rating decision determining that new and material evidence had not been received to reopen the claim of entitlement to service connection for low back pain is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to warrant the reopening of the previously denied claim of entitlement to service connection for low back pain. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from June 1980 to June 2002. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for low back pain. New and Material Evidence The application to reopen the previously denied claim for entitlement to service connection for low back pain is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. 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, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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. In a July 2002 rating decision, the RO denied the appellant entitlement to service connection for low back pain because there was no evidence of a current disability on a March 2002 VA pre-discharge physical. The appellant was notified of the RO’s decision and her appellate rights in an August 2002 letter, but she did not appeal within the applicable period, nor was new and material evidence received within one year following notification of the decision. As such, the Board finds that this decision by the RO is final. In a February 2008 rating decision, the RO denied the appellant’s request to reopen the previously denied claim for entitlement to service connection for low back pain because no new and material evidence had been received. The appellant was notified of the RO’s decision and her appellate rights in a February 2008 letter, but she did not appeal within the applicable period, nor was new and material evidence received within one year following notification of that decision. As such, the Board finds that this decision by the RO is final. In November 2016, the RO received new evidence, the results of an October 2016 x-ray of the appellant’s thoracolumbar spine. This report revealed the appellant had DDD at the L5-S1 vertebrae with “vacuum disc phenomenon.” As the appellant’s claim was previously denied because there was no evidence of a current disability, the Board finds that this evidence diagnosing the appellant with DDD of the thoracolumbar spine is both new, in that it was not previously of record, and material, as it relates to an unestablished element in the claim, that the appellant has a current disability. Given the evidence of record, the Board further finds that VA’s duty to assist has been triggered and that an examination is necessary. Shade, 24 Vet. App. at 117; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As discussed below, the Board finds that remand is necessary prior to adjudicating this claim, because the most recent VA examination of record is currently inadequate, as it does not discuss all the appellant’s theories of entitlement. As such, the Board concludes that the criteria for reopening the claim have been met, and the claim is reopened and remanded. REASONS FOR REMAND The appellant contends that her current low back disability, to include DDD, had its inception during active service, as evidenced by her multiple reports of lower back pain in the three-year period prior to her separation from service. She asserts that she began experiencing low back pain during active service and that her back pain has persisted since. After a review of the evidence of record, the Board finds that remand is necessary to obtain a new medical opinion prior to adjudicating this claim. The post-service record on appeal includes notations of arthritis in the lumbar spine. See e.g. Womack Army Medical Center record dated June 16, 2016. The appellant underwent a VA examination in October 2016. The examiner indicated that the appellant did not have arthritis of the lumbar spine. Rather, he diagnosed her as having DDD which was less likely than not related to service. The examiner’s rationale was that lumbar spine x-rays taken “shortly after separation” (which the Board assumes is the x-ray taken at the appellant’s pre-discharge physical as there are no x-ray results in the record from “shortly after separation”) were normal. The examiner also concluded that a review of the appellant’s treatment records indicated that the appellant’s in-service low back symptoms were consistent with muscular back pain only. However, the examiner did not address whether the appellant’s current DDD and/or arthritis were caused by her in-service low back muscular injury. In addition, the Board observes that arthritis is a presumptive disease. Thus, service connection may be established by showing that arthritis manifested to a compensable degree within one year after separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). As such, the Board finds that an addendum opinion is necessary to determine the etiology of the appellant’s thoracolumbar disability. The matter is REMANDED for the following action: 1. Schedule the appellant for a VA medical examination to determine the nature and etiology of her current low back disability. Access to the appellant’s claims file must be provided to the examiner for review. After examining the appellant and reviewing the record, the examiner should identify the appellant’s current back disability or disabilities. He or she should then provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not that the appellant’s current low back disability had its inception during her period of active duty or within one year following service separation? If not, is it at least as likely as not that the current back disability is otherwise causally related to active service or any incident therein? If not, is it as least as likely as not that he current back disability is causally related to or aggravated by her current service-connected right and/or left knee disabilities? In providing the requested opinion, the examiner must consider the relevant evidence of record, to include the appellant’s complaints of low back pain from 1999 through her separation in June 2002, as well as her reports of continuing back pain since her separation from service. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel