Citation Nr: 18153138 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-46 064 DATE: November 27, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for lumbar spine disability is reopened. REMANDED Entitlement to service connection for lumbar spine disability is remanded. FINDINGS OF FACT 1. The claim for service connection for lumbar spine disability was denied in an unappealed March 2008 rating decision. 2. Evidence submitted since the March 2008 rating decision includes information that was not previously considered by VA and that relates to a fact necessary to substantiate the claim for service connection for lumbar spine disability, and therefore creates a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2008 rating decision that denied entitlement to service connection for lumbar spine disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302(a), 20.1103 (2018). 2. New and material evidence has been received since the March 2008 rating decision and the requirements to reopen the claim of entitlement to service connection for lumbar spine disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from February 1993 to August 1993and on active duty from December 2003 to March 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). New and Material The Veteran’s claim for service connection for lumbar spine disability was originally denied in a March 2008 rating decision. The Agency of Original Jurisdiction (AOJ) denied the claim, in part, on the basis that the record did not document a chronic lumbar spine disability. The AOJ also noted no service treatment records (STRs) showing complaints or treatment for a back condition. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Evidence considered at the time of the March 2008 rating decision included the Veteran’s STRs and VA treatment records dating through February 2008. The Veteran was notified of that decision but did not initiate an appeal. Moreover, no new and material evidence was received within one year of notice of that decision. Accordingly, the March 2008 rating decision is final. Since the March 2008 rating decision, evidence added to the claims file includes updated VA treatment records. In this regard, a December 2013 VA MRI study revealed multilevel lumbar spondylotic changes most significant at the L5-S1 level, disc degeneration at L5-S1, and loss of disc height with diffuse bulge with bilateral facet joint degenerative changes causing moderate bilateral neural foraminal narrowing. A May 2014 lumbar spine CT scan revealed degenerative changes at L4-L5 and L5-S1. As noted above, the Veteran’s service connection claim had been denied based upon a finding that the record did not document a chronic lumbar spine disability. Here, the Board finds that the evidence of record added to the claims file shows the Veteran has a diagnosed degenerative lumbar spine condition. The Board finds that such evidence constitutes new and material evidence under the definition set forth in 38 C.F.R. § 3.156(a). Given that the above evidence addresses facts necessary to substantiate the Veteran’s claim of entitlement to service connection for lumbar spine disability, the Board finds that the low threshold for reopening the claim has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the claim of entitlement to service connection for lumbar spine disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for lumbar spine disability is remanded. The Veteran asserts that his diagnosed lumbar spine disability was incurred after being thrown from a vehicle as a result of an IED blast. In this regard, the Board notes that the Veteran was granted service connection for PTSD in a March 2008 rating decision. In pertinent part, the AOJ conceded the Veteran’s in-service stressors including his reported exposure to an IED blast. Moreover, the Board observes that the Veteran served in Southwest Asia from March 2004 to February 2005 and received imminent danger pay while serving in Iraq. Accordingly, the Veteran’s reported in-service incident has been conceded. The record further contains an August 2014 VA medical record in which the Veteran’s VA physician, Dr. AG, noted a reported medical history in which the Veteran stated he had acute onset of severe pain due to an in-service injury with pain that had persisted since that time. In addition, Dr. AG noted that a CT scan showed spondylosis with no spondylolisthesis and some calcifications in the facet joint area and anulus suggestive of a traumatic injury. Dr. AG further noted that the diagnosed traumatic spondylosis of L5 would be consistent with the Veteran’s reported in-service injury. In his September 2016 VA Form 9, the Veteran asserted that Dr. AG had opined that his lumbar spine disability was “most likely” due to the injury he sustained as a result of his in-service IED blast. A review of the record shows no such opinion. Instead, Dr. AG noted a medical history as reported by the Veteran and concluded that the current lumbar spine disability “would be consistent” with that history. There is no indication that Dr. AG reviewed the Veteran’s claims file. As noted above, the Veteran’s STRs are silent as to any complaints or treatment for a lumbar spine disability. Additionally, a February 2005 post-deployment health assessment shows the Veteran reported that his health had worsened, that he had been seen in sick call eight times, but denied any symptoms related to back pain. The Veteran was referred for reported pain and swelling which only involved his lower joints including feet, ankles and knees. Accordingly, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran’s lumbar spine disability. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed lumbar spine disability. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed lumbar spine disability is etiologically related to his period of service, to include the IED blast? The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. The examiner should address the August 2014 VA record wherein Dr. AG further noted that the diagnosed traumatic spondylosis of L5 would be consistent with the Veteran’s reported in-service injury. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel