Citation Nr: 18154405 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-50 522 DATE: November 29, 2018 ORDER New and material evidence having been introduced, the claim for entitlement to service connection for a low back disorder is reopened. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a low back disorder was denied in a September 2009 rating decision. The Veteran was informed of that decision and his appellate rights, but did not appeal or submit new and material evidence within one year. 2. Evidence received into the record since the September 2009 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a low back disorder. CONCLUSIONS OF LAW 1. The September 2009 rating decision denying entitlement to service connection for a low back disorder is final. 38 U.S.C. § 1705(c); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the September 2009 rating decision is new and material, and the claim of entitlement to service connection for a low back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to January 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Neither the Veteran nor his representative has 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). 1. Whether new and material evidence has been introduced to reopen a claim for service connection for a low back disorder Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran’s claim for service connection for a low back disorder was denied in September 2009. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the September 2009 decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records and lay statements in support of his claim that shed additional light on his service and the nature of his disability. The Board finds this evidence “new,” because it postdates the aforementioned rating decision. The Board also finds the new evidence “material,” because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claim of service connection for a low back disorder is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a low back disorder is remanded. Having reopened the claim for service connection for a low back disorder, the Board finds that additional development is required. The Veteran has consistently averred that he injured his low back during basic training, and that he has experienced back pain since that time. He has also stated that he sought treatment for low back pain shortly after separation from service, although these records are not part of the medical file. The Veteran’s service treatment records confirm in-service treatment for a single instance of low back pain. The Veteran underwent a VA examination in July 2016 to explore the etiology of his back problems. The examiner confirmed current diagnosis of degenerative arthritis of the lumbar spine and lumbosacral strain, but furnished a negative etiological opinion, explaining, “[the] Veteran’s current back condition is not the same condition he was treated for in service,” adding, “[h]e has not established a chronic condition existing since service.” The Board finds the opinion inadequate. First, it fails to give due consideration to the Veteran’s consistent and credible statements concerning continuity of symptomatology since separation. Second, it fails to explain adequately why the Veteran’s documented in-service back pain is etiologically unrelated to his current disability. Even allowing that the condition by which he is currently beset is not the same for which he received in-service treatment, the examiner must further explain why the in-service condition bears no etiological relationship to the current condition. As such, a new examination and medical opinion are necessary to explore adequately the etiological relationship, if any, between the documented in-service back condition and the Veteran’s current disabilities. The matter is REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, schedule the Veteran for a VA examination to ascertain the nature and etiology of his low back disorder or disorders. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a.) Please identify my medical diagnosis the Veteran’s low back disorder or disorders. (b.) For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s back condition began in service or is otherwise related to service, to include the documented in-service back injury? 3. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel