Citation Nr: 18154961 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-36 843 DATE: December 3, 2018 ORDER New and material evidence has been received, the claim for service connection for a lumbar spine disorder (claimed as back pain) is reopened. REMANDED Entitlement to service connection for a lumbar spine disorder (claimed as back pain) is remanded. FINDING OF FACT New and material evidence has been received since the May 1993 rating decision. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a lumbar spine disorder (claimed as back pain) is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from May 1988 to May 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from an December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a December 2014 rating decision, the RO determined that new and material evidence had not been provided to reopen the claim that had been previously denied in February 1993 and May 1993 rating decisions, the RO confirmed and continued the previous denial of service connection. The Veteran was notified of the adverse determinations, he did not appeal the determination, and no new and material evidence was submitted within the applicable appeal period. Since the final December 2014 decision, evidence received is new and material, and does tend to show that the Veteran's lumbar spine problems may be related to service. In general, rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as 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 (a). In this regard, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder (claimed as back pain) The Veteran asserts that he is entitled to service connection for a lumbar spine disorder. New evidence received since the May 1993 rating decision includes statements by the Veteran’s friends and family, and evidence regarding treatment for a lumbar spine disorder (claimed as back pain). The May 1993 rating decision confirmed and continued the previous denial of service connection from February 1993 which determined that the Veteran had not provided sufficient evidence to establish a current disability and a nexus (a causal relationship between the present disability and the disease or injury incurred or aggravated during service). Having reviewed this evidence, the Board finds that the evidence submitted since the last final denial is new and material, and sufficient to reopen the Veteran's claim. The provided lay statements tend to provide credible evidence of a continuous symptomology of “back pain” that originated in-service and continues to the present day. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disorder (claimed as back pain) is remanded. The Veteran claims he has a lumbar spine disorder (claimed as back pain) due to an in-service injury. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The service treatment records show that the Veteran was a Field Artillery Cannoneer and was treated for episodic mechanical lower back pain in 1991, which was also noted when he left service in May 1992. The Veteran asserts that he has had back pain problems since the in-service injury. The Veteran also provided lay statements from his wife, his friends, and members of his Unit in the Marine Corps that corroborate his assertion regarding a continuous symptomology of back pain. As the record indicates that the Veteran's current lumbar spine disorder (claimed as back pain) may be related to the in-service injury, he should be afforded a VA examination for an opinion concerning the nature and etiology of the claimed disability. The matter is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers and obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. After the above development has been completed and all records associated with the claims file, the Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed lumbar spine disorder (claimed as back pain). Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and the Veteran’s statements describing his in-service injury. The examiner should then: (a) Provide a specific diagnosis for any current lumbar spine disorder (claimed as back pain). (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed lumbar spine disorder (claimed as back pain) originated during, or is etiologically related to, active duty service. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel