Citation Nr: 18156599 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-58 775 DATE: December 10, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for low back condition is granted. REMANDED The issue of entitlement to service connection for low back condition is remanded. FINDINGS OF FACT 1. In a November 2012 rating decision, the Veteran’s claim for service connection for low back condition was denied on the grounds that the disability did not occur in service and was not caused by service. 2. The Veteran did not express an intent to appeal the November 2012 rating decision and new and material evidence was not added to the record within a year of that decision. Accordingly, the decision is final. 3. The Veteran has submitted new and material evidence in support of the claim for service connection for low back condition since the November 2012 rating decision. CONCLUSIONS OF LAW 1. The November 2012 rating decision that denied service connection for low back condition is final. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for reopening the Veteran’s claim for service connection for low back condition are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to May 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. New and Material Evidence The Veteran’s claim seeking entitlement to service connection for low back condition initially was denied in a November 2012 rating decision. The Veteran did not file a notice of disagreement and took no action to appeal or seek reconsideration. In addition, new and material evidence was not associated with the claims file within one year of the November 2012 decision. Accordingly, the November 2012 rating decision is considered final. 38 C.F.R. §§ 20.302(b)(1), 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). 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. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence for service connection for low back condition considered at the time of the November 2012 rating decision consisted of the Veteran’s service treatment records. Service connection was denied on the grounds that the disability neither manifested in nor was caused by service. The evidence since the November 2012 decision consists of the statements from the Veteran and her family describing the in-service incident the Veteran claims caused her back pain, and VA and private treatment records reflecting treatment for low back pain. This evidence is new because it was not previously considered by agency decision makers, and it is material because it relates to the unestablished element of whether the Veteran sustained an in-service injury. 38 C.F.R. § 3.156(a). Moreover, as the Veteran states that she injured her back when she was struck by a heavy box while in service, and that she has had back pain ever since, the newly submitted evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. The requirements of 38 C.F.R. § 3.156(a) are met and the claim for service connection for low back condition is reopened. REASONS FOR REMAND Entitlement to service connection for low back condition is remanded. Although the Board regrets the additional delay, further development is necessary prior to adjudication of the claim for entitlement to service connection for low back condition. The evidence of record includes multiple VA treatment records reflecting the Veteran’s complaints of and treatment for chronic low back pain. Specifically, the Veteran has been engaged in physical therapy and she has sought treatment through the VA for chronic back pain, including a steroid injection in December 2016. An x-ray and an MRI conducted in May 2015 suggest the possibility of degenerative disc disease. Moreover, the Veteran consistently relates that she injured her back when a heavy box fell on her during the replenishment of a ship. According to the Veteran, there were no female doctors on the ship at the time, she was seen by a “purser” and given pain medication. The Veteran has also consistently related that she has experienced back pain since the in-service incident. The Board notes that the Veteran’s contentions regarding the cause and duration of her back pain have not been addressed. VA must provide an examination where there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury or disease but there is insufficient information to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Given the evidence of treatment for chronic back pain and the Veteran’s account of the in-service incident, the Board finds that the Veteran has satisfied the McLendon requirements and should be afforded a VA examination. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records relevant to the Veteran’s low back condition. 2. After all available records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of her low back condition. 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. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran’s low back condition is causally related to her active service. Please explain why or why not. The examiner is advised that the Veteran is competent to report occurrences and symptoms and that her reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A complete rationale for the examiner’s opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court of Appeals for Veterans’ Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel