Citation Nr: 18156660 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 17-00 988 DATE: December 11, 2018 ORDER Reopening of a previously denied claim of service connection for back muscle spasms is granted. REMANDED The claim of service connection for back muscle spasms is remanded. FINDINGS OF FACT 1. Service connection for back muscle spasms was most recently denied in a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 2. Evidence received since September 2009 is not cumulative and redundant of evidence already of record, addresses a previously unestablished fact, and raises the reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The September 2009 VA RO rating decision denying service connection for back muscle spasms is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100 (2018). 2. The criteria to reopen the previously denied claim of service connection for back muscle spasms are 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 in the United States Army from July 1969 to June 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a VA RO. New and Material Board decisions are generally final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). The Veteran’s claim of entitlement to service connection for back muscle spasms was denied in a September 2009 decision. The claim was denied because no permanent residual or chronic disability subject to service connection was shown. The Veteran did not appeal the denial, and it became final in September 2010. Since that September 2009 decision, the Veteran has submitted a December 2016 VA examination which indicated a diagnosis of mild compression deformity of Thoracic T5, without retropulsion or nerve compression. As this new evidence shows a current disability of the spine, it addresses an unestablished fact and requires reopening of the previously denied claim. REASONS FOR REMAND The duty to assist requires a VA examination when there is evidence of a current disability, and injury or disease in service, an indication of a link between them, and insufficient evidence of record to resolve the nexus question. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has here attempted to secure an examination for the incarcerated Veteran several times. Unfortunately, in the last attempt of October 2013, it is not clear that the VA medical center (VAMC) at Temple was fully aware of his status, and what arrangements were made to secure an examination; VAMC Houston appears to have tried to help matters by referring the examination request to a facility closer to the Veteran for scheduling, but the vital information was lost in the transfer. To ensure full compliance with the duty to assist, remand is required for a final, fully documented attempt. The matter is REMANDED for the following action: 1. Take appropriate steps to obtain updated treatment records from the Texas Department of Corrections (TDOC), to include securing any necessary and appropriate releases from the Veteran. In the alternative, he may be informed that he can submit the records himself. 2. Take appropriate steps to schedule the Veteran for a VA spine examination, and document all efforts. If securing the Veteran’s appearance for an examination is not possible, such must be noted in the file and the Veteran notified and informed of potential alternative evidence. The examiner must review the claims file in conjunction therewith. The examiner must identify all current diagnoses of the spine, to include any condition manifested as recurrent spasms. For each such condition, the examiner must opine as to whether it is at least as likely as not caused or aggravated by service. Compression fractures of the thoracic spine must be discussed. Full and complete rationales for all opinions expressed are required. 3. Readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDermott, Associate Counsel