Citation Nr: 18157056 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-51 066 DATE: December 11, 2018 ORDER New and material evidence having been received, the Veteran’s previously denied 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. In a March 2013 rating decision, the RO denied entitlement to service connection for a low back disorder. The Veteran was informed of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. Additional evidence received since the March 2013 rating decision relates to unestablished facts and raises the reasonable possibility of substantiating the claim for entitlement to service connection for a low back disorder. CONCLUSIONS OF LAW 1. The March 2013 rating decision that denied the Veteran’s service connection claim for a low back disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The evidence received since the March 2013 rating decision is new and material, and the claim for service connection for a low back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army and Army Reserves. He had a period of active duty for training (ACDUTRA) from January 1979 to May 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision. 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for a low back disorder. The Veteran's service connection claim for a low back disorder was initially denied in a March 2013 rating decision. The rating decision stated that there was no evidence of a current diagnosis of a low back disorder. The Veteran was informed of this decision and his appellate rights in an April 2013 letter. However, he did not file a notice of disagreement or submit additional evidence related to his claim within one year of the date of notification. Therefore, the March 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. 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. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). At the time of the March 2013 rating decision, the evidence of record included the Veteran’s statements, service treatment records (STRs), and private treatment records dated from August 2003 to December 2011. In the Veteran’s May 2011 claim, he reported injuring his back during his period of ACDUTRA in February 1979 when he slipped in the mud and fell off a dozer. The Veteran reported that he was given aspirin and sent back to duty. He had experienced back problems since that time. The Veteran’s service treatment records do not include evidence of complaints, treatment, or diagnoses related to a low back disorder. After service, a June 1999 private treatment record noted the Veteran’s complaint of left flank pain from the previous night. The clinical impression was back strain, acute musculoskeletal pain/strain. A few months before the Veteran filed his initial claim in May 2011, a January 2011 private treatment record stated that a lumbosacral spine x-ray yielded an impression of senescent/degenerative changes. The evidence that has been associated with the record since the March 2013 rating decision includes VA treatment records dated from June 2003 to January 2017. In December 2016, a VA treatment record noted that the Veteran had chronic low back pain as well as limited flexion in the lumbar spine. As this record provides new information regarding the functional impairment caused by the Veteran’s low back pain, the Board finds that it is material evidence regarding the question of whether the Veteran has a current low back disorder. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). As new and material evidence has been submitted, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran has not yet been provided with a VA examination or medical opinion related to his service connection claim for a low back disorder. As noted above, the record indicates that the Veteran has a current low back disorder. The Veteran has asserted that he sustained a low back injury during his ACDUTRA service, and he has experienced low back problems since the injury. The Veteran is competent to report observable events and symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the evidence raises the possibility that the Veteran has a current low back disorder that is related to active service, the Board finds that a remand is necessary to afford the Veteran a VA examination and medical opinion. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his low back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the South Texas Veterans Health Care System dated since January 2017. 2. After the preceding development in paragraph 1 is completed, schedule a VA examination in relation to the Veteran's service connection claim for a low back disorder. Any and all studies, tests, and evaluations deemed necessary should be performed. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current low back disorders and/or functional impairment caused by low back pain. For each identified disorder and/or functional impairment, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that it manifested during, or is otherwise related to, the Veteran’s period of active duty for training (ACDUTRA), to include any injuries therein. (Continued on the next page)   In providing an opinion, the examiner should address the following: (1) the Veteran’s May 2011 claim in which he reported injuring his back in February 1979 when he fell from a dozer, and having back problems since that time; and (2) the Veteran’s October 2016 VA Form 9 in which he asserted that his low back disorder is related to the physical demands of active service, including the heavy equipment he had to constantly carry, the long marches, and the constant physical training. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel