Citation Nr: 18157253 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-04 934A DATE: December 12, 2018 ISSUE Whether new material evidence has been received to reopen the claim for service connection for a back disability, as secondary to the service-connected disability of postoperative status left anterior cruciate ligament repair; and if so, whether the claim should be granted. ORDER The Board has determined that new and material evidence has been received, and to that extent only, the reopening of the claim for service connection for a back disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. Service connection for a back condition was denied in a December 1992 rating decision that was not appealed. 2. Evidence received since the December 1992 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for a back disability. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for a back disability are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1985 to June 1991. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before a decision review officer (DRO) at the RO in November 2017; a copy of the transcript is of record. Claim to Reopen Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. A new theory of causation for the same disease or injury that was the subject of a previously denied claim is not a new claim and is instead a claim to reopen. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008). Therefore, new and material evidence is still required to reopen in such instances. See Roebuck v. Nicholson, 20 Vet. App. 307 (2007). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for a back disability was denied in a December 1992 rating decision based on a determination that VA treatment records showed low back pain with no diagnosis or cause given; the back injury treated in service in February 1986 was acute and transitory. This decision was not appealed nor was new and material evidence submitted within one year, accordingly, the determination was final. 38 C.F.R. §§ 3.156(b), 20.1103 (2017). The evidence received in pertinent part since this decision includes VA treatment records and an examination in January 2015 that showed diagnoses of osteoarthritis (OA) and degenerative disc disease (DDD). As stated above, the Veteran also provided testimony before a DRO in November 2017, attesting as to why he thought that service connection for a back disability was warranted. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for a back disability is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board finds that additional opinion regarding the Veteran’s back disability is required on remand. Namely, the Veteran was afforded a VA examination in January 2015 in which the examiner did not address whether the back disability was aggravated (permanently worsened) by the Veteran’s service-connected disability of postoperative status left anterior cruciate ligament repair. As such, the Board finds that an addendum opinion should be obtained on remand to address this question. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claim. 2. Then, provide access to the electronic claims file to the January 2015 VA examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran’s claimed back disability. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to any back disability present at any time during the pendency of this claim, to include OA and DDD, that the disability was caused or aggravated (permanently worsened) by the Veteran’s service-connected disability of postoperative status left anterior cruciate ligament repair. 3. Upon completion of the addendum ordered above, review the opinion to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel