Citation Nr: 18159500 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 18-32 248 DATE: December 20, 2018 ORDER As new and material evidence has been received, the request to reopen previously denied claim for service connection for low back disorder is granted. As new and material evidence has been received, the request to reopen the previously denied claim for service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. In a December 2014 rating decision, the RO denied a claim for service connection for low back disorder because the evidence failed to demonstrate that the Veteran had a current diagnosed back disability as result of his service; the Veteran did not appeal or submit new and material evidence within one year of that decision and it is final. 2. The additional evidence associated with the record since the December 2014 rating decision is neither cumulative nor redundant, and relates to an unestablished fact (current disability) that raises a reasonable possibility of substantiating the claim of entitlement to service connection for low back disorder. 3. In the December 2014 rating decision, the RO denied the Veteran’s claim for service connection for PTSD because the evidence failed to demonstrate current diagnosis as result of his period of service; the Veteran did not appeal or submit new and material evidence within one year of that decision and it is final. 4. The additional evidence associated with the record since the December 2014 rating decision is neither cumulative nor redundant, and relates to an unestablished fact (current disability) that raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The December 2014 rating decision which denied entitlement to service connection for low back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been submitted to reopen the claim of entitlement to service connection for low back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The December 2014 rating decision which denied entitlement to service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 4. New and material evidence has been submitted to reopen the claim of entitlement to service connection for PTSD. 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 December 1954 to November 1956. New and Material Evidence Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012). New evidence means 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) (2018). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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). 1. New and material evidence has been received to reopen the previously denied claim for service connection for low back disorder 2. New and material evidence has been received to reopen the previously denied claim for service connection for PTSD In a December 2014 rating decision, the RO denied the Veteran’s claims for service connection for low back disorder and PTSD. His claims were denied based on a determination that the evidence of record failed to demonstrate that the Veteran had current diagnosed disorders that were related to his period of service. The rating decision was not appealed nor was new and material evidence submitted within one year, respectively. Accordingly, the determinations are final. 38 C.F.R. §§ 3.156 (b), 20.1103. The evidence received since the December 2014 rating decision, includes in pertinent part, VA and private medical records that show a diagnosis of degenerative changes in the lumbar spine and VA treatment records that show the Veteran has been diagnosed with PTSD based on his reports of noncombat stressor event during his period of service. This additional medical evidence of record goes towards the element of current disability for low back disorder and PTSD, which was not previously present for the claimed disorders. As such, it is sufficient to reopen the previously-denied claims. In addition, the Veteran has provided lay statements from his wife and family in which they describe their observations of changes in the Veteran’s behavior and his symptoms of sleep impairment, nightmares, and paranoia since his separation from service. Such lay evidence was not previously demonstrated in the record prior to December 2014 rating decision. Assuming its credibility for the purpose of establishing whether new and material evidence has been submitted, the foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims. Therefore, this evidence is new and material and reopening of the claims are in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran seeks entitlement to service connection for a low back disorder. He reports that he injured his back during his period of service when he fell out of moving personnel carrier. He reports that he was treated at field hospital for injury and provided pain medication. VA and private treatment records show current diagnosis of degenerative arthritis of the lumbar spine. The Veteran contends his current low back disorder is a result of injury to his back during his period service. Unfortunately, a response from the National Personnel Record Center (NPRC) shows that his service treatment records are unavailable and considered destroyed in a fire. See February 2014 response from NPRC. There are no sick call or morning records regarding the Veteran from Surgeon General Office (SGO) and there are no available service personnel records on file to attempt to reconstruct the Veteran’s record. See September 2014 response from NPRC. Given the unavailable service treatment records, VA has a heightened duty to assist the Veteran in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran should be afforded VA medical examination to determine the nature and etiology of his diagnosed low back disorder. Since the Veteran contends that his condition was incurred during service and he has experienced symptoms of low back pain since then, and the record medical evidence contains a diagnosis of degenerative arthritis, the Board is the opinion that VA medical examinations are needed in order to address the Veteran’s contentions. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board notes that the Veteran had previously submitted a completed NA Form 13055, Request for Information Needed to Reconstruct Medical Data, and on which he reported that his in-service back injury occurred between February 1955 and April 1955 while he was stationed at Fort Dix. However, he did not provide sufficient unit information for NPRC to conduct a search of sick call and morning reports. See September 2014 response from NPRC. The Veteran now reports that his back injury occurred while he was stationed in Baumholder, Germany when he was a member of Co C, 43rd AIB, Germany. A further attempt should be made to obtain any sick call and/or morning reports with respect to the Veteran’s reported back injury. 2. Entitlement to service connection for posttraumatic stress disorder is remanded. Now that the Veteran’s claim for service connection for PTSD has been reopened, it must be adjudicated on the merits. To date, the RO has not performed such an adjudication subsequent to the December 2014 rating decision. Accordingly, to ensure that the Veteran is not prejudiced, a remand is required so that the Agency of Original Jurisdiction (AOJ) can consider the Veteran’s current claim for PTSD on the merits. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit a completed VA Form 13055 and/or 13075 to allow a further request for unit reports and morning report from the National Personnel Records Center or the appropriate facility regarding back injury sustained from a fall off a moving personnel carrier. It is noted that the Veteran’s unit assignment was Co C, 43rd AIB while he was stationed in Germany between August 1956 to November 1956. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including back injury from a fall off a moving personnel carrier. 3. Conduct any further development deemed necessary in regard to the claim for service connection for PTSD. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel