Citation Nr: 18159924 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-55 943 DATE: December 21, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. REMANDED The claim of entitlement to service connection for a low back disability is remanded. FINDING OF FACT The Veteran’s last claim service connect a low back disability was granted in an August 2004 decision, but then severed in an April 2006 decision. He did not appeal that decision, and it is now final. Since then, new evidence has been received that raises the possibility of substantiating the claim. CONCLUSION OF LAW The criteria are met to reopen a claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to January 1973, with additional service for training in 1977. Reopening a claim of entitlement to service connection for a back disability. In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. A finally disallowed claim may be reopened only when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. “New” evidence is evidence not previously submitted to agency decisionmakers. Evidence is “material” if it 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s last claim to service connect his back disability was granted in August 2004 as fibromyalgia, low back with chronic pain. However, service connection for fibromyalgia, low back with chronic pain, was severed in an April 2006 rating decision, and he did not timely appeal that decision. This severance considered the evidence regarding back injury in service and the Veteran’s contentions regarding back injury. Although noted as fibromyalgia, the Board finds that this rating decision included consideration of the back disability as due to injury; the same claim as currently on appeal. Since then, he has reapplied for this claim to be reopened. Among the newly received evidence is a letter from Dr. R.A., who opined that the Veteran’s current low back disabilities are related to his injuries in service. The Board finds this sufficient to reopen this claim, and the claim is granted to this extent. REASONS FOR REMAND The claim of entitlement to service connection for a low back disability is remanded. The Veteran has submitted a medical nexus opinion, but it does not contain any specific details, and is insufficient to grant service connection. The current VA examination is inadequate, as it indicates the Veteran’s low back clearly and unmistakably existed prior to service without any support for that finding. The Veteran’s entrance examination does not show any abnormalities of the spine; therefore, he is considered to have been in sound condition at entrance. Accordingly, the Veteran shall be provided an updated VA examination. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) that any current lumbar spine diagnosis is related to his service. The examiner is asked to review the record prior to the examination. The record shows a pre-entrance examination in October 1969, which did not show any abnormalities of the spine, and he denied having any back trouble at that time. The Veteran is considered to have been in sound condition at entrance. In February 1970, the Veteran complained of pain in the lower back and he was diagnosed with chronic back strain. In April 1970, he reported a three-year history of low back pain, but no recent trauma. He injured his back in May 1970 falling off bleachers and hitting a board. In September 1970, he was put on a 90-day profile due in part to lumbosacral strain. He reports an additional injury to the back prior to leaving for Vietnam. In 1971, while serving in Vietnam, the Veteran was running and he did not see a hole in the ground, and injured his legs and back running into it. His December 1972 exit examination showed no abnormalities of the spine. A March 1977 enlistment examination showed no abnormalities of the spine. He reports that a July 1977 injury, during a period of ACDUTRA, wherein he dropped a telephone pole against his knee, also caused injury to his back when he twisted away from the falling pole. He asserts that he has had persistent back symptoms since his first period of service, which ended in January 1973. In 1981, he was diagnosed with degenerative disk disease. In March 1982 he was diagnosed with arthritis of the lumbosacral spine by Dr. D., via X-ray, who also provided a positive nexus opinion. The Board notes that later X-ray reports were found not to show arthritis. See, for example, the May 1993 VA examination. The examiner is asked to elicit from the Veteran a detailed history of the injuries and his symptoms over the years. The examiner is asked to provide an opinion on whether it is as likely as not that the Veteran’s current back disability is related to the injuries in service. To that end, the examiner is asked to consider the positive nexus opinions of Dr. D., from March 1982, and Dr. A., from July 2015. The examiner is also asked to provide an opinion on whether it is as likely as not that the Veteran’s service-connected bilateral knee arthritis has caused or aggravated his lumbar spine disability. (“Aggravated” means to have caused any increase in the severity of the disability that is beyond the normal progression of the disability.) The examiner is asked to conduct a search of the relevant literature prior to opining. All opinions must be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson