Citation Nr: 18160171 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-35 758 DATE: December 26, 2018 ORDER New and material evidence having been submitted, the Veteran’s claim for entitlement to service connection for a lower back condition is reopened. New and material evidence having been submitted, the Veteran’s claim for entitlement to service connection for a right leg condition is reopened. REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a right leg condition, to include as secondary to a lower back condition, is remanded. FINDINGS OF FACT 1. Evidence received since the February 2013 rating decision denying service connection for a lower back condition is neither cumulative nor redundant of the evidence of record at the time of the February 2013 final decision, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 2. Evidence received since the February 2013 rating decision denying service connection for a right leg condition is neither cumulative nor redundant of the evidence of record at the time of the February 2013 final decision, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. CONCLUSIONS OF LAW 1. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for a lower back condition based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for a right leg condition based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from August 1979 to January 1981. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a videoconference hearing before the undersigned in September 2018. A transcript of the proceeding is of record. New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 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 the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Whether new and material evidence has been received to permit reopening the Veteran’s claim for entitlement to service connection for a lower back condition The Veteran filed a claim for service connection for a lower back condition in January 2013. At that time, the evidence of record included VA treatment records ranging from February 2010 to February 2013. The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim, nor did the AOJ provide a VA examination for this condition. The AOJ denied the Veteran’s claim for service connection for a lower back condition in a February 2013 rating decision, indicating that there was no record of treatment in service for a lower back condition. The Veteran was provided notice of this decision and his appellate rights by letter dated February 22, 2013. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence submitted since the February 2013 final AOJ rating decision includes additional VA treatment records and service treatment records. It is worth noting that the AOJ also found that the evidence submitted since the February 2013 decision was new and material to permit reopening the Veteran’s claim in its January 2015 rating decision. The Board also finds that the information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening his claim for entitlement to service connection for a lower back condition. Specifically, the new evidence of record suggests that the Veteran has a current diagnosis for his lower back condition, which raises the possibility of substantiating his claim; furthermore, references are made to an in-service injury to his lower back. Therefore, the Board finds that the evidence of record submitted since February 2013 pertaining to the Veteran’s lower back disability is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. 2. Whether new and material evidence has been received to permit reopening the Veteran’s claim for entitlement to service connection for a right leg condition The Veteran filed a claim for service connection for a right leg condition in January 2013. At that time, the evidence of record included VA treatment records ranging from February 2010 to February 2013. The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim, nor did the AOJ provide a VA examination for this condition. The AOJ denied the Veteran’s claim for service connection for a right leg condition in a February 2013 rating decision, indicating that there was no record of treatment in service for right leg pain. The Veteran was provided notice of this decision and his appellate rights by letter dated February 22, 2013. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence submitted since the February 2013 final AOJ rating decision includes additional VA treatment records and service treatment records. It is worth noting that the AOJ also found that the evidence submitted since the February 2013 decision was new and material to permit reopening the Veteran’s claim in its January 2015 rating decision. The Board also finds that the information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening his claim for entitlement to service connection for a right leg condition. Specifically, the new evidence of record suggests that the Veteran’s right leg experiences pain that appears to be caused by his lower back injury, which raises the possibility of substantiating his claim. Therefore, the Board finds that the evidence of record submitted since February 2013 pertaining to the Veteran’s right leg disability is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. REASONS FOR REMAND Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. 1. Entitlement to service connection for a lower back condition is remanded. 2. Entitlement to service connection for a right leg condition is remanded. It was established during the Veteran’s September 2018 hearing that there are outstanding VA treatment records, service treatment records, and service personnel records that are missing from the file. The Board will remand and attempt to acquire these records. The Board will defer consideration of additional development pending the receipt of pertinent evidence. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the “chicken-or-egg” dilemma faced by VA when requesting opinions and making credibility determinations with an undeveloped record, and recognizing that fact-finding is a responsibility that is ultimately committed to the Board and not a VA medical examiner). The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from September 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for any lower back or right leg condition. Specifically, St. Albans Hospital in 2012 and 2013. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Associate the Veteran’s complete service treatment records and military personnel records with the file. Attempt to determine the location of any available treatment records from the Naval Hospital in Orlanda in approximately August and September 1979 as well as any treatment records from the Naval Medical Center in Norfolk, VA. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel