Citation Nr: 18161116 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-05 620 DATE: December 28, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. A March 2013 Board decision declined to reopen the previously denied claim of entitlement to service connection for a low back disability on the basis that no new and material evidence had been received to reopen the claim. The decision was not appealed and is final. 2. Evidence received since March 2013 is not duplicative or cumulative of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The March 2013 Board decision, which declined to reopen a claim of entitlement to service connection for a low back disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for a low back disability. 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 with the United States Marine Corps from July 1966 to April 1971. He had service in the Republic of Vietnam and is a recipient of the Purple Heart Medal and Combat Action Ribbon. In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran’s claim of entitlement to service connection for a low back disability was originally denied in a June 1972 rating decision on the basis that although spinal taps were performed in service, the Veteran’s service treatment records (STRs) were negative for any further treatment for a back condition. The Veteran appealed that denial to the Board, who denied the claim in a December 1973 decision, finding that spinal taps performed in service were negative, and no organic defect or disorder of the spine was noted on the April 1973 VA examination except scoliosis of the sixth dorsal vertebra. Board decisions issued in October 1988 and March 2013 declined to reopen the Veteran’s claim on the basis that no new and material evidence had been submitted. The Veteran did not appeal these decisions, and they became final. Consequently, the claim may now 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; 38 C.F.R. § 3.156 (a). The pertinent evidence of record at the time of the March 2013 Board decision, the most recent final decision, included partial STRs, private treatment records, an April 1973 VA examination report, the transcript of a January 1987 Board hearing, and various statements in support of claim. The pertinent evidence received since the March 2013 Board decision includes a lay statement from the Veteran’s wife, transcripts of the Veteran’s November 2014 Decision Review Officer (DRO) hearing and June 2018 Board hearing, and a January 2014 note from VA doctor M.V. In his note, Dr. M.V. wrote that the Veteran “has no signs of Scoliosis in chart or on x-ray, only moderate degenerative changes at L5-S1.” During his November 2014 DRO hearing and June 2018 Board hearing, the Veteran described his current back problems and related them to at least two different in-service combat incidents, one of which involved shrapnel injuries for which he was awarded the Purple Heart Medal. Overall, the Board finds that this evidence is new and material. It is not cumulative or redundant of the evidence previously of record. Moreover, it relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of doing so. Accordingly, reopening the claim of entitlement to service connection for a low back disability is warranted. REASONS FOR REMAND Although the Board regrets the delay, further development is necessary before the Veteran’s claim may be adjudicated. First, the Board notes that the Veteran’s STRs appear to be incomplete. While there are records of his in-service spinal taps, his entrance and discharge examinations are missing, as are reports concerning the incident and injury for which he was awarded the Purple Heart Medal. Therefore, on remand, the agency of original jurisdiction (AOJ) must make attempts to obtain the Veteran’s complete STRs from all possible sources. Additionally, the Board notes that there appear to be outstanding VA treatment records. During his June 2018 Board hearing, the Veteran testified that he was seen for his back at the VA outpatient facility in Hyannis, Massachusetts. Dr. M.V.’s January 2014 note corroborates the Veteran’s assertions that he was evaluated and/or treated by VA for his back disability. Therefore, on remand, the AOJ must attempt to obtain any outstanding VA treatment records. Finally, remand is warranted to afford the Veteran a new VA examination to determine the nature and etiology of his claimed back disability. The Veteran has testified that he currently has a back disability and that he has been dealing with the disability since active service. Dr. M.V.’s note indicates the presence of a current disability, and the Veteran’s testimony concerning the circumstances of an in-service injury have been consistent. His receipt of the Purple Heart Medal and Combat Action Ribbon show that he engaged in combat and was injured. The Veteran was afforded a VA examination in April 1973, but the Board finds it inadequate for rating purposes because the examiner did not find a current disability and considered only records of in-service spinal taps as a possible etiology for a back injury. Accordingly, the matter is REMANDED for the following actions: 1. Obtain all outstanding service treatment records (STRs), to specifically include the Veteran’s entrance and discharge examinations, as well as treatment records related to the incident(s) for which the Veteran was afforded the Purple Heart Medal and Combat Action Ribbon. The efforts undertaken should be documented together with the responses received. If complete STRs cannot be obtained, issue a formal finding of unavailability, notify the Veteran that that his records could not be located, and inform him that he may provide alternative forms of evidence to support his claim. 2. Identify and obtain any outstanding VA treatment records that are not already associated with the claims file, including any records of treatment by Dr. M.V. All efforts to obtain additional evidence must be documented in the record. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed low back disability. The examiner should be provided with the Veteran’s complete claims file, including a copy of this remand. The file must be reviewed in its entirety and the report should note that review. The examiner must elicit a complete history from the Veteran, and he/she is requested to provide a complete rationale for any opinion. Specifically, the examiner(s) is asked to answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran has a low back disability that was incurred during active service? In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner should assume that the Veteran is a credible historian and should specifically address his lay testimony concerning onset, history of treatment, and symptomatology. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   4. Finally, undertake any other indicated development, then readjudicate the issue on appeal. If the benefit sought is not granted, provide the Veteran and his representative a supplemental statement of the case and afford them adequate opportunity to respond. Then, return the case to the Board for further appellate action. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel