Citation Nr: 1817644	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  14-33 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUES

1. Whether new and material evidence has been received to reopen claim for service connection for a low back disability.

2. Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1995 to October 2000 in the United States Navy.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction for the case has been transferred to the VA RO in Cheyenne, Wyoming.

In April 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing. A transcript of the hearing has been associated with the claims file.

The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The March 2010 rating decision which denied service connection for a low back disability is final; however, evidence received since that rating decision is new and material, and raises a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

The March 2010 rating decision denying service connection for a lumbosacral spine strain is final; however, the criteria for reopening that claim have been met. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

New and Material Evidence

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 (2017). 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 decision makers. 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) (2017). 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).

Low back disability

In a March 2010 rating decision, the RO denied service connection because the record did not show a current back disability or treatment for an in-service back injury. The Veteran did not appeal that decision nor submit new and material evidence within one year.  The rating decision is thus final based on the evidence then of record.  See 38 U.S.C. §7105(c); 38 C.F.R. § 20.1103 (West 2012).


In April 2015, the Veteran provided testimony at a hearing before the Board that he received a positive nexus opinion linking his back disability to service. It is unclear why, but the cited medical opinion is not part of the Veteran's case file. 

Additionally, the Veteran provided lay statements from two fellow service members who witnessed the back injury he sustained in service during a digging accident. Finally, the Veteran has provided lay statements from his spouse who discusses the onset, severity, and course of the Veteran's back disability. 

Evidence submitted after the March 2010 decision includes the transcript from a March 2017 hearing before the Board, lay statements describing the in-service accident, and lay statements describing the nature and severity of the Veteran's back disability. The lay statements demonstrate that a positive nexus may exist in the Veteran's medical records; however, these records are not currently part of the Veteran's claims file.

Nevertheless, the Board finds that new and material evidence has been presented.  The evidence, including the hearing testimony before the Board and outstanding medical records involving an etiology opinion, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim, including evidence of a current thoracolumbar spine disability and a reported medical opinion suggesting a positive nexus between the Veteran's spine disability and his service.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial.  See 38 C.F.R. § 3.156(a).  Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened.  Justus, 3 Vet. App. at 513.  Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  Accordingly, for all of the above reasons, the Veteran's claim is reopened. 



ORDER

The petition to reopen the previously denied claim for entitlement to service connection for a low back disability is granted.


REMAND

The Board finds that a medical examination of the Veteran's thoracolumbar spine is required to adjudicate the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  Here, he had treatment for a back disability post-separation and has manifested with degenerative disc of the lumbar spine at L5-S1. Additionally, his testimony suggests that while on active duty, he worked with heavy construction equipment involving concrete work during service. Lay testimony support an in-service accident involving heavy machinery. Lay testimony also describes the nature and severity of the Veteran's spine condition as observed by his spouse.

Additionally, the positive nexus opinion, to which the Veteran and his representative cite, is not currently part of the record. The Veteran should supply it or seek VA's assistance in obtaining it.  

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with VA Form 21-4142 to authorize the release of information for his medical records related to his spine treatments. He is encouraged to supply the medical nexus statement discussed during his hearing, cited as a private physician from Rehab Solutions, or to seek VA's assistance in obtaining the statement.

2. After completing the development above, schedule the Veteran for a VA examination of the thoracolumbar spine to evaluate his back disability.

The examiner should provide an etiology opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current back disability is etiologically related to active service.

3. Following completion of the above, readjudicate the Veteran's claim for service connection for a low back disability. If the claim is not granted, send the Veteran and his representative a supplemental statement of the case (SSOC) and allow him or her an appropriate amount of time to respond before returning the matter to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).




______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs