Citation Nr: 18102476 Decision Date: 05/15/18 Archive Date: 05/15/18 DOCKET NO. 14-32 030A DATE: May 15, 2018 ORDER The request to reopen the previously denied claim of entitlement to service connection for a low back disability is granted. In addition, some issues have been remanded. FINDINGS OF FACT 1. In an unappealed November 2012 rating decision, the RO denied service connection for a low back disability because the evidence failed to demonstrate that the Veteran suffered from a low back disability that was related to his service. 2. Evidence received since the November 2012 rating decision includes information that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. The November 2012 rating decision that denied service connection for a low back disability became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received after the November 2012 rating decision is new and material 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(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision. The Veteran appeared before the Board during a March 2017 hearing. A transcript of this hearing is of record. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. The Board is required to determine whether new and material evidence has been received before it can reopen a claim. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, VA shall reopen and review an adjudicated claim when a veteran submits new and material evidence that raises a reasonable possibility of substantiating the adjudicated claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means 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 veteran’s claim. 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). Service connection for a low back disability was denied in an in a November 2012 rating decision because the evidence of record failed to demonstrate that the Veteran suffered from a low back disability as a result of his service. The Veteran did not file a notice of disagreement with this rating decision. The November 2012 rating decision became final. In December 2012, the Veteran filed an application to reopen the previously denied claim of entitlement to service connection for a low back disability. In October 2013, the RO reopened and denied the Veteran’s low back disability claim. The October 2013 denial is now before the Board for adjudication. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; Young v. Shinseki, 22 Vet. App. 461, 468 (2011). New evidence submitted after the November 2012 rating decision (the prior final denial which addressed the claim on its merits) includes testimony provided during the Veteran’s March 2017 hearing before the Board. This evidence is new because it was not previously of record. The Board finds that the new evidence is also material because it raises a reasonable possibility of substantiating the claim. Therefore, this new and material evidence is sufficient to reopen the previously denied claim of entitlement to service connection for a low back disability. See 38 C.F.R. § 3.156. REMANDED ISSUES 1. Entitlement to service connection for a cervical spine disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a cervical spine disability because no VA examiner has opined as to whether the Veteran suffers from a cervical spine disabilty as a result of his service. A VA examination is required to resolve this issue. 2. Entitlement to service connection for a low back disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because no VA examiner has opined as to whether the Veteran suffers from a low back disability as a result of his service. A VA examination is required to resolve this issue. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records not already associated with the Veteran’s claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine disability. The examiner must opine whether it is at least as likely as not that any cervical spine disability is related to an in-service injury, event, or disease. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not that any low back disability is related to an in-service injury, event, or disease.   A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Moore, Associate Counsel