Citation Nr: 18109369 Decision Date: 06/08/18 Archive Date: 06/07/18 DOCKET NO. 15-14 754 DATE: June 8, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for lumbar spine disability. The appeal is granted to that extent only. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a June 1994 rating decision, the AOJ denied service connection for a lumbar spine disability. The Veteran was notified of that decision and of his appeal rights. He did not appeal. 2. New and material evidence has been received since the June 1994 rating decision that denied service connection for lumbar spine disability. CONCLUSIONS OF LAW 1. The June 1994 rating decision denying service connection for a lumbar spine disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the June 1994 rating decision is new and material and the claim of entitlement to service connection for lumbar spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to June 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2017, the Veteran testified before the undersigned during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims file. New and Material Evidence Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is described under 38 U.S.C. § 5108, which provides that “[i]f 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.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). Service connection for lumbar spine disability was denied by a June 1994 rating decision. Since that decision, VA examinations have been conducted in June 2012 and December 2014. These exams constitute new and material evidence sufficient to reopen the claim for service connection of the lumbar spine. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran’s December 2014 VA examination contained a negative nexus opinion with reliance of the fact of the Veteran having suffered a motorcycle accident. During the Board hearing, the Veteran clarified he did not suffer the motorcycle accident. Therefore, a new VA examination is required to be conducted under the correct facts. 2. Entitlement to a TDIU is remanded. As a decision on low back service connection could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any lumbar spine disorder, to include degenerative arthritis. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. (a) Please state all lumbar spine diagnoses, to include degenerative arthritis. (b) For each lumbar spine disability identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the condition is etiologically related to the Veteran’s active service. Please address the STRs which reflect in-service complaints as to the lumbar spine, and the Veteran’s lay statements, to include his description of injuries suffered in service as to the low back. (c) The examiner should offer an opinion as to whether it is at least as likely as not that any service-connected disability to include the cervical spine caused OR permanently aggravated the Veteran’s lumbar spine disability. 2. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issue of service connection for lumbar spine disability and entitlement to TDIU. If the benefit sought on appeal is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel