Citation Nr: 18112455 Decision Date: 06/19/18 Archive Date: 06/19/18 DOCKET NO. 15-10 799 DATE: June 19, 2018 ORDER Whether new and material evidence has been received to reopen a claim of service connection for a low back disability is granted. Whether new and material evidence has been received to reopen a claim of service connection for a jawbone disability is denied. REMANDED Entitlement to service connection for a low back disability on de novo review is remanded. FINDINGS OF FACT 1. An unappealed April 1988 rating decision denied service connection for a low back disability on the basis that such disability was not shown. 2. Evidence received since April 1988 shows that the Veteran has a chronic low back disability; relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability; and raises a reasonable possibility of substantiating such claim. 3. An unappealed August 2002 rating decision denied service connection for a jawbone disability on the basis that such disability was not shown. 4. Evidence received since the August 2002 rating decision is cumulative and does not tend to show that the Veteran has a jawbone disability; does not relate to an unestablished fact necessary to substantiate the claim of service connection for a jawbone disability; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for a low back disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has not been received, and the claim of service connection for a jawbone disability may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1984 to December 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision. In his February 2015 substantive appeal, the Veteran requested a Travel Board hearing before the Board; in May 2015 correspondence, he withdrew the hearing request. Service Connection Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability is granted. An unappealed April 1988 rating decision denied the Veteran service connection for a low back disability based essentially on findings that his back condition in service was acute and transitory, and that he was not shown to have a chronic back disability. He did not appeal that rating decision, or submit new and material evidence within a year following, and it is final based on the evidence then of record (and is the last prior final rating decision in the matter). 38 U.S.C.§ 7105. Evidence of record at the time of the April 1988 rating decision included the Veteran’s service treatment records (STRs), his statements and the report of a March 1988 VA orthopedic examination. A January 1987 STR notes the Veteran’s complaint of back trauma from heavy lifting; the diagnosis was back strain. A March 1988 lumbar spine X-ray was interpreted as normal. Accordingly, for evidence to relate to an unestablished fact necessary to substantiate the claim, and be new and material, it would at least have to show that the Veteran has a chronic low back disability. Evidence received since the April 1988 rating decision includes a May 2005 private treatment record which shows a diagnosis of lumbar spine degenerative disc disease (DDD) and an April 2006 VA examination report which notes “chronic lumbosacral spine”. Such evidence directly addresses the basis for the prior denial of this claim; pertains to an unestablished fact necessary to substantiate the claim; and, considering that the Veteran sustained a back injury in service to which a current disability may be attributed, and particularly in light of the “low threshold” standard for reopening endorsed by the Court in Shade, raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received is both new and material and that the claim of service connection for a low back disability may be reopened. De novo consideration of the claim is discussed in the remand below. 2. Whether new and material has been received to reopen a claim of service connection for a jawbone disability is denied. An August 2002 rating decision denied the Veteran service connection for a jawbone disability, based essentially on a finding that the evidence of record did not show a current diagnosis of a jawbone disability (from surgery in service). He was informed of, and did not appeal, that decision, or submit new and material evidence in the following year, and it is final. 38 U.S.C. § 7105. Evidence of record at the time of the August 2002 rating decision included the Veteran’s STRs, his statements, and postservice private treatment records, which do not show or suggest he had a jawbone disability. His STR show that he underwent an osteotomy for surgical correction of a skeletal facial deformity, a childhood open bite. Evidence received since the August 2002 rating decision includes VA and private treatment records, lay statements from the Veteran and the report of a May 2006 VA examination. As the claim was previously denied based on a finding that there was no diagnosis of a jawbone disability, for evidence to be new and material in this matter, it would have to tend to show that the Veteran has a jawbone disability (related to his service/surgery therein). The Veteran’s additional lay statements describing residuals of his in-service operation are cumulative, and not new, evidence. On May 2006 VA examination, the examiner noted that the osteotomy in service was successful in establishing a closed bite. There was no disfigurement, masticatory interference, or phonation incompetence, and the Veteran’s tongue was normal. There was no diagnosis of a jawbone disability. This evidence is considered new, but not material, because it does not tend to show that the Veteran has a jawbone disability (related to his service/surgery therein). Accordingly, the Board must find that the additional evidence received since August 2002 does not address an unestablished fact necessary to substantiate the claim (that he has a jawbone disability etiologically related to his service); does not raise a reasonable possibility of substantiating such claim; and is not new and material. Even the low threshold standard for reopening a claim endorsed by the Court in Shade is not met, and the claim of service connection for a jawbone disability may not be reopened. REASONS FOR REMAND Entitlement to service connection for a low back disability on de novo review is remanded. In April 2006 the Veteran was afforded a VA examination to ascertain the etiology of his low back disability. The diagnosis was “chronic lumbsacral spine”. The examiner noted that the Veteran suffered a “strain type injury of the low back” in service and opined there was no relationship between that kind of injury and the Veteran’s reported DDD of the lumbosacral spine. The Board finds the opinion inadequate for rating purposes because it is conclusory; it lacks sufficient explanation of rationale. The opinion also does not reflect consideration of the Veteran’s lay reports that he has experienced low back pain since service. Accordingly, an examination to secure an adequate advisory medical opinion in this matter is necessary. The matters are REMANDED for the following action: 1. The AOJ should arrange for an orthopedic examination of the Veteran to obtain a medical advisory opinion regarding the likely etiology of his low back disability. On a review of the record and interview/examination of the Veteran the consulting provider should: (a) Identify (by diagnosis) each low back disability found (or shown by the record during the pendency of the instant claim). (b) Identify the likely etiology for each low back disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such is related to the Veteran’s service, to include as due to or as a consequence of the Veteran’s injury in service? If not, please identify the etiology considered more likely. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. If the opinion is to the effect that the injury in service was acute and did not result in any residual pathology, please cite to the factual data that support that conclusion. If the opinion is to the effect that a lifting injury would not result in degenerative disc disease, please cite to medical literature that supports such conclusion. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel