Citation Nr: 18128317 Decision Date: 08/21/18 Archive Date: 08/21/18 DOCKET NO. 16-10 743 DATE: August 21, 2018 ORDER A reopening of the claim for entitlement to service connection for low back disability is granted. REMANDED Entitlement to service connection for low back disability is remanded. FINDINGS OF FACT 1. In an unappealed July 1995 decision, service connection for low back pain was denied. 2. New evidence received since the July 1995 decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for low back disability. CONCLUSIONS OF LAW 1. The July 1995 Regional Office (RO) decision denying service connection for low back pain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence has been received since the RO’s July 1995 decision, and the claim of service connection for low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1976 to December 1979 and November 1981 to December 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision. The Veteran testified at an October 2017 Travel Board hearing; a transcript of the hearing is associated with the record. 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for low back disability The claim for entitlement to service connection for low back pain was addressed in a July 1995 rating decision. The RO found no current disability existed and denied the claim. The Veteran did not appeal the denial and the July 1995 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464, 468 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). The finality of a previously disallowed claim can be overcome by the submission of new and material evidence, however. See 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). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened the evidence is presumed to be credible. Savage v. Gober, 10 Vet. App. 488, 493–94 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Since the July 1995 rating, an October 2015 VA medical opinion has been associated with the record that noted diagnoses of mild multilevel degenerative disc disease and mild straightening of the normal lumbar lordosis. This evidence is new because it was not previously considered. It is material because it relates to previously unestablished elements of the Veteran’s low back claim: a current disability. Thus, new and material evidence has been received and reopening the claim for entitlement to service connection for low back disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for low back disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for low back disability because no examiner has addressed the nature of the Veterna’s low back disabilites and opined as to the etiology of all diagnosed low back disabilities. A November 2014 private medical letter related the Veteran’s lumbar pain and strains to service but did not provide a rationale for this finding. An October 2015 VA medical opinion diagnosed mild multilevel degenerative disc disease and “mild straightening of the normal lumbar lordosis, possibly secondary to muscle spasm” but did not address the straightening of normal lumbar lordosis in its rationale. Thus, remand is required. The matter is REMANDED for the following action: 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 related to an in-service injury, event, or disease, including heavy lifting, grinding work, painting, and chipping work while in service. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel