Citation Nr: 18128652 Decision Date: 08/22/18 Archive Date: 08/22/18 DOCKET NO. 15-23 118A DATE: August 22, 2018 ORDER The petition to reopen the claim of service connection for a low back disorder is granted. REMANDED The newly reopened claim of entitlement to service connection for a low back disorder, to include degenerative joint and disc disease of the lumbar spine, is remanded. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a low back disorder in September 1996. The Veteran was notified of this decision that same month and did not file a notice of disagreement nor was evidence received within the proscribed period which would have allowed the claim to remain open. 2. Evidence received since the denial of entitlement to service connection for a low back disorder raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 1996 rating determination denying service connection for a back disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of service connection for a back disorder has been received. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1975 to February 1996. The Veteran appeared at a Central Office hearing before the undersigned Veterans Law Judge in January 2017. A transcript of the hearing is of record. New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." Id. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id. A review of the record reveals that the RO denied service connection for a back disorder in September 1996. The Veteran was notified of this decision later that month and did not appeal. The RO noted at that time that although there was a record of treatment in service for back problems, no permanent residual or chronic disability subject to service connection was shown by service medical records or demonstrated by evidence following service. The RO observed that the Veteran failed to report for the VA orthopedic examination and that no request to reschedule the examination was received. It indicated that the evidence of record was inconclusive to establish a chronic disability associated with the Veteran's military service. Evidence available at the time of the prior final denial included the Veteran’s service treatment records and the notice of his failure to appear for the requested VA examination. Evidence received subsequent to the prior denial includes private and VA treatment records; statements and testimony from the Veteran; a statement from the Veteran’s spouse; and the results of a July 2010 VA examination. The additional evidence added now reveals that the Veteran currently has degenerative joint and disc disease of the lumbar spine. The Veteran has also testified as to having continuous symptoms of low back problems since service. In addition, his wife has submitted a statement that the Veteran has been suffering from low back pain for 25 years, which would place the onset during the Veteran’s miliary service, and that the Veteran noticed his back condition more toward the end of his military career. The Board does note that while the July 2010 VA examiner provided a negative opinion, as will be discussed below in the remand section, there are some notations in the report that do not correspond to the findings in the Veteran’s service records, to include the examiner indicating that the Veteran only reported having back problems on one occasion in 1982. As such, the Board is giving this opinion little to no probative value. The newly received evidence relates to previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the September 1996 rating determination is new and material to reopen service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The reopened issue will be addressed in the remand section below. REASONS FOR REMAND As the matter has been reopened, the Veteran should be scheduled for a VA examination to determine the etiology of any current low back disorder and its relationship, if any, to his period of service. The Board notes that the Veteran was afforded a VA examination in July 2010, at which time the examiner stated that it was less likely than not that the Veteran’s low back disorder was related to his period of service. The Board observes that one of the bases for the examiner’s opinion was that the Veteran was evaluated for low back pain on only one occasion in 1982. The Veteran’s treatment records, particularly in the years closer to retirement, contain notations of back problems, as well as the Veteran reporting having recurrent back pain on his retirement report of medical history. Moreover, both the Veteran and his spouse have indicated that the Veteran has had low back problems since his time in service. Given the foregoing, the Veteran should be afforded an additional VA examination to determine the nature and etiology of any current low back disorder, to include degenerative disc and joint disease, and its relationship, if any, to the Veteran’s period of service. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current low back disorder, to include degenerative disc and joint disease. All indicated tests and studies are to be performed and all findings are to be reported in detail. The entire record should be made available to the examiner and the examiner should note such review in his/her report. The examiner should identify all low back disorders. The examiner is requested to render an opinion as to whether it is at least as likely or not (50 percent probability or greater) that any current low back disorder is related to the Veteran’s period of service. Complete detailed rationale is requested for any opinion that is rendered. When rendering the opinion, the examiner is requested to address and discuss the Veteran and his spouse’s reports of continuous symptoms from service as well as the inservice notations of back pain and the Veteran’s reports of recurrent back pain on his service separation report of medical history. (Continued on the next page)   3. Review the claims file. If any development is incomplete, including if the examination report does not contain sufficient information to respond to the questions posed, take corrective action before readjudication. See Stegall v. West, 11 Vet. App. 268 (1998). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. S. Kelly, Counsel