Citation Nr: 18119936 Decision Date: 07/19/18 Archive Date: 07/19/18 DOCKET NO. 15-24 355 DATE: July 19, 2018 ORDER New and material evidence has been received to reopen the service connection claim for a low back disorder (formerly characterized as a back injury). REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for right lower extremity neuropathy, including as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for left lower extremity neuropathy, including as secondary to a cervical spine disorder, is remanded. The issue of whether new and material evidence has been received to reopen a service connection claim for a cervical spine disorder is remanded. FINDINGS OF FACT 1. In an unappealed October 1994 rating decision, the RO denied the Veteran’s service connection claims for a low back disorder. 2. Evidence received since the last final rating decision in October 1994 raises a reasonable possibility of substantiating the claim of service connection for a low back disorder. CONCLUSIONS OF LAW 1. The October 1994 rating decision denying service connection for a low back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The additional evidence received since the October 1994 rating decision is new and material, and the service connection claim for a low back disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1974 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated January 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Petition to Reopen Previously Denied Service Connection Claim In its October 1994 rating decision, the RO denied the Veteran’s original service connection claim for a low back injury. See Rating Decision dated October 28, 1994. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. §7105; 38 C.F.R. §§ 3.160(d), 20.302. The Board finds that the Veteran did not appeal the October 1994 rating decision that as relevant here denied service connection for a low back disorder, nor was new and material evidence received within a year of issuance of the notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, “[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.” “The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find.” Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). “New” evidence is defined as 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). 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). In May 2011, the Veteran sought to reopen, as relevant here, a service connection claim for a low back disorder. Based on the procedural history of the case, the last final decision pertinent to the Veteran’s low back disorder is the October 1994 rating decision. The evidence of record at the time of the October 1994 rating decision consisted of the Veteran’s August 1994 claim for compensation, his service treatment records (STRs), and a September 1994 VA examination report, which reflected no specific low back diagnosis. Subsequent to the October 1994 rating decision, various pieces of evidence have been added to the claims file relevant to the Veteran’s claim for service connection for a low back disorder, including a December 2012 DBQ showing a diagnosis of lumbar spine spondylosis, and a January 2013 VA examination report that reflects a diagnosis of a closed compression fracture of the lumbar spine, status post lumbar spine fusion. The Board finds that the new evidence relates to the previously unestablished element of a current disability and raises a reasonable possibility of substantiating such claim. Accordingly, new and material evidence has been received, and to this extent only, the claim of service connection for a low back disorder is reopened. REASONS FOR REMAND An additional VA compensation examination is needed to ascertain the likely etiology of the Veteran’s low back disorder and claimed neuropathy of the lower extremities. In this regard, the Board finds that a January 2013 VA thoracolumbar spine opinion is inadequate to decide the claim. While the examiner opined that the Veteran’s low back disorder is less likely than not related to service, the examiner, in considering the etiology of the disorder, failed to discuss the relevance of the Veteran’s military occupational specialty (MOS) of Parachutist noted in his military personnel records, February 1975 and December 1978 notations in the Veteran’s service treatment records (STRs) reflecting back pain, or the Veteran’s April 1994 Report of Medical History in which he endorsed recurrent back pain and the examiner noted that the Veteran reported a periodic history of low back pain. Notably, the examiner did not address the Veteran’s statement that as a Master Parachutist he made at least 65 parachute jumps during service, and that he was often treated for back injuries at drop zones, which were not documented in his STRs. See Statement in Support of Claim dated August 8, 2012. As to the claims of service connection for neuropathy of the lower extremities, the Board observes that the Veteran was diagnosed with radiculopathy on the December 2012 DBQ along with the lumbar spine diagnosis; however, the January 2013 VA examination report indicates that radiculopathy in the lower extremities was not shown on examination (but does acknowledge intermittent pain in the right lower extremity as well as paresthesias and/or dysesthesias in both lower extremities). Clarification is therefore needed to determine not only the presence of disability, but also its etiology. Given the deficiencies as noted above, another examination and opinion is necessary. Lastly, a Statement of the Case (SOC) is needed with respect to the petition to reopen a previously denied claim of service connection for a cervical spine disorder. In March 2013, the Veteran filed a timely notice of disagreement (NOD) within the applicable time period, identifying four issues for appeal, including service connection for osteophytes of the cervical spine. However, the April 2015 SOC addresses only the lumbar spine and right and left lower extremities service connection claims; it does not address the issue of entitlement to service connection for a cervical spine disorder (referenced in the NOD as osteophytes of the cervical spine). See SOC dated May 28, 2015 at pgs. 1, 25-26. The Veteran’s NOD placed the claim in appellate status, entitling the Veteran to an SOC addressing that claim pursuant to 38 U.S.C. § 7105(d)(1) and 38 C.F.R. §§ 19.26, 19.29, and 19.30. The Board has no discretion to circumvent the aforementioned statutory and regulatory provisions. Hence, the claim must be remanded for issuance of an SOC that addresses the Veteran’s request to reopen the previously denied claim for service connection for a cervical spine disorder. Manlincon v. West, 12 Vet. App. 238, 240 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Thus, the Board accepts limited jurisdiction over the cervical spine issue for the sole purpose of remanding to order issuance of a SOC along with information about the process for perfecting an appeal as to this claim, if the Veteran so desires. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the etiology of low back disorder and claimed neurological impairment of the right and left lower extremities. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the claims file was reviewed. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the reviewing examiner is requested to: (a) Indicate all low back disorders and neurological impairment in the lower extremities. (b) Provide an opinion as to whether the current low back disorder is at least as likely as not (50 percent or higher degree of probability) related to service. **In addressing this question, please consider the Veteran’s report of making at least 65 parachute jumps, that he sustained repeated traumas through hard landings during parachute jumps in service, and that he reported recurrent low back pain at the time of his April 1994 separation examination. (c) Clarify the presence of neurological impairment in the right and/or left lower extremities. See December 2012 DBQ reflecting a diagnosis of radiculopathy versus January 2013 VA examination report. If radiculopathy is no longer present, explain why. (d) If the examiner determines that the Veteran’s low back disorder is related to service, provide an opinion as to whether any radiculopathy/neuropathy of the lower extremities diagnosed since the date of claim is at least as likely as not (50 percent or higher degree of probability) CAUSED BY or AGGRAVATED by the low back disorder. (e) Also comment on the Veteran’s claim that any current radiculopathy/neuropathy of the lower extremities is related to his cervical spine disorder. **Although the entire claims file should be reviewed, attention is directed to the Veteran’s military occupational specialty as a parachutist (See undated DD Form 214 covering service period April 1978 to July 1974); the March 4, 2013 Notice of Disagreement (NOD); the May 28, 2015 Appeal to Board of Veterans’ Appeals, Section 10 narrative (VA Form 9); and the service treatment records, including February 12, 1975 injury to upper back/muscle strain, December 18, 1978 report of painful back for three days, and July 1974 reports of Medical History and Examination, and April 1994 reports of Medical History and Examination, including the Veteran’s endorsement at separation of recurrent back pain (See 09/04/2014 “STR – Medical” in claims file). A complete rationale should be provided, citing to specific evidence of the record, as necessary. 3. Then, readjudicate the remanded issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate time period within which to respond. (Continued on the next page)   4. Issue a SOC pertaining to the issue of whether new and material evidence has been received to reopen a claim of service connection for a cervical spine disorder. This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel