Citation Nr: 19115282 Decision Date: 03/05/19 Archive Date: 03/01/19 DOCKET NO. 15-10 644 DATE: March 5, 2019 ORDER New and material evidence having been presented, the previously-denied claim for entitlement to service connection for a low back disability is reopened; to this extent the appeal is granted. REMANDED The appeal for entitlement to service connection for a cervical spine disability is remanded. The appeal for entitlement to service connection for a low back disability is remanded. The claim for entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Service connection was previously denied for a lumbar spine disability in RO decisions of September 1991 and March 2007. 2. The evidence received since the last prior denial of service connection for a lumbar spine disorder was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence having been received to reopen the claim of entitlement to service connection for a lumbar spine disorder, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to March 1979. The Veteran presented sworn testimony in support of her appeal during a hearing before the undersigned Veterans Law Judge in October 2018. Service connection was previously denied for a lumbar spine in RO decisions of September 1991 and March 2007. A thorough review of the record does not reflect new and material evidence for either claim was physically or constructively associated with the claims folder within one year of either rating decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Therefore, the denial of the claim is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for a lumbar spine disorder was denied in the two prior rating decisions, in pertinent part, because there was no evidence of such disorder in the service treatment records. In addition, it was found that the evidence did not show any connection between the Veteran’s low back complaints and her period of service. The evidence added to the record since the last prior denial in March 2007 includes statements and hearing testimony from the Veteran contending that her back and neck problems are secondary to altered gait from service-connected foot problems. (Service connection for right hammer toes with degenerative arthritis and for residuals of a left small toe stress fracture with degenerative arthritis was granted effective in October 2018.) She has also submitted at least one new statement from a treating chiropractor that her back problems had their inception during service. In view of the foregoing, the Board finds that evidence received since the March 2007 rating decision addresses the specific basis for the prior denial, in addition to raising a new theory of entitlement to service connection based upon proximate causation. Further, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Consequently, the Board finds that the evidence received since the last prior denial of service connection for a low back disorder was not previously submitted to agency decisionmakers, relates to an unestablished fact(s) necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received in accord with 38 C.F.R. § 3.156, and the claim is reopened. The underlying issue of entitlement to service connection for a low back disorder is addressed in the REMAND portion of the decision below. REASONS FOR REMAND 1. Low back and neck In addition to the newly-raised theory of secondary service connection, the Veteran maintains that she injured her low back during basic training, and that she was treated for back complaints during service. Her service treatment records do not reflect an injury in basic training, or subsequent complaints or treatment, however. Upon careful review, her available service treatment records do not include any dates during her period of basic training, which she reports took place at Fort Jackson. Furthermore, her service personnel records reflect that in March 1979, she was taken to the hospital at Fort Campbell for a disease which occurred in the line of duty. The nature of the disease is not identified and no report of such a hospital visit occurs in her service treatment records. Therefore, on remand, another search should be made for any additional service treatment records. With regard to the Veteran’s new contention that her back and neck problems are secondary to her service-connected foot problems, a fully-informed medical opinion should be obtained. 2. TDIU During the hearing on appeal, the Veteran asserted that she is unable to work due to service-connected disabilities including a mental health disorder, and her foot disorders, in addition to her back and neck problems. This matter is returned to the RO for initial adjudication. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at Fort Campbell in 1969. Obtain any additional records of medical care during the Veteran’s basic training at Fort Jackson in 1968. Document all requests for information as well as all responses in the claims file. 2. After obtaining any records requested above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her lumbar and cervical spine disabilities. The examiner must opine whether either is more, less, or equally related to an in-service injury, event, or disease, including any injury to the back during basic training. Next the examiner is requested to opine as to whether either the lumbar spine impairment and/or the cervical spine impairment is more, less, or equally likely (1) proximately due to service-connected disability of her feet, or (2) aggravated beyond its natural progression by service-connected disability. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. The complete rationale for all opinions reached should be fully explained. 3. Develop the claim for TDIU, by obtaining the Veteran’s education and employment histories and performing any additional evidentiary development necessary prior to adjudicating this claim. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter