Citation Nr: 19161237 Decision Date: 08/07/19 Archive Date: 08/07/19 DOCKET NO. 1903279 DATE: August 7, 2019 ORDER New and material evidence having been presented, the Veteran’s claim for service connection for a lower back disorder and a bilateral lower extremities nerve disorder is reopened. REMANDED Entitlement to service connection for a lower back disorder is remanded. Entitlement to service connection for a bilateral lower extremities nerve disorder is remanded. FINDINGS OF FACT 1. The claims for entitlement to service connection for back and leg disorders were last denied in an August 1978 Rating Decision; the Veteran did not perfect an appeal, nor did he submit new and material evidence within one year of that decision. The decision is final. 2. Evidence received since the August 1978 Rating Decision denying service connection for back and leg disorders is neither cumulative nor redundant of the evidence of record at the time of the August 1978 final decision, and raises a reasonable possibility of substantiating the claims as it relates to an unestablished fact. CONCLUSIONS OF LAW 1. The August 1978 Rating Decision that denied service connection for back and leg disorders is final. 38 U.S.C. §§ 7104(b), 7252. 2. As evidence received since the August 1978 final Rating Decision is new and material, the criteria for reopening the previously-denied claim for back and leg disorders have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to January 1975. He served honorably in the U.S. Navy, including sea service. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the July 2017 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and material evidence to reopen a claim of entitlement to service connection for a lower back disorder and a bilateral lower extremities nerve disorder has been presented. Generally, an unappealed rating decision is final based on the evidence of record at the time of the decision, and may not be reopened or allowed based on such evidence. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability there must be evidence of: (1) a present disability for which service connection is sought; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The August 1978 Rating Decision denied service connection as no disorder of the back or leg was noted on examination. In October 2015, private treatment records were received which included assessments and impressions of lumbar disc protrusions, moderate spinal stenosis, degenerative disc disease, osteoarthritis, and lumbar radiculopathy. The Board finds that the October 2015 private medical records present new evidence that was not of record at the time of the August 1978 denial of service connection for back and leg disorders. Because the evidence relates to an unestablished fact necessary to substantiate the claim, the evidence is both new and material, and the claim of entitlement to service connection may be reopened. REASONS FOR REMAND Entitlement to service connection for a lower back disorder and a bilateral lower extremities nerve disorder, to include as secondary to a lower back disorder, is remanded. The Veteran contends that service connection is warranted as his current disorders are related to an in-service event in which a booth supporting a car collapsed on top of him. There are multiple references of the reported incident of record, including reports in an August 1978 report of medical examination for disability evaluation and December 1983 and June 1985 neurological compensation examination reports; however, there are no notations of the accident in the Veteran’s service treatment records. Additionally, the record contains a notation of a September 1973 event in which the Veteran sustained an injury to the head when a can of frozen oysters fell on him; while the Veteran was hospitalized for treatment, these inpatient treatment records are not contained in the Veteran’s service treatment records. The June 1985 neurological compensation examination report notes that he was in various hospitals for a period of five months following the accidents and a January 2015 cervical spine examination report notes that he spent months hospitalized in Groton, Connecticut and later at the Philadelphia Naval Hospital. A remand is thus warranted to associate any related private or inpatient treatment records with the record and to afford the Veteran an examination. The matters are REMANDED for the following action: 1. With respect to the reported 1973, 1974, or 1975 accident in which a booth supporting a car collapsed on top of the Veteran, in a May 1978 application for compensation, he indicated that he received treatment for his back and legs in 1973 at a submarine base hospital in Groton, Connecticut. Please ask the Veteran to (1) specify the dates of treatment/hospitalization; and (2) identify any other hospital(s) where he received treatment for injuries sustained in the reported accident. As the Veteran has variously reported the accident occurring in 1973, 1974, and 1975, please request any documentation or records he may have related to the accident or treatment. 2. Please ask the Veteran to identify the hospital(s) and dates of treatment/hospitalization for injuries sustained in the September 1973 event in which a can of oysters fell on him. 3. Please contact the National Personnel Records Center or other appropriate facility to obtain the inpatient records of the Veteran’s treatment for any hospitals and time periods identified by the Veteran, including but not limited to (1) 1973 and June 12, 1974 – June 19, 1974 records of Naval Submarine Medical Center at Naval Submarine Base New London in in Groton, Connecticut, and (2) June 19, 1974 – November 1974 records of the Philadelphia Naval Hospital / Naval Regional Medical Center Philadelphia. Please document all efforts to obtain these records in the virtual benefits file. 4. Please secure for the record copies of outstanding clinical records of all VA and/or private treatment the Veteran has received for his disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records, specifically including records of any private facilities identified by the Veteran where he was treated and/or hospitalized for injuries sustained in a reported 1973, 1974, or 1975 accident in which a booth supporting a car collapsed on top of him. 5. Please locate and secure for the record any Federal Bureau of Prisons treatment records. A December 9, 2016 Report of Incarceration identifies the federal correctional complex and federal correctional institution where the Veteran was incarcerated and the respective dates of incarceration. 6. Please schedule the Veteran for an examination to determine the nature and etiology of his thoracolumbar spine and bilateral lower extremities nerve disorders. The Veteran’s claims-file must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be conducted. Based on review of the record, the examiner should identify, by diagnosis, all lower back disorders and all lower extremity nerve disorders. For each identified disorder, the examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the disorder is related to a reported 1973, 1974, or 1975 accident in which a booth supporting the car collapsed on top of the Veteran? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the disorder is related to a September 1973 event in which the Veteran sustained an injury to the head while loading stores onto a submarine? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the disorder is otherwise related to service? Additionally, for each identified lower extremity nerve disorder, the examiner should provide an opinion as to the following: (d.) Is it at least as likely as not (a 50 percent or greater probability) that the disorder was caused by the Veteran’s lower back disorder? (e.) Is it at least as likely as not (a 50 percent or greater probability) that the disorder was aggravated by the Veteran’s lower back disorder? The examiner is requested to consider the following: • In an August 1978 report on disability evaluation summary, the examiner rendered a diagnosis of probable multiple trauma in the past with minimal residuals involving the joints of the cervical spine, lower back, and lower legs. The examiner noted that recent X-rays of the lumbosacral spine appeared to be within normal limits. • Private medical records received in October 2015 include assessments and impressions of lumbar disc protrusions, moderate spinal stenosis, degenerative disc disease, osteoarthritis, and lumbar radiculopathy. The examiner must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report post-service symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should   provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.