Citation Nr: 20002008 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-46 074A DATE: January 9, 2020 ORDER New and material evidence having been submitted, the request to reopen a claim for service connection for a back condition is granted. New and material evidence having been submitted, the request to reopen a claim for service connection for sinusitis is granted. Service connection for sinusitis is denied. REMANDED Service connection for a back condition is remanded. FINDINGS OF FACT 1. Evidence received since a final July 1972 rating decision is new and material and raises a reasonably possibility of substantiating the claim for service connection for a back condition. 2. Evidence received since a final July 1972 rating decision is new and material and raises a reasonably possibility of substantiating the claim for service connection for sinusitis. 3. The Veteran does not have a current diagnosis of sinusitis. CONCLUSIONS OF LAW 1. The criteria for reopening a claim for service connection for a back condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for reopening a claim for service connection for sinusitis have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision. New and Material Evidence Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened, and the old disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means 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 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Back Condition The Veteran was previously denied service connection for a back condition in a July 1972 rating decision. The basis for this denial was that there was no evidence the Veteran had a back disability during service. The Veteran did not appeal this decision and therefore it is final. Since that decision, additional evidence has been received, including treatment records from the VAMC. This evidence is new because it was not part of the record at the time of the July 1972 rating decision. Further, this evidence is also material because these records show treatment for a current back disability which raises a reasonable possibility of substantiating the claim. As new and material evidence has been received, the claim is reopened. Sinusitis The Veteran was previously denied service connection for sinusitis in a July 1972 rating decision. The basis for this denial was that there was no evidence of a chronic condition in service. The Veteran did not appeal this decision and therefore it is final. Since that decision, additional evidence has been received, including updated VA medical records as well as a January 2017 VA examination. This evidence is new because it was not part of the record at the time of the July 1972 rating decision. Further, this evidence is also material because it discusses the Veteran’s current claimed sinus issues. As new and material evidence has been received, the claim is reopened.   Service Connection Sinusitis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran underwent a VA examination in January 2017 in order to determine if the Veteran had a diagnosis of sinusitis that was at least as likely as not incurred or caused by his active duty service. This examiner stated that the Veteran’s service treatment records show no evidence of ongoing sinus conditions or trauma. Further, post-service medical records show no evidence of ongoing treatment for any sinus condition. Therefore, the examiner found that it is less likely than not that the Veteran’s current rhinitis is related to a singular episode of sinusitis in service. Lastly, the Veteran’s most recent VA treatment records show no current diagnosis of sinusitis. As no underlying disability has been clinically diagnosed during the appeal period or proximate thereto, the preponderance of the evidence is against the claim for service connection for tuberculosis and the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Back disability The Veteran claims that he sustained a back injury while in service as a result of a fall during physical training. Currently, the Veteran’s medical records show a diagnosis of degenerative disc disease, however the records are silent as to if there is any connection to the Veteran’s claimed in-service back injury. Remand is required for these issues to afford the Veteran a VA examination. As the evidence shows that the Veteran has current back disability, and the Veteran’s reports of experiencing the onset on this back pain in service, a VA examination is necessary to determine the relationship, if any, between the in-service treatment and the current disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Schedule a VA examination to determine the etiology of the Veteran’s back disability. All indicates tests and studies should be performed. After reviewing the file, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability is related to the Veteran’s military service. The rationale for the opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.