Citation Nr: 20007540 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-00 173 DATE: January 29, 2020 ORDER The previously denied claim for service connection for a back disability is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. By a decision entered in April 1992, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a back disability; the Veteran was advised of the RO’s decision and of her appellate rights. 2. The Veteran did not initiate an appeal of the RO’s April 1992 decision during the one-year period following the mailing of notice of that decision; nor was any new evidence received within a year. 3. New evidence received since the time of the RO’s April 1992 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a back disability and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s April 1992 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from April 1979 to January 1992. She also had service in the United States Army Reserve, to include a period of active duty for training from January 1979 to March 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision issued by a VARO. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a back disability Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A previously and finally denied claim for service connection can be reopened and considered on the merits only if new and material evidence has been received since the last final denial of the claim. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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. 38 C.F.R. § 3.156(a). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The presentation of new arguments based on evidence previously of record does not constitute the submission of new evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). Service connection for a back disability was denied in an April 1992 rating decision. The RO determined that the evidence of record did not demonstrate a current diagnosis of a low back disability. The Veteran was notified of the RO’s decision, and of her appellate rights, and did not appeal the decision within one year. Nor was any new evidence received within that time. As a result, the April 1992 decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2018). Since that final decision, new and material evidence has been received. In August 2017, the Veteran was diagnosed with a lumbosacral strain. This evidence relates to a previously unestablished element of the Veteran’s claim and raises a reasonable possibility of substantiating it. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability). As such, the claim is reopened. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford her every possible consideration. Service connection for a low back disability is remanded. The Veteran underwent VA examinations of her back in August 2017 and August 2018. Neither of the resulting reports is adequate for purposes of adjudicating the Veteran’s claim. The August 2017 VA examiner diagnosed the Veteran with a back disability (lumbosacral strain), but found that she could not link the Veteran’s disability to service without resort to speculation. In so doing, the examiner noted that the Veteran had been seen for back pain in service in 1991 and 1992. However, the Veteran’s service treatment records reveal that she was seen for complaints of back pain on several other occasions, to include in September 1986, June 1987, July 1987, August 1987, March 1988, July 1989, August 1989, and July 1990. As such, it appears that the examiner’s opinion may have been based on an incomplete understanding of the Veteran’s history. In addition, the August 2018 examiner did not provide an etiological opinion regarding the Veteran’s back disability. Another examination is warranted. The Board also notes that the record may not contain the Veteran’s complete service treatment records. Specifically, it does not appear as that the Veteran’s service entrance examination has been associated with the record. It is not entirely clear whether the report does not exist, or the records obtained from the service department are incomplete. This needs to be explored. Updated records of VA treatment should also be procured. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession).  This matter is REMANDED for the following action: 1. Request from all appropriate sources a copy of any additional service records that may exist for the Veteran. Specifically, the Veteran’s entrance examination should be sought. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and her representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of her low back. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a low back disability, if so, whether such disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner should discuss the Veteran’s service treatment records, which document complaints of back pain, to include in September 1986, June 1987, July 1987, August 1987, March 1988, July 1989, August 1989, July 1990, September 1990, and March 1991; as well as her Report of Medical History at separation in which she indicated that she had “recurrent back pain.” A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.