Citation Nr: 20007595 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-07 935 DATE: January 30, 2020 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for mechanical low back disability is granted. REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected disability, is remanded. Entitlement to a compensable rating for right knee patellofemoral syndrome, prior to November 25, 2013, is remanded. Entitlement to a compensable rating for left knee patellofemoral syndrome, prior to November 25, 2013, is remanded. Entitlement to a rating in excess of 10 percent for bilateral knee degenerative arthritis, beginning November 25, 2013, is remanded. FINDINGS OF FACT 1. In a February 1998 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a mechanical low back disability; the Veteran did not file a timely appeal to that decision or submit new and material evidence during the appeal period. 2. Evidence associated with the record since the February 1998 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a mechanical low back disability. CONCLUSION OF LAW New and material evidence has been received and the claim seeking service connection for a low back disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from March 1995 to December 1997. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2019, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing was prepared and added to the file. Claim to Reopen If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a February 1998 rating decision, the RO denied the Veteran’s claim of service connection for a mechanical low back pain finding no current disability and no relationship to active service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1997). The evidence received since the February 1998 rating decision, including various VA medical records, private medical records, VA examinations, and relevant lay statements, is both new and material to the claim. See 38 C.F.R. § 3.156. In this regard, this evidence is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim as it shows a current low back disability. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection for a Lower Back Disability At an August 2013 VA examination, an examiner reported that the Veteran experienced mechanical low back pain and opined that it was less likely than not related to active service. In reaching this conclusion, the examiner explained that the Veteran had new onset of mild mechanical low back pain towards the end of military service, in 1996, and there were not post-service records showing ongoing back problems for months or even years after military service. However, the Board notes the Veteran dates the onset of his back pain to 1996, reported recurrent back pain in October 1997 shortly before his discharge, and filed a claim for service connection for back pain in February 1998. These statements suggest that the Veteran’s back pain was not only present in 1996, but still present in late 1997 and possibly 1998. These facts were not adequately considered by the examiner in August 2013. Therefore, an additional examination is necessary. The Board further notes that an August 1996 medical assessment includes the Veteran’s report that he had not sought treatment for his back because his doctor told him his flat feet will cause that to happen. Ratings for Right and Left Knee Disabilities In August 2013, the Veteran was afforded a VA examination to access the severity of his service-connected right and left knee disabilities. A review of the record reflects that after August 2013 the Veteran was treated numerous times for his right and left knee disabilities, and at his October 2019 hearing before the Board the Veteran essentially described a worsening of his knees since 2013. As there is a suggestion of worsening of the knee disabilities, an additional examination is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his low back, and right and left knee claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) any current lower back disability had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner should discuss the significance of the Veteran’s report of recurrent back pain in October 1997, shortly before separation from service and more than a year after he first reported back pain, as well as his more recent reports that his back pain onset in 1996. The examiner should also offer an opinion as to whether the Veteran has a current low back disability that was (a) caused, or (b) aggravated (worsened beyond natural progression) by his service-connected pes planus or knee disabilities. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA knee examination to determine the current symptoms, level of severity, and functional impairment associated with his left and right knee disabilities. The claims file should be reviewed by the examiner. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell 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.