Citation Nr: 20008317 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-08 080 DATE: January 31, 2020 ORDER The request to reopen the claim for entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In a July 1999 rating decision, the Veteran was denied entitlement to service connection for low back strain. The basis for the denial was, inter alia, a disability was not found on the last examination. The Veteran was informed of the decision and did not appeal nor was new and material evidence received within a year of the decision. 2. In March 2013, the Veteran received a VA examination, which noted diagnoses pertaining to the thoracolumbar spine (back), including degenerative disc disease (DDD), lumbar, left sacral iliac joint disorder, and lumbar spondylosis. This evidence is relevant and probative, and it cures a prior evidentiary defect; namely, the lack of a disability on examination. CONCLUSIONS OF LAW 1. The July 1999 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. Evidence received since the July 1999 rating decision is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1994 to October 1998. In January 2020, the Veteran testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. The Board notes that there is an acknowledgment of a FOIA request on the record. See VA letter, December 2019. This request was discussed at the hearing, and the Veteran and his representative indicated that presently they have the documents that they need, and that the Board may proceed with the appeal. New and Material Evidence The request to reopen the claim for entitlement to service connection for a back disability is granted. For the reasons addressed in the Findings of Fact and Conclusions of Law, the request to reopen the issue on appeal is granted. REASONS FOR REMAND The issue has been expanded and recharacterized pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for a back disability is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, based on testimony at the January 2020 videoconference hearing, the Board finds that there are outstanding private treatment records to be obtained and associated with the claim file. Further, the Board finds that a new VA examination is needed in order to address the etiology of the claimed disability on appeal. The Veteran was afforded a VA examination in March 2013, but the examiner stated that “[t]here was just one mention” of back pain in the Veteran’s service treatment records. However, at the January 2020 videoconference hearing, the Veteran’s representative cited multiple examples of back pain in service. Accordingly, the Board requests a new examination that more completely addresses the Veteran’s complaints of back pain in service. Therefore, the matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to address the etiology of the claimed disability on appeal. For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service. The examiner is asked to specifically address the complaints of back pain identified by the Veteran and his representative in his service treatment records. The examiner is also asked to address evidence of a motor vehicle accident in 2005 in which the Veteran’s back was impacted. See VA examination, March 2013. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.