Citation Nr: 20021570 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 20-08 757 DATE: March 26, 2020 ORDER New and material having been received, reopening of the claim of entitlement to service connection for a lumbar spine disorder is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right leg disorder, claimed as secondary to lumbar spine disorder, is remanded. Entitlement to service connection for a left leg disorder, claimed as secondary to lumbar spine disorder, is remanded. FINDINGS OF FACT 1. Entitlement to service connection for a lumbar spine disorder was last denied by the RO in a January 1976 rating decision; the Veteran did not initiate an appeal or submit new and material evidence within one year. 2. Evidence added to record since the January 1976 rating decision is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim of service connection for a lumbar spine disorder. CONCLUSIONS OF LAW 1. The January 1976 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. 2. Evidence received since the January 1976 rating decision is new and material; and the claim of service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to June 1970. This case comes before the Board of Veterans' Appeals (the Board) from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As noted above, this claim was originally denied by the RO in a January 1976 rating decision. Before the Board may reopen any previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been presented sufficient to reopen a prior final decision. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). Accordingly, the issue has been recharacterized as noted on the cover page of this decision. The Board acknowledges that in the October 2019 VA Form 21-0958, the Veteran challenged the issues of “effective date” and “evaluation of disability” in addition to the denial of service connection for the lumbar spine and bilateral leg disorders. However, the Board is precluded from reviewing freestanding claims of the downstream issues of effective date and disability evaluation without the underlying claim of service connection having been established. Thus, the issues properly on appeal are those claims listed on the cover page of this decision. New and Material The Veteran seeks to reopen his previously denied claim of entitlement to service connection for a low back disorder which was last decided by a January 1976 rating decision which was not timely appealed and is now final. Generally, a claim which has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In the January 1976 rating decision, service connection for a low back disorder was denied due to the Veteran’s current condition having been found to be a function of a developmental abnormality, namely obesity. The evidence received since January 1976 and relevant to reopening the claim includes a February 1979 statement from the Veteran’s employer indicating that within a year of discharge in “early 1971” the Veteran was treated by a physician for his back pain. As a result, the Board finds that this evidence is new and material, because it is neither cumulative nor redundant, relates to an unestablished fact, and raises the possibility of substantiating the claim on a presumptive basis. Accordingly, the claim of service connection for a low back disorder is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder is remanded. 2. Entitlement to service connection for a right leg disorder is remanded. 3. Entitlement to service connection for a left leg disorder is remanded. The Veteran has not been afforded a VA examination, to include consideration of the intertwined issues of entitlement for bilateral leg pain. The Board finds the low threshold for warranting further development for a medical opinion has been met. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran’s service medical records have largely not been reviewed as only “partial service treatment records to include Reports of Medical Examinations dated July 24, 1967 and July 22, 1968” have been associated with the claims file. See i.e. January 2020 Statement of the Case. In these circumstances, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). Thus, the combination of the Veteran's contention that he has suffered a low back disorder since service and the lack of service treatment records meets the low bar set by McLendon and the Board finds that a remand for a VA examination and opinion to address the nature and etiology of any low back disorder is warranted. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following actions: 1. Additional attempts to procure any and all outstanding service medical records should be made, with all unsuccessful attempts fully documented and associated with the claims file. 2. Contact the Veteran and assist him with the procurement of any relevant private treatment records not currently associated with the claims file, with documentation of all unsuccessful attempts. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of any current low back disorder, including any related bilateral lower extremity disorders. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed low back disorder and associated leg pain (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, (4) related to an in-service injury, event, or disease. The examiner is asked to provide reasons for each opinion provided, whether favorable or unfavorable, citing to the lay evidence, as well as, other evidence in the record. These reasons should include a discussion of the Veteran's lay statements, including his claim that his back pain began with a 1969/1970 lifting accident, analysis of the 1975 VA medical examination with finding of “obesity” as the underlying cause of the injury, and discussion of the 1973 trailer lifting injury. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.