Citation Nr: 20022037 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-41 038A DATE: March 30, 2020 ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for low back disability is reopened. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for depression disorder is are reopened REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression, is remanded. FINDINGS OF FACT 1. In a final January 2012 rating decision, the RO denied the Veteran’s claim for service connection for a low back disability on the basis that new and material evidence had not been submitted; the evidence received since the January 2012 rating decisions is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim. 2. In a final January 2012 rating decision, the RO denied the Veteran’s claim for service connection for depression on the basis that evidence supported this condition pre-existed service and there was no evidence of aggravation during his military service; the evidence received since the January 2012 rating decisions is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2012 rating decision that denied claims for service connection for low back disability and depression is final. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim for service connection for depression. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to May 1983. The Board recognizes that in his November 2015 substantive appeal, the Veteran requested a Board video conference hearing. However, in a March 2020 brief, it appears that the Veteran’s representative implicitly withdrew the hearing requested and asked for the case to be remanded in order to afford the Veteran with VA examinations. As the Board is remanding the case per the representative’s request, there is no prejudice to the Veteran and the Veteran will still have the option to ask for a Board hearing upon return to the Board of his remanded appeal pursuant to Quinn v. Wilkie, No. 17-4555, 2019 U.S. App. Vet. Claims LEXIS 1199 (July 11, 2019). New and material evidence having been received, the Veteran's claims for entitlement to service connection for depression and low back disability are reopened. Generally, a claim that has been denied in an unappealed decision may not thereafter be reopened and allowed, unless new and material evidence is presented or secured. 38 U.S.C. §§ 5108, 7105(c). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO initially denied service connection for the Veteran’s low back disability in an October 2008 rating decision. The RO again denied service connection for a low back disorder in a January 2012 decision finding that new and material evidence had not been submitted. The RO also denied service connection for the Veteran’s depression in that rating decision. Since the January 2012 rating decision became final, private and VA clinical records; and lay statements and arguments in support of the claims has been associated with the record. Medical records show that the Veteran continues to be treated for these disabilities. Further, the Veteran continued to report that he has experienced depression and low back pain since service. Accordingly, the evidence received since the January 2012 rating decision is new and material as it is not redundant of evidence already of record in January 2012, and relates to the unestablished fact of whether the Veteran’s currently diagnosed disabilities may be related to service. See 38 C.F.R. § 3.156(a). As such, the issues of entitlement to service connection for low back disability and depression are reopened. . REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran contends that his low back disability is related to service. The Veteran was afforded a VA examination for his low back disability in July 2011. A diagnosis of degenerative joint disease of the lumbar spine was documented. The examiner opined that it was less likely than not that his low back disability was related to service. The rationale included that his in-service treatment for back pain was likely due to a strained back, which usually heals completely. Post-service, he performed work with heavy lifting and long-distance driving for at least 20 years without apparent difficulties. Therefore, it was inconceivable that his current back condition is related to the back condition he had in-service. The examiner concluded that his current back disability was likely secondary to his prolonged heaving lifting and carrying while working as a civilian. In September 2011, the Veteran’s VA doctor was asked to opine whether the Veteran’s current low back disability is related to his service. In response, his provider opined that his chronic back pain can be due to the heavy lifting activities that he performed in the past. An explanation included an acknowledgment that the Veteran had intermittent back pain since his injury in-service. Here, there is conflicting medical evidence concerning the etiology of the Veteran’s low back disability. The August 2011 VA examiner failed to address the Veteran’s lay statements of continuing back pain since service. While the September 2011 provider considered the Veteran’s lay statements, this opinion was couched in speculative terms. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Moreover, the provider did not consider his post-service occupational heavy lifting and long-distance driving. In light of the above, the Board is unable to make a fully informed decision at this time because no VA examiner has considered both the Veteran’s lay statements concerning a continuity of symptoms and the potential effects of his post-service employment. Entitlement to service connection for depression is remanded. While it was previously determined that the Veteran’s depression preexisted service, depression was not noted on his entrance examination. Rather, his entrance examination indicated that the Veteran had no psychiatric conditions. See April 1977 entrance examination. Although his report of medical history marked “yes” to a history of depression or worry, the examiner documented only worry at times related to family or school. Thus, the Veteran is presumed to have been sound upon entering active service, as a psychiatric condition was not noted at his entrance examination. See 38 C.F.R. § 3.304 (b) (only such conditions as are recorded in examination reports are to be considered as noted). The Veteran has alleged that his depression is related to service. Despite evidence of a current diagnosis, he has not been afforded a VA examination for his depression. The Board is unable to make a fully informed decision at this time because no VA examiner has considered whether the Veteran’s depression is related to service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disorder. The examiner must opine whether it at least as likely as not (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, or (4) related to an in-service injury, event, or disease, including the February 1978 documented incidents of low back pain. The examiner must offer a detailed rationale for any opinion given. In proffering this opinion, the examiner must address the Veteran’s lay statements as well as the September 2011 opinion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must offer a detailed rationale for any opinion given. In proffering this opinion, the examiner must address the Veteran’s lay statements. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.