Citation Nr: 20022091 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-27 982 DATE: March 30, 2020 ORDER The petition to reopen the claim for service connection for degenerative disc disease of the lumbar and lower thoracic spine is granted. REMANDED Entitlement to service connection for degenerative disc disease of the lumbar and lower thoracic spine is remanded. FINDINGS OF FACT 1. The Veteran was denied service connection for degenerative disc disease of the lumbar and lower thoracic spine in a May 2006 rating decision. He did not perfect an appeal during the requisite time period, and the decision became final. 2. Evidence associated with the record since the May 2006 rating decision relates to unestablished facts or raise a reasonable possibility of substantiating the claim for service connection for degenerative disc disease of the lumbar and lower thoracic spine. CONCLUSION OF LAW New and material evidence has been received since the May 2006 rating decision and the claim seeking entitlement to service connection for degenerative disc disease of the lumbar and lower thoracic spine is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1966 to June 1968, including service in the Republic of Vietnam. As a result of his military service, the Veteran received the Combat Infantryman Badge among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in April 2019. A transcript of that hearing has been added to the Veteran’s file. 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). The RO denied the Veteran’s claim of service connection for degenerative disc disease of the lumbar and lower thoracic spine in a May 2006 rating decision, finding that the condition was not related to his military service. While the Veteran appealed this denial, he did not perfect his appeal after a statement of the case was issued in June 2007. As such, that decision became final. See 38 C.F.R. §§ 20.302, 20.1103 (2005). The evidence received since the May 2006 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran underwent a VA examination in July 2015 addressing whether his current condition was related to his military service and testified before the undersigned. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. 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 Veteran contends that he has a current back disability that was caused or aggravated by his military service. In July 2015, the Veteran underwent a VA examination. The examiner stated that the service record shows complaints of back pain in September 1966 but there is no evidence that this was a permanent condition. The Board notes that the service treatment record shows the Veteran’s 1966 report of falling off a truck five years prior with intermittent back pain; the in-service complaints were first thought to be muscle spasms; however, after a normal X-ray in 1966 the impression was “no pathology found.” The VA examiner went on to state that this is bolstered by the fact that there was no complaint of back pain or report of back abnormality on the Veteran’s exit examination in 1969, making it less likely as not that there was any permanent low back condition that developed in service or that there was any permanent aggravation of a low back condition that existed prior to service. During the Veteran’s April 2019 hearing, the Veteran credibly testified that his back continued to hurt when he was stationed in Vietnam due to carrying 60 to 70 pound bags on his back and also that he injured his back during the same in-service incident when he was thrown from a truck and injured his wrist. He testified that he complained about his back but that the medics were more focused on his injured wrist. Further, the Veteran stated that he sought treatment after service but that the clinic that he went to has been closed for over 30 years, so he is unable to obtain those treatment records. In finding there was no permanent condition present during service, the VA examiner did not address the Veteran’s lay testimony that his back continued to hurt during service and that he continued to suffer from pain after service. As such, a new examination is needed to address the Veteran’s lay statements. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for his back disability. 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) that any current disability of the back is related to an in-service injury, event, or disease, to include his complaints of back pain in September 1966 and his credible lay testimony of back pain continuing in service after an accident where he was thrown from a truck and after carrying heavy loads. The Board notes the Veteran also testified that his back pain has continued since service. It is recognized that during service the Veteran reported intermittent back pain since a pre-service accident; however, given the normal pre-induction and induction examinations and reports of medical history, for purposes of this opinion the examiner should consider the Veteran to have been free of any back disability when he entered service. 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. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister 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.