Citation Nr: 20031846 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 12-09 703 DATE: May 6, 2020 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a back disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. An unappealed November 1976 rating decision denied service connection for a back disability. 2. The additional evidence received since the November 1976 rating decision relates to previously unestablished facts necessary to substantiate the claim for service connection for a back disability. CONCLUSIONS OF LAW 1. The November 1976 rating decision that denied service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the November 1976 rating decision, and the claim for service connection for a back disability is reopened. 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to March 1967. This current matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Board remanded the claim to accord the Veteran a hearing. Although hearing opportunities were provided to the Veteran on two separate occasions (in October 2014 and December 2016), he did not appear for either proceeding. As the record does not contain further explanation as to why the Veteran failed to report to those two hearings, or asked to reschedule them, the Board deem his hearing request to having been withdrawn. 38 C.F.R. § 20.704(d). In June 2017, the Board denied reopening the Veteran’s claim for service connection for a back disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC/Court). In March 2019, CAVC issued a decision to set aside and remand the matter. In doing so, CAVC determined that the Board failed to provide adequate reasons and bases in its June 2017 decision. Accordingly, this appeal has now returned to the Board. New and Material Evidence – A Back Disability Where a claim has been finally adjudicated, new and material evidence sufficient to reopen the previously denied claim is required. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously received by agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly received evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether the new evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ’s action, the Board must address the question of whether new and material evidence has been presented to reopen a claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In a November 1976 decision, the RO denied service connection for a back disability on the basis that the Veteran’s preexisting back disorder was not aggravated by his military service. In the year following that rating decision, the Veteran did not submit any statements expressing disagreement with the denial of service connection for a back disability, nor did he submit any documents concerning the claim for service connection for a back disability that could be considered new and material evidence. Thus, the November 1976 rating decision became final. 38 C.F.R. § 20.1103. Evidence received since the November 1976 rating decision includes an April 2012 statement from the Veteran that his back condition did not preexist service, a VA examination, and medical treatment records appearing to indicate that his back disability began in the military. As noted above, the credibility of this evidence is presumed. Accordingly, it is found new and material to his claim, as it relates to an unestablished fact necessary to substantiate his claim, namely, that the presumption of soundness is not rebutted and that the Veteran’s disability was incurred during active service. Thus, the Board finds that new and material evidence has been received and that his claim for service connection for a back disability is reopened. REASONS FOR REMAND Service Connection A Back Disability Veterans are presumed sound upon entry into service except for conditions noted upon entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Secretary must rebut the presumption of soundness with “clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon “thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.” 38 C.F.R. § 3.304(b)(1). Based on the evidence of record in the current appeal, the Board finds that the Veteran is entitled to the presumption of soundness. While he indicated that he had previously experienced back problems which may have preexisted his service, such is not sufficient to overcome the presumption of soundness. Significantly, his spine was normal at his January 1966 entrance examination, and most of his service treatment records relate his back pains to an in service incident. Accordingly, the presumption has not been rebutted by clear and unmistakable evidence, and he is entitled to the presumption of soundness. The post-service VA examination conducted in July 2010 resulted in a diagnosis of a back disorder. However, the examiner opined that it was less likely than not related to service as there was no indication of aggravation of a preexisting lumbar condition. As noted above, the Veteran is presumed sound at entrance, and the Board must consider the Veteran’s claim as one for direct service connection and not aggravation. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). As the July 2010 VA examination opinion did not address the question of direct service connection, a new VA examination should be obtained to address the nature, extent, and etiology of his back disability. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of his back disability. The entire claims file, including a copy of this remand, must be made available to, and be reviewed by, the examiner, and such should be indicated on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. After a review of the claims folder, as well as an interview with and an examination of the Veteran, the examiner is asked to: a. Identify/diagnose any back disability that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability or higher) that any diagnosed back disability onset in, or is otherwise related to, the Veteran’s service or any incident therein, to include his reported in-service motorcycle accident in 1966 or 1967 and his in service reports of back pain. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion without resorting to speculation, he or she must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, or to report for a scheduled VA examination, may impact the decision made. 38C.F.R. § 3.655. He has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.