Citation Nr: 20031955 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 18-07 717 DATE: May 6, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active service from August 2002 to August 2006. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for low back pain. The Veteran’s notice of disagreement (NOD) was received in April 2015. The RO issued the statement of the case (SOC) in December 2017, and the Veteran’s VA Form 9, substantive appeal was received in February 2018. In January 2020, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge (VLJ) at the Board’s office in Washington, D.C. A transcript of the hearing is of record. By way of history, the claim was first denied in a January 2012 rating decision. Because the Veteran did not appeal the decision, the decision became final. When a claim becomes final, new and material evidence is required to reopen the claim. See 38 U.S.C. § § 7105 (c); 38 U.S.C. § 5108. However, under 38 C.F.R. § 3.156 (c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Therefore, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is reconsidered on a de novo basis. In this case, service treatment records (STRs), reflecting in-service complaints of back pain and a notation of a lumbar strain were added to the file after the January 2012 rating decision. Therefore, 38 C.F.R. § 3.156(c) applies, and the claim of service connection for a low back disability is reconsidered, rather than reopened. Entitlement to service connection for low back pain The Veteran seeks service connection for a low back disability. Specifically, he reports that he injured his back while lifting and carrying heavy steel chains on a daily basis for approximately two years during service, and that he has experienced lower back pain ever since. See Correspondence dated April 2015. Initially, the Veteran has a current diagnosis of a lumbosacral strain. See December 2017 VA Examination Disability Benefits Questionnaire (DBQ); February 2019 VA Examination DBQ. STRs show reports of back pain, two days in duration, in October 2005. At a separation examination in June 2006, the Veteran reported recurrent back pain, at least three times per month. See Report of Medical History dated June 2006. The Veteran was diagnosed with back pain/strain based on complaints of low back pain and a finding of no numbness, weakness, or tingling. Post service, the Veteran was afforded VA examinations for the low back in December 2017 and February 2019. The December 2017 VA examiner opined that the Veteran’s low back condition was not related to service. In so opining, the examiner acknowledged the June 2006 complaint of low back pain prior to discharge, and noted that upon examination, the Veteran exhibited decreased range of motion with pain in the mid-back region, moderate in severity. However, the examiner found “no subsequent treatment or medical care to establish chronicity of care in service.” The February 2019 VA examiner opined that the low back pain was less likely than not related to service. The examiner acknowledged the June 2006 complaint of recurrent back pain and June 2006 clinician’s note indicating low back pain and diagnosis of back pain/strain. The examiner found that “after discharge from the service, there are no records of complaints for further issues with the Veteran’s back.” Accordingly, the examiner opined that there was a “lack of continuity of care to support that the complaints in service are related to the diagnosed strain.” Since those two VA examinations, additional pertinent evidence has been associated with the claims file including medical treatment records, buddy statements, and the Veteran’s January 2020 Board testimony. Several buddy statements report that the Veteran exhibited back pain from shortly after he left service to the present. A buddy submitted by the Veteran’s mother and received in December 2017 states that the Veteran first complained of back aches and pain during service, and that the pain has significantly worsened to the point that he has difficulty getting out of bed. A buddy statement submitted by the Veteran’s work supervisor, received in December 2017, reflects that the Veteran has complained about back pain since 2006, and that his back pain continues to significantly hamper his ability to perform the tasks required of his job. A buddy statement received in December 2017 from the Veteran’s domestic partner indicates that the Veteran complained of back pain for the entire twelve years that she had known him. Three additional buddy statements were received in January 2020 from individuals who worked with or supervised the Veteran between 2006 and 2016. Each individual reported that throughout the Veteran consistently was unable to perform tasks as a result of his back problems, and that the Veteran would often arrive for work with back pain that would cause him to have to leave his scheduled shifts early. At the Veteran’s January 2020 Board Hearing, the Veteran reported that after he injured his back in service, he felt low back pain several times per month. See Board hearing transcript, p. 4. In January 2020, the Veteran submitted private medical treatment records from January 2014 through September 2018 reflecting complaints of back pain since service. See Patient First records received January 2020. At a January 2014 VA medical appointment, the Veteran complained of low back pain that began several years prior and had recently worsened. Id. At an August 2015 primary care initial evaluation, the Veteran reported experiencing back pain since active duty. At a July 2018 consult, the Veteran complained of chronic low back pain. Id. VA treatment records associated with the file in March 2020 reflect consistent complaints of chronic low back pain, reportedly since service. See, e.g. VA treatment records from August 2015 through September 2018. Additionally, a Surgery Consult note dated November 2017 shows that the Veteran reported a 10-year history of low back pain. The Veteran underwent a low back MRI in July 2017, and was diagnosed with chronic mechanical low back pain. Id. However, the December 2017 and February 2019 VA examiners both provided negative nexus opinions based on their own findings that there were no medical records showing a chronicity of care from the time that the Veteran left service. However, those opinions were not formed in consideration of the evidence since added to the record, including (i) private medical records and VA medical records reflecting the Veteran’s history of care for low back pain, (ii) the Veteran’s January 2020 Board hearing testimony, and (iii) buddy statements regarding the Veteran’s low back symptoms since as early as 2006. Accordingly, a new examination which addresses the new evidence, including the lay statements regarding continuity of symptoms since service, is necessary prior to deciding the claim. See 38 U.S.C. § 5103 (d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical examiner to determine the nature and etiology of any low back disability. The claims file must be made available to and reviewed by the examiner, and the examiner should indicate that the entire file was reviewed. Specifically, the examiner must review the STRs indicating in-service complaints of low back pain in October 2005; the June 2006 separation examination records reflecting complaints of low back pain; the buddy statements; and the Veteran’s January 2020 Board hearing transcript. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that any low back disability is related to service, to include the Veteran’s in-service report of low back pain. All opinions formed must be supported by adequate rationale. Further, any negative opinion as to a nexus between the Veteran’s in-service complaints of low back pain and a current low back disability must include an explanation as to why the numerous post-service treatment records; buddy statements; and January 2020 Board hearing testimony do not reflect a continuity of symptoms that began in service to include the documented complaint of low back pain in October 2005. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.