Citation Nr: 20032435 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 18-39 203 DATE: May 8, 2020 ORDER 1. The appeal to reopen the service-connection claim for a low back disability is granted. REMANDED 2. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. An unappealed October 2007 rating decision denied the Veteran for service connection for a back disability based essentially on findings that the “scoliosis” for which he was seen in service was actually an acute strain, which resolved without leaving any residual disability (and that a current chronic back disability was not shown); and an unappealed August 2014 rating decision continued the denial, finding that new and material evidence to reopen the claim had not been received. . 3. Evidence received since the August 2014 rating decision, includes a medical provider’s assessment that the Veteran had “back pain” which was characterized as “chronic”; pertains to an unestablished fact necessary to substantiate the claim; and together with evidence previously in the record raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a low back disability may be reopened. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the U.S. Air Force from July 2004 to July 2006. This matter is before the Board of Veteran’s Appeals (Board) on appeal from an October 2017 administrative denial of the Veteran’s request to reopen his claim for service connection for a back disability. As an initial matter, the Board notes that the RO’s October 2017 administrative denial appears to have misconstrued the Veteran’s September 2017 claim to reopen. In the October 2017 denial, the RO informed the Veteran that it would not take further action unless he filed a claim to reopen using VA Form 21-526EZ, or identified a clear and unmistakable error in the August 2014 rating decision that denied his previous request to reopen. In fact, the record shows that he filed a claim to reopen using VA Form 21-526EZ in September 2017. The appeal to reopen a claim of service-connection for a low back disability is granted. If a claimant does not file a timely notice of disagreement in response to an unfavorable rating decision, the decision becomes final and the claim may not be reopened and granted unless new and material evidence is received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). “New” evidence is evidence that was not previously part of the actual record before agency adjudicators. “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. New and material evidence cannot be cumulative or 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). In determining whether new and material evidence has been presented or secured, the credibility of the evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). The requirement that new and material evidence must raise a reasonable possibility of substantiating a claim is a low threshold one, and is intended to enable rather than preclude reopening. Shade v. Shinseki, 24 Vet. App. 110, 117, 121 (2010). An October 2007 rating decision denied the Veteran service connection for a back disability based on findings that the scoliosis for which he was seen in service was actually an acute lumbosacral spine strain, which resolved without residuals (and that a current chronic low back disability was not shown). An August 2014 rating decision continued the denial, finding that new and material evidence to reopen the claim had not been received. He did not appeal either rating decision or submit new and material evidence within the following year, and they, each, became final. 38 U.S.C. § 7105. Considering the basis for the previous denials of service connection for a low back disability, for evidence to be new and material and sufficient to reopen the claim, the evidence would have to show that the Veteran has a current chronic low back disability (that may be etiologically related to his service). The evidence of record at the time of the August 2014 rating decision, included, as here pertinent, the Veteran’s service treatment records which show he was seen for what was then noted to be scoliosis, without residuals thereafter shown, and the report of a June 2007 VA examination (with subsequent addendums), and the opinion that what was noted to be scoliosis in service was actually an acute lumbosacral strain, which resolved (and that a current chronic low back disability was not shown. Evidence received since the August 2014 rating decision includes a medical record showing a that a medical provider (nurse practitioner) had given the Veteran a diagnosis of “low back pain”. described as “chronic.” In his June 2018 notice of disagreement, the Veteran claimed that his back disability had been “chronic since discharge” and that he has “constant pain from this injury since discharge.” Medical evidence received in June 2018 shows that the Veteran told VA treating providers in June 2017 that he had chronic back pain. This evidence of a possibly chronic low back pain disability is new because it was not before the RO at the time of the August 2014 rating decision. It is also material because it relates to an unestablished fact necessary to substantiate this service-connection claim; it tends to show that the Veteran has chronic back pain. In this regard, the Board notes that the Federal Circuit has held that pain, supported by evidence of functional limitation, is sufficient to establish a current disability. See Saunders v. Wilkie, 886 F.3d 1356, 1369 (Fed. Cir. 2018) (“pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.”) Coupled with evidence previously in the record showing that the Veteran was seen for back complaints in service, which a VA provider opined reflected an acute injury therein, and given that credibility of new evidence is presumed for the purpose of determining whether reopening is warranted, and the low threshold for reopening, the evidence raises a reasonable possibility of substantiating the Veteran’s service-connection claim. The Board therefore finds that new and material evidence has been received, and that the claim of service connection for a low back disability may be reopened. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for a back disability. The Board finds that the evidence of record is inadequate to adjudicate on the merits the claim of service connection for a low back disability. The record contains reports of two VA back examinations, in June 2007 and May 2018, but neither adequately addresses the medical questions presented in this matter. At the June 2007 VA back examination, the Veteran reported low back pain that began while he was lifting weights in August 2005 and lasted for one to two months. He reported a recurrence of back pain and tightness in December 2005, as well as lower extremity swelling that developed over a period of weeks. A circulatory disability was diagnosed, and an additional diagnosis of “acute musculoskeletal strain of the [lumbosacral] spine, resolved” was noted; i.e., a current chronic low back disability was not found. At the May 2018 VA back examination, the Veteran again reported that he had injured his back while lifting weights in August 2005. He also complained of progressively worsening back pain and tightness during the 18 months preceding the examination, and radiation of pain from his left sacroiliac region to his left knee. On examination, straight leg testing was positive bilaterally, and the Veteran exhibited symptoms of left leg radiculopathy. The examiner opined that the Veteran had muscle spasm and guarding of the thoracolumbar spine “resulting in an abnormal gait or abnormal spine contour.” In the portion of the form that requested an explanation supporting that opinion, however, the examiner left the form blank. In a separate form, the May 2018 VA examiner provided a negative nexus opinion. He explained that the Veteran’s back disability was “acute only” and lacked “chronicity.” Although he found clinical signs of radiculopathy on examination, he stated that the record did not otherwise show radicular symptoms. The examiner also noted that a 2013 X-ray of the Veteran’s lumbar spine was normal. The examiner did not explain why an 18+ month history and the findings of muscle spasm and guarding resulting in abnormal gait or contour did not represent a chronic disability. As noted above, pain of itself, which causes functional impairment (as here with the noted abnormal gait) may constitute a compensable disability. Significantly, the Veteran has asserted that he has had back complaints ever since an injury in service (and his lay statement is evidence that must be considered). The matter is REMANDED for the following: 1. Obtain for the record all outstanding (any not already in the claims file) records of evaluations and treatment the Veteran has received for his low back since service. He must assist in the matter by identifying all private providers (and authorizing VA to secure for the record complete clinical records of such evaluations and treatment from all private providers identified. Specifically secure for the record any pertinent VA treatment records that remain outstanding. Updated to the present. 2. Then, arrange for a spine disability examination of the Veteran to confirm whether he has a chronic back disability, and if so, identify its nature and likely etiology. The Veteran’s claims file must be reviewed by the examiner. On examination and interview of the Veteran, and review of his record, the examiner should: (a) Identify by diagnosis each low back disability found or shown by the record during the pendency of the instant claim. If none is diagnosed, reconcile that conclusion with the lengthy history of back pain (and manifestations muscle spasm that results in abnormal gait) shown in the record. (b) Identify the likely etiology for each low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that the disability is etiologically relayed to the Veteran’s active duty service, and the back complaints for which he was seen therein? (c) If a diagnosed low back disability is determined to be unrelated to the Veteran’s service, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. The rationale must reflect consideration of the Veteran’s lay statements, in particular those including accounts of continuing back symptoms since service. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Lewellen, 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.