Citation Nr: 20037560 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-54 060 DATE: June 2, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for back pain, is reopened. REMANDED Entitlement to service connection for lower back pain condition is remanded. FINDINGS OF FACT 1. In a November 2013 rating decision, the AOJ denied service connection for back pain; the decision became final. 2. Evidence added to the record since the November 2013 rating decision relates to unestablished facts and raise a reasonable possibility of substantiating the claim for service connection for lower back pain condition. CONCLUSION OF LAW New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for lower back pain condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1981. The Veteran testified before the undersigned at an April 2020 Board hearing. A transcript is of record. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Back pain condition The claim of entitlement to service connection for back pain was previously denied in a November 2013 rating decision. In the November 2013 rating decision, the AOJ denied service connection for back pain because the condition neither incurred in nor was caused by service. Thereafter, the Veteran filed a December 2013 notice of disagreement (NOD) with the November 2013 rating decision and an August 2014 statement of the case (SOC) was issued on the matter, but the Veteran did not submit a timely VA Form-9, substantive appeal. Because the Veteran did not perfect an appeal stemming from the November 2013 rating decision and VA did not receive new and material evidence prior to expiration of the appeal period, the November 2013 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.201, 20.302, 20.1103. The Veteran contends that the evidence warrants service connection for lower back pain condition. The question for the Board is whether new and material evidence has been submitted to reopen the previously denied claim for service connection for lower back pain. The Board concludes that new and material evidence has been submitted to reopen the claim. Evidence submitted since the prior final denial includes testimony at the April 2020 Board hearing. Thus, the petition to reopen the previously denied claim for service connection for back pain is granted. The issue is addressed in the remand below. REASONS FOR REMAND Lower back pain condition The Veteran has reported low back pain and at his April 2020 Board hearing, the Veteran testified to being diagnosed with herniated discs and degenerative disc disease. See April 2020 Board hearing transcript at 19. The Veteran’s military personnel records indicate that his military occupational specialty (MOS) was the civilian equivalent of an aircraft mechanic and repairman. See Form DD-214. At his April 2020 Board hearing, the Veteran testified that he injured his back while serving in Vietnam, working on helicopters and jumping out of helicopters and he was in at least one major helicopter accident. See April 2020 Board hearing transcript at 2. He testified that the helicopter accident occurred as a result of a tail rotator failure and they hit a dike and the helicopter “rolled” up. Id. at 3. He testified that he jumped out of helicopters to rice patties. Id. at 3. He testified that while working in helicopters he would climb ladders into the helicopters but jumped out of it onto the ground that he felt in his back. Id. at 4. To date, the Veteran has not been afforded a VA examination for his claimed back disability and should be scheduled on remand. The matter is REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for VA back examination to determine the nature and etiology of the Veteran’s claimed back condition. After reviewing the claims file, the examiner should provide an opinion on the following questions: (a) Identify any current low back disability, to include pain and the Veteran’s reported herniated discs and degenerative disc disease. A complete explanation should be provided. (b) Is it at least as likely as not (a 50 percent probability or greater) that any current low back disability, to include low back pain is etiologically related to service. Please explain why or why not. The examiner should consider the Veteran’s reports of injuring his back in service from working on helicopters and jumping out of helicopters, to including helicopter accident, jumping from helicopters to rice patties, and jumping out of helicopters onto the ground while performing maintenance on them. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.