Citation Nr: 20046510 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 18-46 080A DATE: July 13, 2020 ORDER New and material evidence having been received, the claim for entitlement to service connection for headaches is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for dorsal and lumbar spine pain is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for degenerative disc of the lower spine is remanded. FINDINGS OF FACT 1. In a July 1974 rating decision, the RO denied entitlement to service connection for lumbar spine pain and viremia with meningismus and headaches. The Veteran was provided with notice of the rating decision that same month. The Veteran did not perfect an appeal of those claims and new and material evidence was not received within one year of the July 1974 rating decision. 2. A February 2010 rating decision denied reopening the claim for entitlement to service connection for a lumbar spine disorder. Notice of that decision was provided to the Veteran that same month. The Veteran did not appeal that rating decision or submit new and material evidence within the one-year appeal period of that decision. 3. Evidence received since the July 1974 rating decision is not cumulative or redundant of the evidence of record at the time of that rating decision and relates to an unestablished fact necessary to establish the claim for entitlement to service connection for a headache disorder. 4. Evidence received since the February 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that rating decision and relates to an unestablished fact necessary to establish the claim for entitlement to service connection for a lumbar spine disorder. CONCLUSIONS OF LAW 1. The July 1974 and February 2010 rating decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the July 1974 rating decision is new and material, and therefore the claim for entitlement to service connection for a headache disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. Evidence received since the February 2010 rating decision is new and material, and therefore the claim for entitlement to service connection for a lumbar spine disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1973 to January 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Since the RO last considered the Veteran’s claims in October 2018, the Veteran submitted additional pertinent evidence. In July 2019, the Veteran submitted a waiver of RO review of that evidence. See 38 C.F.R. § 20.1304. (The issues of entitlement to compensation benefits under 38 U.S.C. § 1151 for reduced field of vision for the left eye, worsening of degenerative disc disease of the lumbar spine, and an acquired psychiatric disorder are addressed in a separate decision.) 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a headache disorder 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a lumbar spine disorder In a July 1974 rating decision, the AOJ denied entitlement to service connection for a headache disorder and a lumbar spine disorder. The Veteran did not appeal the July 1974 rating decision or submit new and material evidence within one year of the July 1974 rating decision. Therefore, that decision is final. The AOJ declined to reopen the Veteran’s claim for entitlement to service connection for a lumbar spine disorder in a February 2010 rating decision. The Veteran did not appeal that rating decision or submit new and material evidence within the one-year appeal period. Therefore, that rating decision is also final. The Board finds that the evidence received since the July 1974 rating decision is new and material to the claim for entitlement to service connection for a headache disorder, and that the evidence received since the February 2010 rating decision is new and material to the claim for entitlement to service connection for a lumbar spine disorder. See 38 C.F.R. § 3.156, 20.302, 20.1103; see also June 2019 Private Nexus Opinion. Accordingly, the claims for entitlement to service connection for a headache disorder and a lumbar spine disorder are reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for a headache disorder is remanded. 2. Entitlement to service connection for a lumbar spine disorder is remanded. As discussed above, the Veteran’s claims for entitlement to service connection for a headache disorder and entitlement to service connection for a lumbar spine disorder are reopened. Since the RO denied reopening of these claims, they are remanded to the RO for adjudication of the merits of the claims. 38 C.F.R. §§ 20.103, 20.201; Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran contends that he suffers from headaches and low back pain as a result of service. Specifically, the Veteran asserts that he contracted viral meningitis while in service that led to the headaches, of which he has suffered from since service. Moreover, he specifically asserts that he endured several spinal injections in service which led to lower back pain since service. Additionally, the record shows a previous diagnosis of “mild left lumbar scoliosis-incidental.” See February 1974 VA Examination. In support of his claims, the Veteran submitted a June 2019 private medical opinion that relates his disabilities to his active duty service. However, it is unclear whether the examiner reviewed and/or had access to the Veteran’s VA records. Moreover, the private medical examiner did not discuss the previous diagnosis of scoliosis. Thus, on remand, the AOJ should obtain a VA examination and medical opinion discussing the nature and etiology of the Veteran’s headaches and lumbar spine disorder. The matters are REMANDED for the following actions: (Continued on the next page)   1. Provide the Veteran with VA examinations by an appropriate physician to determine the existence and etiology of all headache and lumbar spine disorders found. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. The examiner(s) must state all diagnosed back and headache disorders found now or at any time during the appeal period. Based upon a complete review of the evidence of record, the VA examiner(s) must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that any back or headache disorder currently diagnosed or diagnosed during the pendency of the Veteran’s claims was caused or incurred as a result of the Veteran’s active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran’s lay statements regarding in-service and post-service symptomatology, as well as the June 2019 private medical opinion relating the headache and back disorders to the Veteran’s active duty service. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. 2. After completing the above action and any other development deemed warranted, readjudicate the Veteran’s claims, taking into consideration any and all evidence that has been added to the record since the issuance of the October 2018 SSOC. If any benefit on appeal remains denied, the Veteran and his representative must be provided an additional SSOC and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for further appellate review. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jones Council, 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.