Citation Nr: 21000842 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 20-04 323A DATE: January 6, 2021 ORDER New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a lumbar spine disability. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In a February 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a lumbar spine disability; the Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of the decision. 2. Evidence received since the February 2016 decision raises a reasonable possibility of substantiating the service connection claim for a lumbar spine disability. CONCLUSIONS OF LAW 1. The February 2016 rating decision denying entitlement to service connection for a lumbar spine disability is final. 38 U.S.C. § 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1996 to June 1999. The Board notes that after the claim on appeal was denied in a November 2018 rating decision, the Veteran submitted a Notice of Disagreement in the legacy system. He subsequently submitted a Supplemental Claim in the modernized review system in August 2019. He was informed in a November 2019 letter that his claim had not been properly withdrawn from the legacy system and as such would continue to be reviewed within the legacy system. Accordingly, the Board will proceed to consider the claim in the legacy system. The Veteran initially claimed service connection for a lower back/spine disability. He has since been diagnosed with degenerative arthritis of the spine with lumbosacral strain. The Board has recharacterized the claim as listed above to encompass all relevant diagnoses of the lumbar spine. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a lumbar spine disability. Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a final matter before turning to the specific facts of the Veteran’s case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. In the instant case, no new and material evidence was submitted within the appeal period. Accordingly, 38 C.F.R. § 3.156(b) is not applicable. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran’s claim for service connection for a lumbar spine disability was denied in a February 2016 rating decision which found that although there were relevant notations in the service treatment records (STRs), there was no evidence of a currently-diagnosed disability. The Veteran did not timely appeal and the decision is final. 38 C.F.R. § 3.109. In June 2018, he sought to reopen the claim and a November 2018 rating decision determined there was no new and material evidence sufficient to warrant reopening. The Veteran timely appealed. Evidence of record at the time of the February 2016 decision included the Veteran’s STRs, military personnel records, and lay statements. His STRs included an October 1996 service entrance examination and report of medical history which reflected a normal spine and no complaints of recurrent back pain. In December 1996 and August 1998 reports of medical history, the Veteran denied recurrent back pain or back injury. In an April 1999 record, he complained of twisting his back three weeks previously and of reinjuring it the night before while pulling overhead cables. His back pain was located in the mid-lower back L4-L5 region. Upon examination, there was no discoloration, edema, deformities, point tenderness, or spasms. Flexion was to 70 degrees, extension was to 30 degrees, and rotation was to 30 degrees. Strength was 5 out of 5. The impression was mechanical low back pain. He was instructed to perform range of motion exercises and to maintain aerobic activity. He was given Naprosyn for pain. Later in April 1999 at a follow-up appointment, the Veteran reported that he fell off a ladder two feet onto his buttocks three weeks previously. Since then, he had had lower lumbar pain. He had been moving a conduit through a roof overhead and his back began hurting again. He reported that the Naprosyn had not provided any improvement in his symptoms. Flexion was to 90 degrees, extension was to 30 degrees, and rotation was to 45 degrees. The lumbar spine was positive for a paraspinal spasm. The impression was lower lumbar pain/muscle spasm. The Veteran was prescribed Flexeril, ice, and a physical therapy referral for back school. He was prohibited from lifting more than 10 pounds and limited from physical training for 6 weeks. His June 1999 separation examination reflected a normal spine evaluation. On a report of medical history, the Veteran endorsed recurrent back pain or back injury. The examining clinician wrote that this referred to low back pain that improved with rest. The Veteran was now able to do physical training with weight-lifting. The clinician stated that the condition was not considered disabling. In a June 2015 lay statement, the Veteran reported that he was injured during training while stationed in Guam. He noted that the problems with his back had progressed over the years. He stated that he suffered from constant pain, sometimes with complete immobilization. He reported that he had seen multiple specialists recently and it had been determined that surgery would be necessary in the near future. As noted above, the February 2016 decision denied service connection based on a lack of a current disability. The Veteran did not appeal and it is final. Evidence added to the record since the February 2016 rating decision included VA treatment records, a VA examination, a private x-ray report, and lay statements. VA treatment records from August 2018 reflected a report of chronic low back pain. Clinicians stated that the Veteran had mild lumbar spinal tenderness managed by exercises and over-the-counter medication as needed. A VA examination conducted in August 2018 included diagnoses of lumbosacral strain and degenerative arthritis. The Veteran reported to the examiner that while stationed in Guam, he was working construction and fell off of a step while carrying a large drill. When he woke up the following morning, he could hardly move. He went to an on-base medical clinic and was given ibuprofen and Flexeril and 3 days off. No x-rays were done. He stated that subsequently, his back pain had gotten worse. His back went out completely in 2004 for about a week. This kept happening about every 3 years, then every 2 years, and now he had constant pain. The examiner listed the relevant notations in the STRs and described chart notes dated October 2012 from a Dr. Dodd which stated, “according to the patient, he had a back injury in 2010 in an automobile accident. The pain has waxed and waned over the last 2 years and typically has been able to work through it. However, this time it does not seem to be improving. He has seen a chiropractor, Dr. Tack,…didn’t help.” An MRI conducted at the time revealed degenerative disease predominating at L4-L5 and L5-S1 with encroachment upon the neural foramina at those levels. At L5-S1, there appeared to be high signal intensity in the posterior annulus suggesting an annular tear. The disc appeared more prominent at L4-L5 on the left. The examiner determined that the claimed condition was less likely than not related to active service. In support, he stated that the Veteran was treated twice for low back pain in service and that at separation, it was noted that the pain had improved, and he was able to do physical training. On examination, he had some loss of range of motion, pain with motion, and objective signs of lumbar radiculopathy. The examiner concluded that the 2010 lumbar injury was more likely the cause of the Veteran’s current lumbar spine condition than any in-service injury. The Veteran subsequently submitted a November 2010 private x-ray report from Muhlenberg Community Hospital which revealed no acute fractures or subluxations; an old avulsion fracture at the anterior inferior aspect of the L4 vertebral body; normal vertebral body heights; slight narrowing of the intervertebral disc space between L5-S1; intact pedicles and transverse and posterior spinous processes; and normal sacrum and sacroiliac joints. Another lay statement was submitted in November 2019 which described the Veteran’s in-service back injury. He stated that after discharge, he had frequent bouts of back pain. Then, in 2010, he was in an automobile accident. He stated that the accident re-aggravated his old avulsion fracture. He noted in his February 2020 Substantive Appeal that after service, his back went out regularly. However, he did not have insurance, so he did not seek treatment. Based on the foregoing, the Board finds that new and material evidence has been added to the record since the February 2016 decision. That decision found that there was no currently-diagnosed disability. Medical evidence added to the record since then demonstrated that the Veteran has a lumbosacral strain and lumbar degenerative arthritis. Additionally, he submitted a lumbar x-ray which provided evidence of an old fracture in the L4 region, the same region of the spine that was injured in service. The Board finds that this additional evidence relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection. Accordingly, new and material evidence has been received and the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Board finds that additional development is needed before a decision may be rendered on the claim. The August 2018 VA examiner discussed relevant medical records that are not currently in the claims file. As such, an attempt to obtain those records, and any other outstanding pertinent records of treatment, should be made. Such records include the October 2012 chart notes from Dr. Dodd and MRI report, chiropractic records from Dr. Tack, any other records of treatment from Muhlenberg Community Hospital, updated VA treatment records, and any other relevant records identified by the Veteran. Thereafter, a new VA opinion should be obtained which considers all relevant evidence of record, specifically to include the November 2010 x-ray demonstrating an old avulsion fracture at the anterior inferior aspect of the L4 vertebral body. The clinician should determine whether such findings are consistent with the lumbar symptomology in the STRs and the Veteran’s lay statements regarding his in-service injuries and post-service experiences. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and provide a release for any relevant records of post-service medical care he has received or, alternatively, to submit the records himself, specifically to include the October 2012 records and MRI from Dr. Dodd, chiropractic records from Dr. Tack, and any additional records from Muhlenberg Community Hospital. If he provides a release, assist him in obtaining the records and associate them with the claims file. If any of the records sought are unavailable, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain any relevant and outstanding VA treatment records, specifically to include records since January 2020, and associate them with the claims file. 3. Obtain an addendum medical opinion from an appropriate VA clinician regarding the nature and etiology of the Veteran’s lumbar spine disability. The need for an additional examination is left to the discretion of the clinician. Following a review of the claims file, the clinician should address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s lumbar spine disability was incurred in, caused by, or otherwise related to service, specifically to include the April 1999 notations. (b.) The examiner should consider all relevant medical and lay evidence of record and should specifically address the November 2010 radiographic findings of an old avulsion fracture at the anterior inferior aspect of the L4 vertebral body. The examiner should discuss whether the in-service symptoms are consistent with an avulsion fracture at the anterior inferior aspect of the L4 vertebral body. (c.) A complete rationale for any opinions rendered should be provided. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why this is so. Any opinion should specifically address the April 1999 in-service symptoms, November 2010 x-ray findings, August 2018 VA examination and opinion, and the Veteran’s lay statements describing his in-service injuries and post-service experiences. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.