Citation Nr: 21001712 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-25 607 DATE: January 11, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2005 rating decision, the RO denied the Veteran’s petition to reopen his claim of entitlement to service connection for a low back disability. 2. The additional evidence received since that last final decision was not previously submitted to agency decisionmakers, is neither cumulative nor redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. CONCLUSIONS OF LAW 1. The April 2005 rating decision, which denied reopening the service connection claim for a low back disability, is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105 (c); 38 U.S.C. § 20.1103. 2. New and material evidence has since been presented to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board; a transcript of that hearing is of record. The Board additionally notes that, although the RO reopened the claim for service connection for a low back disability in the March 2017 Statement of the Case (SOC), the Board must determine of its own accord whether reopening is warranted before it may address the claim on the merits. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). 1. New and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. The Veteran originally filed a service connection claim for a low back disorder in November 1990. See November 1990 Veteran’s Application for Compensation (VA Form 21-526). A May 1991 rating decision denied the claim, and a letter dated the following month notified the Veteran of the decision and of his appellate rights. See 38 C.F.R. § 19.25. He did not appeal. See 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52 (setting forth requirements and time limits for initiating and perfecting an appeal). Moreover, new and material evidence was not received within one year of that rating decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Accordingly, the May 1991 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(a); 3.160(d); 20.1103. The Veteran attempted to reopen his claim in December 2004, and in an April 2005 decision, the RO declined to reopen the claim. A letter dated in May 2005 notified the Veteran of the decision and of his appellate rights; however, he did not appeal. See 38 C.F.R. §§ 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.25, 19.52. Moreover, new and material evidence was not received within one year of that decision. See 38 C.F.R. § 3.156(b); Young, 22 Vet. App. at 466; see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds). Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claim. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (a); 20.1103. New and material evidence has been received concerning the issue of entitlement to service connection for a low back disorder in the form of the Veteran’s sworn testimony at his September 2020 Board hearing concerning the related in-service events or injuries, as well as the onset and progression of his low back symptomatology during and immediately following his active service. At the time of the April 2005 rating decision, such evidence was not of record. Accordingly, this evidence relates to an unestablished fact necessary to reopen the claim and raises a reasonable possibility of establishing service connection for a low back disability. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010) (noting that the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial, which is a “low threshold”). Therefore, reopening is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The reopened claim of entitlement to service connection for a low back disability must be remanded for further adjudication. Initially, the Board notes that the record reflects that the Veteran may be in receipt of Social Security Administration (SSA) benefits, the award of which is based, at least in part, on his low back disability. See, e.g., January 2017 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) (noting the Veteran’s report that he “got on Social Security Disability” following multiple work-related exacerbations of his low back condition and subsequent low back surgeries). A review of the claims file does not show that VA attempted to obtain any of the Veteran’s SSA records as part of his claim. As the record reflects SSA records that may be outstanding and may be pertinent to the Veteran’s claim, the Board must remand the claim in order to obtain those records. See 38 C.F.R. § 3.159(c)(2) and (3); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (as long as a reasonable possibility exists that the SSA records are relevant to a Veteran’s claim, VA is required to assist a Veteran in obtaining the identified records). Additionally, although the Agency of Original Jurisdiction (AOJ) obtained a January 2017 medical opinion addressing the likely etiology of the claimed low back disorder, the opinion of the examining VA clinician is inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, the January 2017 VA medical opinion based the determination that the Veteran’s diagnosed low back disability was less likely than not caused by, incurred during, or otherwise related to his active duty service solely upon the absence of evidence that the Veteran complained of or was otherwise treated for a low back disorder for approximately eight years following his discharge. See January 2017 VA Medical Opinion DBQ (stating that “there is no evidence that [the Veteran] had a significant back condition” during the period from his discharge in 1973 until 1981). However, the January 2017 VA examiner neither considered nor addressed the Veteran’s competent assertions concerning experiencing an in-service lumbar spine pathology with continuing symptoms following his discharge. See id. See also January 2017 VA Back (Thoracolumbar Spine) Conditions DBQ (describing the Veteran’s contentions regarding experiencing continuing low back symptoms in the years immediately following his discharge). Because the VA examiner failed to comment on the Veteran’s lay assertions, the examination is inadequate, and a remand is required. Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding that, when a VA examiner fails to address relevant lay evidence, and the Board fails to find the Veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination). Additionally, in further support of the negative etiological determination, the VA examiner inexplicably stated that the Veteran made “[n]o mention of the back” disability in his December 1990 application for compensation, and instead first raised the issue a number of years later in conjunction with a claim for nonservice-connected pension in June 1998. See January 2017 VA Medical Opinion DBQ. This statement is clearly contradicted by the record, which contains the Veteran’s November 1990 claim for service connection for degenerative disc disease, the extensive private treatment records identified by the Veteran detailing the progression of his low back pathology and his treatment for lumbar degenerative disc disease, and the May 1991 rating decision, discussed above, denying his claim for service connection for a low back disability. Accordingly, the January 2017 VA examiner’s opinion is based, at least in part, on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458 (1993) (holding that a physician’s opinion based on an inaccurate factual premise has no probative value). In light of the foregoing, the examination report and opinion currently of record does not put forth sufficient findings and opinions to allow the Board to decide the claim. Therefore, a new VA examination and medical opinion is warranted. The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the VBMS virtual file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Obtain and associate with the claims folder any outstanding VA treatment records. 3. Make arrangements to obtain the Veteran’s SSA records, including all disability determinations, application materials, and associated medical records. 4. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for a VA examination with an appropriate clinician, other than the VA examiner who performed the January 2017 VA back examination, to assist in determining the nature and etiology of the Veteran’s claimed low back condition. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. All pertinent symptomatology should be reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available VA examination reports, private and VA medical treatment records, and lay statements and testimony of record), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current disorders affecting the Veteran’s low back found to be present. As to EACH low back disorder identified on examination or diagnosed during the pendency of the claim, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such condition had its clinical onset during active service or is related to any in-service disease, event, or injury.   For the purposes of this opinion, the examiner must consider and address the Veteran’s reports regarding the onset of low back symptoms and any reported continuity of such symptoms, as reflected in his statements and testimony, as well as the available medical records. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology, and that his report must be considered in formulating the requested opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions and citing to the record, where appropriate. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor it as it is to find against it.   All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.