Citation Nr: 21003243 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-32 368 DATE: January 21, 2021 ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for a lumbar spine disability is reopened. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. In a final May 2012 rating decision, the RO denied the Veteran’s claim for service connection for a lumbar spine disability because the record had not demonstrated that this disability was related to service. 2. The evidence received since the May 2012 final rating decision is not cumulative or redundant, and it raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The May 2012 rating decision that denied a claim for service connection for a lumbar disability is final. 38 U.S.C. § 7105 (c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 through October 1983. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in June 2015. In a January 2019 decision, the Board denied reopening of the claim for entitlement to service connection for a lumbar spine disability based on its determination that new and material evidence had not been received. Additionally, the Board reopened the Veteran’s claim for entitlement to service connection for a cervical spine disability, but ultimately denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 memorandum decision , the Court vacated the January 2019 Board decision and remand the issues of whether new and material evidence was received to reopen the Veteran’s claim for a lumbar spine disability and entitlement to service connection for a cervical spine disability back to the Board for further consideration as consistent with the memorandum. The appeal has since returned to the Board. 1. New and material evidence having been received, the Veteran's claims for entitlement to service connection for lumbar spine disability is reopened. Generally, a claim that has been denied in an unappealed decision in the legacy appeal system may not 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 Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 sought to be reopened and must present a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA must review all the evidence submitted since the last final decision in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). For the claim to be reopened, there need not be new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a May 2012 rating decision, the RO denied service connection for the Veteran’s lumbar disability on the basis that a nexus to service had not been shown. The Veteran did not appeal the decision; therefore, it became final. Since the May 2012 rating decision became final, the Veteran and his representative have submitted updated treatment records for his lumbar spine disability, independent medical opinions for service connection, hearing testimony from the Veteran, and additional arguments supporting the theory that the Veteran’s lumbar spine disability is related to his service. The Board finds that the above-mentioned new evidence is material, as it relates to unestablished facts necessary to substantiate the service connection claim. Therefore, as new and material evidence has been submitted, the Board finds that the Veteran’s claim of entitlement to service connection for a lumbar spine disability is reopened. REASONS FOR REMAND 2. and 3. Entitlement to service connection for lumbar and cervical spine disabilities is remanded. In response to the Veteran’s appellate brief to the Court, the Secretary of Veterans Affairs filed a brief noting agreement with the Veteran’s contention that the Board failed to provide adequate reasons or bases for denying entitlement to service connection for a cervical spine disability. Specifically, the Board erred when it failed to remand the claim for entitlement to service connection for a cervical spine disability back to the RO for consideration of the claim on its merits, in the first instance, after it was reopened; and did not explain why the Veteran would not be prejudiced by the Board’s action. Upon remand, the Court instructed the Board to address this error in accordance with the Secretary’s concession. In December 2020, the Veteran’s representative submitted arguments requesting that the claims of entitlement to service connection for lumbar and cervical spine disabilities be remanded to the RO for consideration of these claims on the merits in the first instance. Considering the Veteran representative’s request for remand and the wealth of evidence received since the reopened May 2012 rating decision, the now reopened issues of service connection for lumbar and cervical spine disabilities are remanded for due process because the AOJ has not considered the merits of the service connection appeal in the first instance. In consideration thereof, and because the Veteran has not waived AOJ review of the merits of these claims, a remand for initial AOJ consideration of the merits of the appeal is warranted. The matters are REMANDED for the following action: Adjudicate on the merits the issues of service connection for lumbar and cervical spine disabilities. In so doing, the RO should consider obtaining an addendum VA examination to address the competing medical opinions, for and against, service connection and address the Veteran’s assertion that his lumbar spine disabilities began in-service and has continued since. See VBMS, documents labeled: Medical Treatment Record-Government Facility, receipt date 2/16/11, pages 2 through 12; VA Examination, receipt date 8/2/2011; Medical Treatment Record-Governmental Facility 11/5/2013; Medical Treatment Record-Government Facility, receipt date 6/24/2015; and Correspondence, receipt date 4/14/2016. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.