Citation Nr: 21005113 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-62 295 DATE: January 29, 2021 ISSUES Whether new and material evidence sufficient to reopen the claim for service connection for degenerative disc disease has been received, and if so should the claim be granted. Entitlement to service connection for degenerative disc disease. ORDER New and material evidence sufficient to reopen the claim for service connection for degenerative disc disease has been received, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for degenerative disc disease is remanded. FINDINGS OF FACT 1. A September 2008 rating decision denied a claim for service connection for degenerative disc disease. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. Evidence received since the September 2008 rating decision is not cumulative and redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for degenerative disc disease. CONCLUSIONS OF LAW 1. The September 2008 rating decision which denied service connection for degenerative disc disease is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for degenerative disc disease has been received, and the claim is reopened. 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 in the United States Army from July 1967 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020 the Veteran testified before the undersigned Veterans Law Judge in a video teleconference hearing. A transcript of the testimony offered at the hearing has been associated with the record. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. Whether new and material evidence sufficient to reopen the claim for service connection for degenerative disc disease has been received, and if so should the claim be granted. Petition to Reopen By way of history, in March 1993 VA denied the Veteran’s original claim of entitlement to service connection for degenerative disc disease. The Board subsequently also denied the Veteran’s claim in a May 1999 Board decision. The Board denied the claim on the basis that there was no competent medical evidence that Veteran’s back disability was related to his claimed in service event or symptomatology. The Veteran did not appeal the Board's decision, and therefore, it became final. In July 2008, the Veteran filed another claim of entitlement to service connection for his back disability and requested that the RO reopen the previously denied claim. In a September 2008 rating decision the RO denied the claim on the basis that no new and material evidence had been received to reopen to claim. The Veteran was notified of his rights but did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the September 2008 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran sought to reopen this claim in February 2012. The RO reviewed the Veteran’s claim file and denied reopening the claim in a January 2013 rating decision. The Veteran filed a NOD in September 2013. VA issued a statement of the case (SOC) in October 2017. The Veteran perfected an appeal to the Board in November 2017. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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 raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the September 2008 rating decision for service connection for degenerative disc disease. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claim Reopened The evidence of record in September 2008 consisted of service records, including personnel and medical records, VA examinations from July 1992 and July 1998 pertinent to the Veteran's back disability, other VA and private treatment records, and lay statements from the Veteran and his former commander. The evidence of record at that time established diagnosis of degenerative disc disease, but it did not establish a nexus back to service for the disability. At that time the Veteran claimed that his back disability was related to a personal assault that he experienced in service in 1968 when a fellow soldier hit him on his back with a stick. Since the September 2008 rating decision for the degenerative disc disease, the Veteran's file has additional VA medical records that have been attached to the claims file. These VA medical records show continuing treatment for ongoing issues for the Veteran's back disability. The Board also notes that the Veteran testified at the December 2020 Board hearing. At that time the Veteran stated that in addition to the personal assault his military occupational specialty (MOS) of car operator required him to drive a jeep for headquarters. The Veteran stated that while he drove on the roads he would have “back pain all the time” and thought that it was related to the driving on the rough unpaved roads. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, new information which may support his claim for entitlement to service connection based on a new claimed in service event. The Board is reminded that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade, 24 Vet. App. at 117. Moreover, such evidence is new and material to the claim as it was not previously considered by the RO and contains new evidence that relates to an unestablished fact necessary to substantiate the claim. The Board does not find the evidence to be duplicative, and this new evidence could certainly contribute to a more complete picture of the claimant's disability, regardless of whether it would not be enough to convince the Board to grant a claim. See Hodge, 155 F.3d at 1363. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. To that extent only, the claim to reopen for service connection for degenerative disc disease is granted. REASONS FOR REMAND Entitlement to service connection for degenerative disc disease is remanded. On review, the Board finds that an additional VA medical examination and opinion is needed regarding the issue of service connection for degenerative disc disease. The Board first notes that the Veteran was afforded VA examinations for his back in July 1992 and July 1998 and both examiners noted diagnoses of degenerative disc disease. At the time of the examinations the Veteran asserted that his back disability was related to his claimed assault in 1968 when a fellow soldier hit him on the back with a stick. The Board notes however that neither examiner provided an opinion on the etiology of the Veteran’s back disability. Therefore, these examinations are inadequate for adjudication purposes. Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the matter should be remanded for the Veteran to be afforded an adequate examination and medical opinion which addresses the etiology of his back disability. The Board also notes that at the December 2020 Board hearing the Veteran stated that in addition to the 1968 assault he believes that his degenerative disc disease may also be related to his MOS. While in service his duties as a car operator included driving a jeep on bumpy and unpaved roads and while performing these duties the Veteran stated that he experienced “back pain all the time” and that he has had continuous back pain and spasms since that time. The Board must address all theories of entitlement raised by a claimant or reasonably raised by the record. See Robinson v. Peake, 21 F.3d 545, 553 (Fed. Cir. 2008). Therefore, upon remand the examiner must also consider whether the Veteran’s back disability is related to his duties under his MOS as a car operator. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. 2. Once the development has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his degenerative disc disease. Following a complete review of the Veteran's claims file, the examiner must opine whether the degenerative disc disease is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s claimed 1968 personal assault or his military duties as a car operator. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records and examinations and private treatment records and evaluations. The examiner’s attention is directed to the Veteran’s statements that his back pain began in service and has continued since his discharge. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A detailed rationale must be provided for any opinion offered. 3. After completing the requested actions, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.