Citation Nr: 21061843 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-43 555 DATE: October 5, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a back disability (previously characterized as sciatica) is granted. REMANDED Entitlement to service connection for a back disability (previously characterized as sciatica) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a cardiovascular disability, also claimed as high cholesterol, is remanded. Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for acid reflux (claimed as a digestive disorder) is remanded. FINDINGS OF FACT 1. An April 1973 rating decision denied the claim of entitlement to service connection for sciatica; this decision was not perfected for appellate review and is final. 2. Evidence received since the April 1973 rating decision is new and material in that it was not previously considered and raises a reasonable possibility of substantiating the claim for service connection for a back disability (previously characterized as sciatica). CONCLUSIONS OF LAW 1. The April 1973 rating decision that denied the Veteran's claim of entitlement to service connection for sciatica is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2020). 2. The criteria to reopen the claim of entitlement to service connection for a back disability (previously characterized as sciatica) have been met. 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1969 to December 1971. He also served in the Army Reserve and the Army National Guard during the period from 1976 to 2009. This matter arises from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing is of record. Application to Reopen Claim for Service Connection for a Back Disability The Veteran's claim for service connection for sciatica was denied in an April 1973 rating decision. The Veteran initiated an appeal of this decision by filing a notice of disagreement in October 1973. However, he did not perfect an appeal by filing a substantive appeal following the Agency of Original Jurisdiction's (AOJ's) October 1973 issuance of a statement of the case (SOC). See 38 C.F.R. §§ 19.20, 19.21, 19.22. Accordingly, the October 1973 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A previously denied final claim may be reopened by the submission of new and material evidence. 38 C.F.R. § 3.156. In the April 2014 rating decision, the AOJ found that new and material evidence had been received and reopened the claim for service connection for a back disability characterized as lumbar degenerative disc disease. That notwithstanding, the Board must make its own determination regarding new and material evidence to establish its jurisdiction to review the merits of the previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Evidence is new if it has not been previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The basis of the AOJ's denial of service connection for sciatica in April 1973 was that the Veteran's diagnosed back condition at that time, based on a March 1973 VA examination showing supernumerary transitional vertebra with sacralization (X-ray), was a constitutional or developmental abnormality and was not a disability under VA law. See 38 C.F.R. § 3.303(c). However, subsequent evidence has been received that raises a reasonable possibility of substantiating the claim. This evidence includes a VA examination report in February 2014 containing a lumbar diagnosis of degenerative disc disease which is a recognized disability for VA purposes. In addition, the February 2014 examiner opined that this disability is related to the Veteran's period of Army Reserve/National Guard service. As this evidence was not previously considered and raises a reasonable possibility of substantiating the Veteran's claim, it is new and material. Consequently, the claim for entitlement to service connection for a back disability (previously characterized as sciatica) is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran attributes most of his claimed disabilities to his period of service in the Army Reserve and Army National Guard from 1976 to 2009. See May 2013 claim and July 2021 Board hearing transcript. Accordingly, on remand, the AOJ should request the Veteran's personnel and medical treatment records which pertain to this period. Such development is necessary so that the Board can make a fully informed decision in this appeal. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Request from the appropriate repositories the Veteran's full personnel and medical treatment records from his service with the Army Reserve and Army National Guard during the period from 1997 to 2009. Associate those documents with the claims file. (Continued on the next page) 2. Clearly document in the file all the of the Veteran's recognized periods of active service for compensation purposes. 3. After undertaking any additional development deemed appropriate, readjudicate the claims on appeal. If any decision remains adverse to the Veteran, issue a supplemental SOC and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.