Citation Nr: 21062672
Decision Date: 10/08/21	Archive Date: 10/08/21

DOCKET NO. 17-62 014
DATE: October 8, 2021

ORDER

New and material evidence having been received, the application to reopen the claim for a back disorder is granted.

REMANDED

Entitlement to service connection for a back disorder.

FINDINGS OF FACT

1. The Veteran served on active duty from July 1980 to July 1984.  

2. An unappealed October 1984 administrative decision denied entitlement to service connection for a back disorder; evidence submitted since the October 1984 administrative decision reflects a current diagnosis of and suggests a nexus to service. 

CONCLUSIONS OF LAW

1. The October 1984 administrative decision, which denied service connection for a back disorder, is final. 38 U.S.C. § 7105 (2012).

2. The evidence received since the October 1984 administrative decision is new and material; the claim for a back disorder is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In June 2021, the Veteran testified before the undersigned Veterans Law Judge.  A copy of the transcript has been associated with the claims file. 

Turning to the relevant law and regulations, prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim."  38 C.F.R. § 3.156(a).

In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1991).

An October 1984 administrative decision denied a claim for service connection for lower back pain and other disorders because the Veteran did not report for a VA examination.  The Veteran did not appeal the denial, and it became final. 

Since that time, new medical evidence has been received that reflects a diagnosis of degenerative joint disease (DJD) of the thoracolumbar spine, and the Veteran provided testimony as to in-service injury and symptoms, as well as treatment since service, at the June 2021 hearing.  Therefore, this evidence is new, and as it goes to the missing elements of a current diagnosis and a nexus to service, the claim of entitlement to service connection for a back disorder is reopened.  To that extent, the appeal is granted.

REASONS FOR REMAND

At the June 2021 hearing, the Veteran reported recent treatment for his back, including a November 2020 MRI.  The most recent VA treatment notes of record are dated in 2017.  Accordingly, up-to-date VA treatment notes should be added to the claims file.

In addition, a January 2009 VA treatment note reported that the Veteran was receiving disability benefits from the Social Security Administration (SSA) and they must be obtained.  

The matter is REMANDED for the following actions:

1. Undertake appropriate development to associate outstanding, relevant treatment notes with the claims file

2. Obtain the documents associated with the Veteran's application for SSDI and any related determination rendered by the SSA. 

 

L. HOWELL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. M. Schaefer, 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.