Citation Nr: 21065005 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-25 416 DATE: October 22, 2021 REMANDED Entitlement to service connection for back pain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1962 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). Therefore, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. Here, in a June 2000 rating decision, the RO denied the Veteran's claim for service connection for a back injury as there was no evidence of a back injury during service. The decision was final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105(c); 38C.F.R. §§3.104, 20.302, 20.1103. Then, in October 2014, the Veteran filed a new claim for service connection for a back injury. In the March 2015 rating decision, the RO denied reopening the Veteran's claim for service connection because the evidence was not new and material. The decision was final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105(c); 38C.F.R. §§3.104, 20.302, 20.1103. In October 2018, the Veteran filed a new claim for service connection for tinnitus, bilateral hearing loss, and back condition. In a December 2018 rating decision, the RO granted service connection for tinnitus and bilateral hearing loss but denied reopening the claim of service connection for the Veteran's back condition as there was no new and material evidence. As such, the Veteran filed a notice of disagreement (NOD) in January 2019 for the denial for service connection for his back condition. In January 2015, military personnel records were received which established that the Veteran was stationed aboard the USS Wasp in 1962. The Veteran claims that he was injured aboard the USS Wasp in 1962. In addition, in January 2015 and August 2019, additional VA treatment records were received which established that the Veteran suffers from a back condition which he has undergone treatment and surgery. See June 2019 VA Nursing Outpatient Note. The military personnel records existed but were not provided to the RO at the time of the June 2000 rating decision, as they were not listed as evidence reviewed in preparing the June 2000 rating decision. Therefore, 38 C.F.R. § 3.156(c) applies, and the claim for service connection for back pain will be reconsidered, without any threshold issue of whether new and material evidence has been received to reopen the claim. The Board finds a remand is warranted for a new VA examination and medical opinion. For the following reasons, the Board finds the Veteran is entitled to a new VA examination. Specifically, the Veteran seeks service connection for back pain. He contends that his back pain resulted from active duty which result from an injury sustained while stationed aboard the USS Wasp in 1962. See January 2019 Notice of Disagreement. In support of the claim, additional VA treatment records were received, in addition to, the Veteran's military personnel records. The VA treatment records establish that the Veteran has had a back condition and has undergone surgery. The military personnel records evidence that the Veteran was stationed aboard the USS Wasp in 1962. The Board notes the Veteran underwent a VA examination in March 1999. Here, the Board finds this VA examination is inadequate. Specifically, the examination includes the Veteran's medical history, subjective complaints, and objective findings. The examiner's findings included a slight flattening of the normal lumbar curve, no tenderness or muscle spasm, flexion to about 60 degrees and extension to 20 degrees, motion was slightly stiff, and no loss of motion or muscle power. The Board finds the examination does not include a medical opinion. The medical history states that the Veteran sought treatment in 1962 for some aching in his lower back and was seen at sick call. The examiner noted that x-rays were taken during service. See March 1999 VA Spine Exam. Since the examination was from 1999, the Board finds that it is inaccurate to depict the current severity and diagnosis of the Veteran's back pain. Furthermore, the medical evidence of record suggests that a more severe back condition has developed, and a medical opinion is necessary to determine its etiology. In addition, the Board finds a remand is necessary to obtain additional records, to include service treatment records. The Veteran contends that he sought treatment in 1962 and the March 1999 VA examination notes the 1962 treatment. After review of the record, the Board finds the service treatment record is missing from the file. The matters are accordingly REMANDED for the following action: 1. Secure any additional private and/or VA treatment records pertaining to the Veteran's back condition, to include service treatment records. Specifically, the RO should attempt to obtain service treatment records from 1962. All attempts to obtain these records must be documented in the claims file. If more details are required to conduct such search, the Veteran should be asked to provide the necessary information. The results of such request, whether successful or unsuccessful, should be documented in the claims file, and the Veteran informed of any negative results. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If the VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After completing the above, the RO should obtain a new VA examination, from a qualified examiner, as to the etiology of the Veteran's back pain. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, VA medical records, and the March 1999 VA examination. The examiner should address the following: Whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's back condition had its onset or is otherwise related to his military service. The examiner should consider and comment on the Veteran's contention of his 1962 back injury aboard the USS Wasp, and the history noted in the March 1999 VA examination. If the examiner discounts the Veteran's argument, a reason should be given for doing so. A clear rationale must be provided for all opinions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.