Citation Nr: 21065089 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-64 929 DATE: October 25, 2021 ORDER New and material evidence having been received by VA sufficient to reopen a previously-denied claim to establish service connection for a lumbar spine disability, the claim is reopened. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. A November 2001 rating decision denied the Veteran's to establish service connection for a lumbar spine disability; the Veteran did not appeal that decision, nor was any new and material evidence submitted during the appeal period. 2. Evidence received since the final November 2001 rating decision raises a reasonable possibility of substantiating the issue to establish service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The November 2001 rating decision is final with respect to the Veteran's claim to establish service connection for a lumbar spine disability. 38 U.S.C. § 7150(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. Since the November 2001 rating decision, new and material evidence has been received by VA sufficient to reopen the issue of entitlement to service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1977 to April 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. This matter was previously before the Board in October 2019, when the Board denied the Veteran's appeal to reopen a claim for service connection for a lumbar spine disability, finding no new and material evidence had been submitted since the final November 2001 rating decision, which had essentially reopened and denied service connection claim for a lumbar spine disability. Following the Board's denial of the Veteran's claim, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, in a March 2021 Memorandum Decision, the Court vacated the Board's decision, and the matter was remanded for further proceedings consistent with the Court's decision. The Memorandum Decision states that the Board's October 2019 decision improperly applied the new and material evidence standard and provided an inadequate statement of reasons or bases. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbar spine disability Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). New evidence means existing evidence not previously submitted to VA. 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 raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit 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. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2012). Petition to reopen As will be fully addressed below, the Board concludes that since the AOJ's prior final denial in November 2001, VA has received evidence which is new and material and raises a reasonable possibility of substantiating the claim. As such, this issue is reopened. Pertinently, in the November 2001 rating decision, the AOJ denied the claim on the basis that there was no evidence of a disability during service. The Veteran did not submit a timely expression of disagreement with the AOJ's denial of the claim, nor did he submit pertinent new and material evidence within the appeal period of this rating decision. As such, the November 2001 rating decision is final regarding the AOJ's denial of this claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a), (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In order for the claim that was previously denied to be reopened, evidence must have been added to the record since the prior final denial of the claim that addresses these bases. The AOJ's determinations during the pendency of the present appeal concerning whether or not new and material evidence has been received by VA since the prior final denial is not binding on the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the final denial, the VA has received evidence of findings related to the Veteran's complaints of lumbar spine pain, and his lumbar spine disability. Testing in September 2013 included an impression of a multilevel degenerative spurring. In August 2014 the Veteran was diagnosed with arthritis of the spine. Additionally, the Veteran's medical providers have continued to document the Veteran's chronic back pain having begun in service. This evidence reinforces the Veteran's assertion that his current disability is due to pain he began to experience during service. The above evidence is "new," as the evidence was not before the VA at the time of the November 2001 rating decision, and "material;" as it raises the reasonable possibility of substantiating the previously denied issue. The Board thus finds that new and material evidence has been submitted to reopen the issue to establish service connection for a left hip disability, since the prior final denial in November 2001. On that basis, the issue is reopened. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disability is remanded. While further delay is regrettable, it is necessary in order to obtain a VA examination and medical opinion regarding the Veterans lumbar spine disability. The Veteran contends that his lumbar spine disability began after he ran an obstacle course, when his foot was injured, in 1979. The Veteran's service treatment records include documentation of complaints of low back pain. Additionally, the Veteran service treatment records include two instances of Medical Evaluation Board Proceedings. In October 1979, the Medical Evaluation Board report included a diagnosis of chronic lumbar strain. An additional report, in February 1980, documented recurrent pain in back. The Veteran's medical treatment records also indicate that he has continued to seek treatment for his lumbar spine pain. The Veteran was afforded a VA medical examination for his lumbar spine disability in April 2001. However, the new and material evidence submitted by the Veteran raises the possibility of a nexus between the Veteran's in-service diagnosis of chronic lumbar strain, and in-service complaints of low back pain, and his currently diagnosed back arthritis. Additionally, the new and material evidence contains documentation of continuity of treatment since the Veteran separated from service. Therefore, as the April 2001 examiner's opinion is incomplete, the claim must be remanded for a new examination. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The matters are REMANDED for the following action: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. Thereafter, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of the Veteran's lumbar spine disability. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. 3. Then, the examiner should address the following: a. Identify all diagnosed lumbar spine disabilities. b. Provide an opinion addressing whether any diagnosed lumbar spine disability is at least as likely as not (i.e., a 50 percent probability or greater) related to service. c. Provide an opinion addressing whether any diagnosed lumbar spine disability is at least as likely as not (i.e., a 50 percent probability or greater) caused by a service-connected disability. d. Provide an opinion addressing whether any diagnosed lumbar spine disability is at least as likely as not (i.e., a 50 percent probability or greater) aggravated by a service-connected disability e. Provide an opinion addressing whether the Veteran's lumbar spine pain is a manifestation of a disability, which is at least as likely as not (i.e., a 50 percent probability or greater) related to service. f. If the Veteran's reported lumbar spine pain is not found to be a manifestation of any disability (service-connected or otherwise), please describe the functional impairment resulting from such pain and whether it is at least as likely as not (i.e., a 50 percent probability or greater) related to service. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran's lumbar spine pain on his ability to stand, walk, run, stoop, lift objects, bend and maintain balance. *The examiner must specifically address the Veteran's in-service diagnosis of chronic lumbar strain and in-service complaints of pain. The examiners should consider the Veteran's competent lay statements regarding the observable symptoms he has experienced, including pain, and such evidence must not be discounted for the sole reason that it is not reflected in the medical evidence. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In doing so, the examiner shall explain whether the inability to provide a more definite opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.