Citation Nr: 21065138 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-24 767 DATE: October 25, 2021 ORDER New and material evidence having been received, the application to reopen the claim for a low back disorder is granted. REMANDED Entitlement to service connection for a low back disorder. FINDINGS OF FACT 1. The Veteran served on active duty from August 2002 to February 2008. 2. An unappealed August 2013 rating decision denied entitlement to service connection for a back disorder; the evidence submitted since the August 2013 decision reflects diagnoses of a low back disorder, including spondylosis, intervertebral disc disorders, and spinal stenosis. CONCLUSIONS OF LAW 1. The February 2013 rating decision, which denied service connection for a back disorder is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the February 2013 rating 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 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 August 2013 rating decision denied service connection on the basis that the evidence did not reflect a current diagnosis of a back disability. The Veteran filed a timely notice of disagreement with the denial in February 2014, and in April 2015, a statement of the case (SOC) was issued. However, he did not file a substantive appeal within two months of the SOC. Therefore, his appeal was not perfected, and the August 2013 decision became final. The Veteran filed a claim to reopen in February 2016. Since that time additional evidence has been received that reflects a diagnosis of spondylosis, intervertebral disc disorders, and spinal stenosis. Therefore, this evidence is new, and as it goes to the missing element of a current diagnosis, it is material. Therefore, the claim is reopened, and to that extent the appeal is granted. REASONS FOR REMAND As to the merits of the claim for service connection, a remand is necessary so that another VA opinion may be obtained. Since the VA opinion received in March 2017, additional VA and private treatment notes have been received that reflect treatment for the Veteran's spine that was not considered by the VA examiner. In particular, the examiner noted that a December 2016 MRI was performed after a reported motor vehicle accident (MVA) in May 2015; however, May 2014 imaging revealed lumbar spondylolisthesis, disc and vertebral wedging, as well as made note of the L1-L3 spinous process. This evidence calls into question the examiner's implication that the Veteran's current spinal disorder was due to the MVA. Therefore, another opinion is needed. Further, additional relevant VA treatment notes were received after the last adjudication of the appeal in the August 2017 supplemental statement of the case (SSOC). The law provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the veteran explicitly requests AOJ consideration. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, amended 38 U.S.C. § 7105. The substantive appeal was received in June 2017; however, that provision only applies to evidence submitted by the Veteran. Thus, he is not presumed to have waived AOJ consideration of the VA treatment notes added to the claims file. Therefore, the appeal is remanded to allow for AOJ adjudication in light of the evidence added to the claims file since the August 2017 SSOC. The matter is REMANDED for the following actions: 1. Undertake appropriate development to associate any outstanding, relevant treatment notes with the claims file. 2. Direct the claims file to a clinician to address the following: Is it at least as likely as not that (a 50% probability or more) that any of the Veteran's lumbar spine disorders are related to the September 2006 in-service report of a backache "all the time" in service, or is otherwise a result of service? Is it at least as likely as not that (a 50% probability or more) that any diagnosed arthritis of the lumbar spine represents the progression of continuous back symptoms since service? The rationale for any opinion expressed must be provided. If the clinician is unable to provide the opinions requested, he or she should explain why. An examination need not be scheduled unless the clinician cannot answer the questions presented without one. 3. Readjudicate the appeal in consideration of all evidence received since the August 2017 SSOC. 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.