Citation Nr: 21067293 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-19 493 DATE: November 3, 2021 REMANDED Service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 30, 1977 to December 23, 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office. In July 2021, the Veteran and his brother ("J.V.") testified before the undersigned Veterans Law Judge at a virtual hearing. A copy of the hearing transcript is in the claims file. Service Connection for a Back Disability The Veteran attributes the claimed back disability to a slip-and-fall injury during basic training. The agency of original jurisdiction (AOJ) originally denied his claim for service connection in an unappealed July 1978 rating decision. Generally, VA may not reopen and review the disposition of previously denied claims unless the claimant submits new and material evidence. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. However, 38 C.F.R. § 3.156(c) requires VA to reconsider a claim when relevant service department records are newly associated with the claims file, whether or not they are "new and material." Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). In this case, the AOJ associated the Veteran's complete set of service treatment records with the claims file in February 2016. These records were not on file at the time of the original 1978 rating decision. The Board finds the service treatment records relevant, and will therefore consider the claim on the merits, without first determining whether the evidence received since the previous denial is new and material. Id. The record shows that the Veteran received a VA orthopedic examination in May 1978. The 1978 examiner diagnosed him with "unstable chronic back, secondary to unilateral spondylosis with mild degenerative changes." However, the examiner did not provide a medical opinion as to the etiology of this diagnosis. Subsequent VA medical records show ongoing treatment for low back pain, as well as multiple complaints that he has had back pain since 1977. The Board finds the medical evidence on file inadequate to decide the claim. Remand to the AOJ for a new examination and medical opinion is therefore warranted. See e.g. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Additionally, the Veteran testified at hearing that he receives treatment from a private physician. There are no private medical records on file. On remand, the AOJ should attempt to obtain any such records that the Veteran identifies and authorizes for release, and make them available to the examiner. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any relevant, outstanding private medical records. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination to assess the nature and etiology of the claimed back disability. After reviewing the claims file, the examiner must provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the disability was incurred in service, or is otherwise related to service, including the reported December 1977 slip-and-fall injury. The examiner must consider and discuss the Veteran's lay statements regarding the reported injury and reported onset of his symptoms. 3. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 4. Readjudicate the Veteran's claim. If it remains denied, issue a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.