Citation Nr: 21067296 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-35 496 DATE: November 3, 2021 ORDER Reopening of entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT New and material evidence has been associated with the claims file since the most recent prior final denial of entitlement to service connection for a low back disability in September 2015. CONCLUSION OF LAW The criteria for reopening of entitlement to service connection for a low back disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service in the U.S. Navy from October 1961 to October 1981. In a June 1982 Rating Decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for recurrent low back pain and dorsal muscular strain. A June 1982 Notification Letter informed the Veteran of his appeal rights, but the Veteran did not timely appeal the June 1982 Rating Decision and it became final. Through a March 2013 Statement, the Veteran initiated a claim for reopening of entitlement to service connection for a low back disability; however, in June 2014 and September 2015 Rating Decisions, the AOJ denied reopening of entitlement to service connection for a low back disability. An October 2015 Notification Letter informed the Veteran of his appeal rights, but the Veteran did not timely appeal either Rating Decision, and they became final. In February 2017, VA received an intent to file a claim for compensation and then, in a May 2017 Statement and July 2017 VA Form 21-526EZ, the Veteran initiated a claim for reopening of entitlement to service connection for a low back disability. In August 2017 and April 2018 Rating Decisions, the AOJ denied reopening of entitlement to service connection for a low back disability. The Veteran timely appealed through an August 2018 Notice of Disagreement and a November 2019 VA Form 9. In April 2021, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. In a May 2021 Decision, the Board remanded the issue herein for further evidentiary development. 1. Reopening of entitlement to service connection for a low back disability In general, AOJ decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). "New" evidence is that which is not cumulative or redundant of that previously of record; "material" evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). As delineated in procedural history above, the most recent prior final denial for this disability was in a September 2015 Rating Decision, in which the AOJ found no new and material evidence supporting an in-service event, injury, or illness pertinent to the low back or supporting an etiological relationship between the disability and service. As also discussed above, an October 2015 Notification Letter informed the Veteran of his appeal rights, but the Veteran did not timely appeal and the denial became final. Then, through a February 2017 intent to file, a May 2017 Statement, and a July 2017 VA Form 21-526EZ, the Veteran initiated the current appeal stream for reopening of entitlement to service connection for a low back disability. Crucially, the Board finds that new and material evidence has been associated with the claims file since the most recent prior final denial of entitlement to service connection for a low back disability in September 2015. Since the September 2015 Rating Decision, several pieces of lay and medical evidence have been associated with the claims file. Specifically, the Board highlights the following: (a) May 2017 Statement (the Veteran contended that he strained his back in service while unloading supplies and ammunition and while carrying officers' laundry bags); (b) May 2018 Statement (the Veteran contended that he strained his back in service while unloading supplies and ammunition and while carrying 55-pound boxes of meat for 18 months); (c) May 2018 (received) private treatment record from Dr. Tuthill dated in April 2018 (the provider noted that the Veteran had lower back pain with decreased range of motion and indicated that it was caused by his 21-year history of "Navy work"); (d) December 2018 Statement (the Veteran contended that he strained his back in service while unloading supplies and ammunition and while carrying 55-pound boxes of meat); (e) August 2019 Statement (the Veteran contended that he strained a low-back muscle during service); (f) November 2019 VA Form 9 (the Veteran contended that he strained his back in service while unloading ammunitions supplies and while carrying 55-pound boxes of frozen meat); (g) January 2020 VA Form 21-526EZ (the Veteran contended that he injured his back in service while carrying heavy boxes during stores load); (h) March 2021 (received) private treatment records from Dr. Brinegar dated in October and November 2016 (the Veteran reported back pain since October 1961 that began while carrying officers' laundry bags); and (i) April 2021 Board Hearing transcript (the Veteran contended that he strained his back in service while unloading supplies and heavy ammunitions and while carrying heavy laundry bags). The Board finds the above-listed evidence to be new (associated with the claims file after the most recent prior final denial) and material (sufficient, by itself or with previous evidence of record, to raise a possibility of substantiating the claim). Specifically, although the service treatment records (STRs) are silent regarding any pertinent low-back abnormalities upon entrance to, during, or upon separation from service, the Veteran's new contentions regarding in-service events/injuries (unloading and carrying heavy items causing strain) are sufficient to raise a possibility of substantiating the claim. Notably, the prior final denials were based, in pertinent part, on prior VA examinations in which only some of the contended in-service events/injuries were considered. See April 1982 VA examination (the examiner only considered the Veteran's contended back strain while carrying a full bag of laundry); see also December 2013 VA back conditions examination (the examiner only considered the Veteran's contended gradual onset of in-service back pain while performing rigorous training and work activities, which were not further specified); see also February 2014 VA back opinion (the examiner, without specifically addressing any lay-contentions regarding in-service events/injuries, found that there was no objective documentation in the STR's showing the type of low back injury that would lead to a posttraumatic or chronic inflammatory process). As such, no examiner to date has addressed the Veteran's new contentions regarding straining his back in service while unloading ammunitions supplies and while carrying 55-pound boxes of frozen meat), which, combined with the April 2018 record from Dr. Tuthill, may lead a new VA examiner to find an etiological relationship between the disability and service. The Veteran is competent to report these lay-observable events and credibility is presumed; thus, because the new evidence relates to two of the unestablished facts (in-service event/injury and etiology) and, because, when combined with Dr. Tuthill's opinion, it triggers VA's duty to assist in providing an adequate VA examination, it is sufficient to reopen. 38 C.F.R. § 3.156(a); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, reopening is granted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As discussed above, the Veteran generally contends that his low back disability is etiologically related to his service (specifically to unloading and carrying heavy items causing strain); however, prior VA examiners only considered some of the contended in-service events/injuries. See April 1982 VA examination (the examiner only considered the Veteran's contended back strain while carrying a full bag of laundry); see also December 2013 VA back conditions examination (the examiner only considered the Veteran's contended gradual onset of in-service back pain while performing rigorous training and work activities, which were not further specified); see also February 2014 VA back opinion (the examiner, without specifically addressing any lay-contentions regarding in-service events/injuries, found that there was no objective documentation in the STRs showing the type of low back injury that would lead to a posttraumatic or chronic inflammatory process). As such, no examiner to date has addressed the Veteran's new contentions regarding straining his back in service while unloading ammunitions supplies and while carrying 55-pound boxes of frozen meat), which, combined with the April 2018 record from Dr. Tuthill, may lead a new VA examiner to find an etiological relationship between the disability and service. The Veteran is competent to report these lay-observable events and credibility is presumed; thus, because the new evidence triggers VA's duty to assist in providing an adequate VA examination, remand is warranted to obtain an addendum etiological opinion. The matters are REMANDED for the following action: 1. Obtain an addendum etiological opinion regarding whether the Veteran's low back disability is at least as likely as not caused or aggravated by the Veteran's service, including the contended in-service events/injuries that he is competent to report (unloading and carrying heavy items [heavy ammunitions supplies, 55-pound boxes of frozen meat, and heavy laundry bags] causing strain). The examiner should consider, but is not limited to, the following evidence: (a) May 2017 Statement (the Veteran contended that he strained his back in service while unloading supplies and ammunition and while carrying officers' laundry bags); (b) May 2018 Statement (the Veteran contended that he strained his back in service while unloading supplies and ammunition and while carrying 55-pound boxes of meat for 18 months); (c) May 2018 (received) private treatment record from Dr. Tuthill dated in April 2018 (the provider noted that the Veteran had lower back pain with decreased range of motion and indicated that it was caused by his 21-year history of "Navy work"); (d) December 2018 Statement (the Veteran contended that he strained his back in service while unloading supplies and ammunition and while carrying 55-pound boxes of meat); (e) August 2019 Statement (the Veteran contended that he strained a low-back muscle during service); (f) November 2019 VA Form 9 (the Veteran contended that he strained his back in service while unloading ammunitions supplies and while carrying 55-pound boxes of frozen meat); (g) January 2020 VA Form 21-526EZ (the Veteran contended that he injured his back in service while carrying heavy boxes during stores load); (h) March 2021 (received) private treatment records from Dr. Brinegar dated in October and November 2016 (the Veteran reported back pain since October 1961 that began while carrying officers' laundry bags); and (i) April 2021 Board Hearing transcript (the Veteran contended that he strained his back in service while unloading supplies and heavy ammunitions and while carrying heavy laundry bags). The Board defers to the examiner's discretion to determine whether in-person examination is required to render the requested opinion. (Continued on the next page) 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.