Citation Nr: 21067620 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-40 531 DATE: November 4, 2021 ORDER New and material evidence having been received, the application to reopen the claim for a low back disability is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The claim of entitlement to service connection for a low back disability was denied in a July 1999 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 2. Evidence submitted since the July 1999 rating decision was not previously considered and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the July 1999 rating decision is new and material, and the claim for service connection for a low back disability is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1987 to May 1991, with additional service in the Army Reserves. The Veteran testified a hearing before the undersigned in June 2020. A transcript of the hearing has been associated with the claims file. During the hearing, the Veteran waived his right to have his case remanded to the Agency of Original Jurisdiction (AOJ) for review of additional evidence that was submitted in his appeal since the most recent Statement of the Case (SOC). Whether new and material evidence has been received to reopen the claim of service connection for a low back disability. The Veteran's initial claim for a low back disability was denied in a July 1999 rating decision because there was no evidence of a current disability following the Veteran's active duty service and the Veteran failed to report to a scheduled VA examination. The Veteran did not initiate an appeal or submit any additional evidence within a year of that decision making the July 1999 rating decision final. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board concludes that new and material evidence has been submitted. Evidence added to the record since the July 1999 rating decision includes the Veteran's sworn testimony at his June 2020 hearing that his back disability was incurred while in service and has been ongoing for the "past 30 years." The Veteran specifically noted that his in-service MRI showed that he damaged spinal discs four and five. The Veteran further testified that he has sought VA medical treatment for his back disability. This evidence is new, in that it had not been previously submitted. It is also material because it relates to an unestablished fact necessary (whether the Veteran incurred a back disability while on active duty) and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. The claim must be remanded for a medical opinion because the November 2015 VA opinion is inadequate. The examiner impermissibly relied upon an absence of documentation of continuing treatment or complains regarding the cervical strain in the Veteran's treatment records. The examiner noted that, while in-service, a December 1990 CT scan was silent for complains of neck pain. However, the CT scan noted that there was "minimal central bulging" of the cervical spine, at discs C5-C6. The examiner also did not consider the Veteran's lay statements that he had "constant pain" for which he sought treatment from a chiropractor and self-treated at home with a neck massager. Furthermore, at the hearing, the Veteran reported that he has been received VA treatment for the past three years. However, VA treatment records dated subsequent to November 2015 are not associated with the record. Therefore, on remand, after obtaining any necessary authorization, attempts must be made to obtain and associate with the claims file VA treatment records regarding the Veteran dated subsequent to November 2015. See 38 C.F.R. § 3.159. 2. Entitlement to service connection for a low back disability is remanded. Having reopened the claim, further development is needed. The July 1999 rating decision considered that the Veteran had been seen for back pain during service. The Veteran testified that his back has continued to bother him since service, and that he is currently receiving VA treatment. The claim is remanded to obtain a medical opinion. The matters are REMANDED for the following action: 1. Take all appropriate action to obtain the Veteran's VA treatment records for the period from November 2015 to the present. 2. Thereafter, schedule for the Veteran for an examination with an appropriate clinician (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) to obtain a medical opinion on the likely etiology of the any diagnosed cervical and lumbar spine disability. Copies of all pertinent records must be made available to the examiner for review. Based on review of the record and any examination performed, the examiner must address the following: (a) Identify all currently diagnosed cervical and lumbar spine disabilities. (b) For each diagnosed cervical spine and lumbar spine disability, the examiner must answer whether it is at least as likely as not (50 percent or greater probability) that cervical spine or lumbar spine disability had its onset in service or is otherwise related to any incident of his active duty service? The examiner must discuss the following: (i) the December 1990 CT scan reference to "minimal central bulging" of the cervical spine; and (ii) the Veteran's assertion that he experienced constant pain. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.