Citation Nr: 21068609 Decision Date: 11/11/21 Archive Date: 11/10/21 DOCKET NO. 17-28 518 DATE: November 11, 2021 ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a neck disability. ORDER Having determined that new and material evidence has been received, the claim for entitlement to service connection for a back disability is reopened; to this extent, the appeal is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. In an April 1992 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a back disability. The Veteran did not immediately appeal this rating decision, and thus it became final. 2. The evidence received since the April 1992 rating decision relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for a back disability. CONCLUSIONS OF LAW 1. The April 1992 rating decision denying entitlement to service connection for a back disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received and the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1976 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran's claim for entitlement to service connection for a back disability was originally denied in a rating decision from April 1992. The Veteran did not immediately appeal that decision, and it became final. The Veteran then filed claims for entitlement to service connection for back and neck disabilities. A December 2013 rating decision denied entitlement to service connection for the neck disability, and denied reopening the back disability claim, as they found that the evidence submitted was not new and material. The Veteran filed a timely Notice of Disagreement (NOD) in August 2014, and he was issued a statement of the case in April 2017. The Veteran then appealed his claim to the Board by submitting a VA Form 9 in May 2017, in which he requested a Board hearing. The Veteran's claims were certified to the Board the following month. The Veteran was scheduled for a virtual Board hearing in August 2021, which he did not attend. Correspondence submitted in September 2021 indicates that the Veteran did not attend due to technical issues. The Veteran did not request to be rescheduled for an additional hearing, nor did he indicate that he would be able to make another hearing, should it be rescheduled. The Veteran's Representative then submitted an Appellate Brief later that month, in which no further request for a hearing was made. As such, the Board considers the Veteran's request for a hearing abandoned. As an initial matter, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. That is, the Board has jurisdictional responsibility to consider whether the service connection claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has 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. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). As noted above, the Veteran's claim for entitlement to service connection for a back disability was initially denied in an April 1992 rating decision. That rating decision denied the Veteran's claim as the RO had "assumed this was an acute condition," and the Veteran had not submitted evidence of any subsequent treatment following his active-duty service. They also noted that the Veteran had "failed to furnish a copy of his DD-214." Following the April 1992 rating decision however, the Veteran's claims file has been updated to include more recent VAMC records, as well as private treatment records from the Harbin Clinic Spine and Pain Center, whereby his back pain is discussed extensively. The Veteran has also submitted a copy of his DD-214, received by VA in December 2016. Again, the original rating decision denied the Veteran's claim based on a lack of subsequent treatment records following the Veteran's separation from service, as well as the Veteran not having furnished a copy of his DD-214. The evidence provided is new, insofar as it was not previously submitted to the VA. The evidence is also material, in that it goes to an unestablished fact necessary to substantiate the claim for entitlement to service connection, in that there is evidence of subsequent treatment for the back disability. 38 C.F.R. § 3.156 (a). Affording the Veteran the benefit of reasonable doubt, the Board finds that, under the circumstances of this case, rejecting the Veteran's request to reopen his previously denied service connection claim would be in conflict with the principles explained in Justus and Duran. For these reasons, the claim for entitlement to service connection for back disability will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for a back disability and a neck disability are both remanded. The Veteran has claimed that his back and neck disability are each due to his active-duty service. In a statement received by VA in September 2013, the Veteran wrote that while in basic training he "fell down a flight of stairs in the barracks, hurting my neck and back." He argued that he has experienced pain since that in-service injury, and that he takes medication to manage the pain. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). As an initial matter, the Board recognizes that in December 2013, the RO determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for a back disability. Therefore, although the claim has been reopened by the Board, the RO has not had a chance to readjudicate the claim on the merits. Generally, where the Board reopens a claim, but the RO did not, the case must be remanded for RO consideration. See, Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). Thus, the Board is restricted from deciding this issue of entitlement ot service connection for a back disability on the merits, and a remand is required. In addition, the Board notes the Veteran has not been given VA examinations to determine the nature and etiology of his back and neck disabilities. The Veteran's claims file contains evidence from the Harbin Clinic Spine and Pain Center. These records indicate that the Veteran is frequently seen for "complaints of neck and low back pain since falling down a flight of stairs 30 years ago." See June 2015 Harbin Clinic note. The Harbin Clinic treatment notes indicate that the Veteran has a current diagnosis of "neck pain secondary to cervical stenosis with myelomalacia," and a current diagnosis of "low back pain secondary to advanced degenerative disc disease with moderate to severe stenosis.' Those private treatment notes do not include an etiological opinion but do note that the Veteran has complained of pain to both his neck and back, which has resulted in a functional loss. The Board also notes that the Veteran's service-treatment records indicate that he "fell down stairs onto back" in June 1976. The Veteran was not noted to have neck pain, but he did complain of back pain for approximately three days. The Veteran was given a temporary profile of no physical training as a result of the in-service injury. Therefore, because there is evidence that the Veteran has current neck and back disabilities, and because there is evidence of an in-service injury, the Board finds that the Veteran should be afforded a VA examination for both of the claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The Board further acknowledges that VA examinations were requested in the Appellate Brief submitted by the Veteran's Representative in September 2021. The matters are REMANDED for the following action: 1. Obtain all VA treatment records relevant to the Veteran's back and neck disabilities. Notify the Veteran that if he has further private treatment records relevant to these disabilities, he should submit them or identify them sufficiently so that the RO can obtain them with the appropriate authorization. 2. Following Step 1, schedule the Veteran for a VA examination with an appropriate clinician, to determine the nature and etiology of the Veteran's back and neck disabilities. The claims file must be made available and must be reviewed by the examiners. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: (a.) Confirm the current diagnosis of the neck and/or back disabilities. For any currently diagnosed disability, provide an opinion as to whether it is at least as likely as not that the Veteran's disability was incurred in, or otherwise related, to his time on active service? In rendering this opinion, the examiner's attention is drawn to the Veteran's lay statements that his neck and back disability have continued since service, and that his service-treatment records confirm that he fell down a set of stairs and injured his back while on active duty. The examiner is also asked to review the Veteran's private treatment records from the Harbin Clinic Spine and Pain Center. The clinician is also advised that the Veteran is competent to report his symptoms and history. Such reports by the Veteran must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.