Citation Nr: 21070830 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-00 730 DATE: November 26, 2021 ORDER The application to reopen the claims of entitlement to service connection for a lower back and neurological conditions, to include as secondary to a lower back disability, is granted. REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a neurological condition, to include service connection secondary to a lower back disability is remanded. FINDINGS OF FACT 1. A July 2013 rating decision denied the Veteran's claim for entitlement to service connection for lower back and neurological conditions. 2. The Veteran did not appeal that decision and it became final as of July 22, 2014. 3. Instead of appealing the July 2013 rating decision, the Veteran filed to reopen his claim in August 2013, and the AOJ denied the claim in an August 2014 rating decision. 4. Evidence received since the July 2013 rating decision is new and material to both the lower back and neurological condition claims and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2013 rating decision that denied service connection for a lower back and neurological condition is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.52, 20.1103. 2. The criteria for reopening the Veteran's claim for service connection for a lower back condition and neurological condition, are met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1976 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in April 2019 at which time it was remanded for further development. There was an October 2018 Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. If a claim for entitlement to service connection has been previously denied and that submission is final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), affd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence is considered "new" when it was not previously submitted to agency decision makers. 38 C.F.R. § 3.156. It is considered "material" when the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if the evidence was not previously presented to the Board. See Maxon v. West, 12 Vet. App. 453, 459 (1999). In a July 2013 rating decision, the RO denied entitlement to service connection for a lower back condition because there was no documentation in the Veteran's service treatment records for low back complaints. Service connection for a neurological condition was also denied on a primary basis because there was no medical opinion that the Veteran's current neurological condition was related to his in-service complaints and on a secondary basis because he was not service connected for the precipitating condition, i.e., a lower back condition. The Veteran did not perfect an appeal within one year of notification of that decision, and it became final. 38 C.F.R. § 20.1103. The Veteran then filed a claim to reopen in August 2013. Since the July 2013 rating decision, a number of documents have been added to the record. Significantly, service treatment records documenting the Veteran's history of poliomyelitis, three VA examination opinions, and a private opinion have been associated with the record. See 9/30/2013 Service Treatment Record; 3/28/2014 C&P Examination; 4/1/2014 C&P Examination; 7/10/2014 C&P Examination; 11/7/2019 C&P Examination; 7/14/2021 Medical Treatment Record-Non-Government Facility. The evidence is new because it was not previously submitted and material because it relates to previously unestablished facts that the Veteran's condition is ongoing, and administration of the polio vaccine did not exacerbate the Veteran's preexisting post-polio syndrome. See 11/7/2019 C&P Examination; 7/14/2021 Medical Treatment Record-Non-Government Facility. Because the requirements of 38 C.F.R. § 3.156(a) are met, the claim for service connection for lower back condition and neurological condition is reopened. REASONS FOR REMAND When the VA orders a medical examination, it must conduct a "thorough and contemporaneous [one]." Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All medical examinations ordered by the VA must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, a thorough and adequate examination must consider all other relevant evidence of record, including lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). An adequate medical opinion does not contain only data and conclusions, "but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Ultimately, if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination reports); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (inadequate medical evaluation frustrates judicial review). 1. Entitlement to service connection for a lower back condition is remanded. Here, the Veteran was afforded one VA examinations which directly addressed his claim for entitlement to service connection for a lower back condition. See 3/28/2014 C&P Examination. That examiner opined that the Veteran's lower back condition was not related to service because no objective medical evidence was provided in his service treatment records to establish a direct relationship. However, the opinion did not consider the Veteran's lay statements, was nondescriptive and conclusory, so it does not enable the Board to make a reasoned determination in this matter. Therefore, remand to obtain an adequate back examination and opinion is warranted. 2. Entitlement to service connection for a neurological condition, to include service connection secondary a lower back disability is remanded. With respect to the Veteran's claim for a neurological condition, a VA opinion was provided in response to the November 2019 Board remand. Although that opinion was quite thorough in many respects, the examiner's opinion ("there was no pathophysiologic or medical causal nexus between the Veteran's service and associated events or activities and the Veteran's increased neurological symptoms or deficits") is not sufficiently expounded upon to enable the Board to make an adequate determination. There was no discussion of the Veteran's load bearing and the strenuous nature of his service and how that may or may not be related to his increased neurological symptoms. Thus, remand for an addendum opinion specifically addressing that aspect is needed. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA medical examiner to issue a medical opinion regarding the Veteran's claim of service connection for a lower back disability. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by, the examiner providing the opinion. If, and only if, the examiner determines that an examination should be conducted, one should be scheduled. Thereafter, the examiner should address the following: (a.) Please identify any current disability of the lower back. "Current" is defined as any condition identified since the filing of the claim in August 2013 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were incurred in, caused by, or related to service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in August 2013, including Veteran statements that his lower back pain began in service and has continued since. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). 2. Return the claims file to the VA examiner who conducted the November 7/2019 C&P Examination, if available. If that examiner is not available, send the claims file to another examiner to address the following: Does the evidence clearly and unmistakably (i.e., obviously, manifestly, or undebatably) show that the Veteran's polio residuals did not undergo an increase in the underlying pathology, i.e., an aggravation, during service, or show that any increase in disability was due to the natural progression of the disease? Please explain why or why not, specifically considering and discussing the Veteran's lay statements, and the strenuousness of service exercise/ exertion. A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.