Citation Nr: 21075070 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-06 712 DATE: December 17, 2021 ORDER New and material evidence having been received, the claim for service connection for low back syndrome with degenerative osteoarthritis is reopened. REMANDED Entitlement to service connection for low back syndrome with degenerative osteoarthritis is remanded. FINDING OF FACTS 1. In an October 2013 rating decision, the Regional Office (RO) denied service connection for low back syndrome with degenerative osteoarthritis; the Veteran did not appeal the rating decision and no other exception to finality applies. 2. Evidence added to the record since the October 2013 denial is not cumulative or redundant of the evidence of record at the time of the previous decision and relates to an unestablished fact necessary to substantiate the claim of service connection for low back syndrome with degenerative osteoarthritis. CLONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for low back syndrome with degenerative osteoarthritis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINS AND CONLUSIONS The Veteran served on active duty from October 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his August 2016 Notice of Disagreement (NOD) the Veteran indicated his disagreement with the RO decision to deny, among other things, entitlement to service connection for low back syndrome with degenerative osteoarthritis. The Veteran requested a Decision Review Officer (DRO) de novo review of the claims. See September 2016 election DRO process. That was provided in the January 2019 Statement of the Case (SOC) which continued the denial for the entitlement to service connection for low back syndrome with degenerative osteoarthritis. In his March 2019 Appeal to the Board, VA Form 9, the Veteran identified only the claim of entitlement to service connection for low back syndrome with degenerative osteoarthritis to be the issue on appeal. In October 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veteran Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's VA claims file. This appeal is advanced on the docket (AOD) due to the Veteran's advanced age. 38 U.S.C. § 7107(b); 38 C.F.R. § 20.902(c). Whether new and material evidence has been received to reopen a claim of service connection for low back syndrome with degenerative osteoarthritis. The Veteran seeks to reopen a service connection for low back syndrome with degenerative osteoarthritis. Irrespective of the RO determination, the Board must independently assess whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of the claim. See Jackson v. Principi, 265 F.3d 1366, 1369-70 (Fed. Cir. 2001). The law generally provides that a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, 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 cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As background, in April 1990, the Veteran filed an application requesting compensation for service connection for a low back disability due to a low back injury. See April 1990 VA Form 21-526. In an April 1990 rating decision, the RO denied service connection for a low back disability based on no evidence of injury during service. At that time, the RO considered the service treatment records. The Veteran was notified of this decision and of his appeal rights in a May 1990 letter but did not perfect a timely appeal. Moreover, no evidence pertaining to the Veteran's claim was associated with the file or generated by VA within one year of the RO's decision. As a result, the decision became final. In June 2013, the Veteran filed an application requesting compensation for service connection for, among other things, low back. See June 2013 VA Form 21-526EZ. In an October 2013 rating decision, the RO reopened the claim for low back syndrome with degenerative osteoarthritis and denied service connection for this disability based on no incurrence in or aggravated by military service. At that time, the RO considered service treatment records and VA treatment records. In a letter dated the same month, the Veteran was notified of the determination, but he did not submit a timely notice of disagreement thereafter; nor did he submit any relevant service records or any other evidence or communication which could be considered new and material evidence relevant to the service connection claim during the one-year appeal period following the issuance of the decision. See 38 C.F.R. § 3.156 (b), (c). Therefore, the October 2013 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Since the October 2013 denial, the Veteran has submitted lay statements and presented testimony at a virtual hearing. See November 2015 correspondence; August 2016 NOD; see also October 2021 hearing transcript. The Veteran testified that he injured his back when he "slipped and fell carrying a 30-gallon pot on [his] back." The Veteran testified that he has had problems in his lower back since. The Veteran also submitted lay statements from his daughter and a friend. As this evidence was not of record at the time of the prior denial, it is new. As the evidence related to an alleges injury during service, the basis for the prior denial, it is also material as it relates to an unestablished fact necessary to substantiate the claim. Accordingly, new and material evidence has been received, and the claim service connection for low back syndrome with degenerative osteoarthritis is reopened. 38 C.F.R. § 3.156(a). The threshold for determining if there is new and material evidence is low, and the credibility of the foregoing evidence is presumed for purposes of reopening the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus, 3 Vet. App. at 513. REASONS FOR REMAND Entitlement to service connection for low back syndrome with degenerative osteoarthritis. The Veteran alleges that he has a lower back disability, which stems from his active service. Specifically, he asserts that when he was in active service he fell and hurt his lower back. See August 2016 NOD. He avows that he received treatment for his lower back in-service and has continued to experience discomfort since. See October 2021 hearing transcript. Notably, in November 1982 the Veteran complained of "knots in the back" which began in 1978. See November 1982 VA Form 21-526. A review of the medical evidence of record reveals a post-service diagnosis of low back syndrome with degenerative osteoarthritis. See June 1993 VA General Medical Exam. Notwithstanding the foregoing, he has not been afforded a VA examination. Under these circumstances, the Veteran should be afforded a VA examination to determine the etiology of his claimed disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issue on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record). The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's lower back disability. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed lower back disability had causal origins in service or is otherwise related to the Veteran's active-duty service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.