Citation Nr: 21075478 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-41 159 DATE: December 20, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In a final October 2013 rating decision, the RO reopened and denied the Veteran's claim for service connection for a back disability. 2. The evidence received since the October 2013 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claim for service connection for a back disability CONCLUSION OF LAW New and material evidence has been received, and the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty April 1976 to September 1977. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is of record. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The claim was originally denied in an unappealed May 2000 rating decision because the evidence failed to show that a back disability was etiologically related to his service-connected bilateral pes planus. The claim was subsequently denied in November 2009. In an October 2013 rating decision, the RO reopened the claim and denied it on the merits because evidence received since the most recent denial of the claim failed to show that the claimed back disability was etiologically related to his service-connected bilateral pes planus. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the October 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The evidence received since the October 2013 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. In a December 2015 statement, Dr. A.L.B. opined that the Veteran's lumbar disc disorder and spondylosis with radiculopathy were incurred in service when the Veteran fell from a wall that he was climbing with a rope and landed on his back during basic training. Additionally, in August 2021, the Veteran provided testimony regarding the in-service onset of his claimed back disability after he fell from a wall during a climbing exercise in basic training. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. The Veteran seeks service connection for a back disability as directly related to service and/or as secondary to his service connected bilateral pes planus. As previously noted, in a December 2015 statement, Dr. A.L.B. opined that the Veteran's lumbar disc disorder and spondylosis with radiculopathy were incurred when the Veteran fell from a wall and landed on his back during basic training. While the December 2015 private medical opinion is sufficient to reopen the claim, it is not sufficient to grant the benefit sought. There is no indication that Dr. A.L.B. based the opinion on a review of pertinent records, including the service treatment records, nor does the opinion include supporting rationale. The Veteran was most recently examined in July 2013. At the time, the Veteran reported onset of back pain during basic training when he came down a wall the wrong way. The examiner opined that the Veteran's back disability was less likely than not caused by service. The examiner explained that while the service treatment records showed complaints of back pain due to standing, the examination at the time and x-rays failed to show a back condition. The examiner further noted that there was no medical correlation between spondylolisthesis and pes planus and that pes planus did not typically cause back pain. The VA examiner did not address the aggravation prong of secondary service connection. Once 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. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, additional development to obtain adequate medical nexus opinions is necessary. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the disabilities on appeal, and complete and return an appropriate authorization form for each treatment provider identified, including records from Dr. A.L.B. After obtaining the completed release forms, request all identified pertinent medical records. If possible, the Veteran should get these records and submit them himself to expedite the case. 2. Schedule the Veteran for a VA examination to determine whether a back disability is related to service or a service-connected disability. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. Following a review of the relevant evidence, the examiner must address the following questions: a. Identify all currently diagnosed back disabilities. For each currently diagnosed back disability, determine whether it is congenital, and if so, clarify whether it is a "congenital disease" or "congenital defect," (by VA legal definition, a congenital abnormality that is subject to improvement or deterioration is considered a disease while one that is not subject to deterioration or improvement is considered a defect). Then respond to the following: b. If it is a congenital back disease, is it at least as likely as not (a 50 percent or greater probability) was aggravated by service? Please explain why or why not. c. If it is a congenital back defect, was it subjected to a superimposed injury during service? Please explain why or why not. Specifically consider the Veteran's reports of having sustained a back injury during basic training. d. For each back disability that is not a congenital disease/defect, is it at least as likely as not (a 50 percent or greater probability) that the back disability had its onset during service or is otherwise related to service? Please explain why or why not. e. For each back disability that is not a congenital disease/defect, is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed back condition was caused or aggravated by a service-connected disability (including bilateral pes planus, bilateral knee disorders and bilateral hip disorders) to include as due to overcompensation and/or an altered gait/or and weight shifting? Please explain why or why not. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. The examiner should consider all evidence, including the December 2015 medical statement from Dr. A.L.B., and lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. Please note that an examiner's report that she/ he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.