Citation Nr: 21075993 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-07 107 DATE: December 22, 2021 ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a back disability is reopened and, to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The claim for service connection for a back disability was originally denied by a Department of Veterans Affairs (VA) Regional Office (RO) in a decision dated October 2002, and a claim to reopen was denied in December 2010. The Veteran did not appeal either decision and no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed the notice of the determination to the Veteran. 2. New evidence received since the time of the final December 2010 decision relates to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The October 2002 rating decision denying service connection for a back disability and December 2010 reopening denial are final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for a back disability is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a back disability The Board of Veterans' Appeals (Board) is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). The Veteran's original claim for service connection for a back disability was denied in an October 2002 decision. The RO found that the Veteran's current discogenic cervical and lumbar disease was not incurred in or related to her service. The claim was again denied in a January 2003 rating decision. The Veteran filed to reopen her claim, and in December 2010, the RO found no new and material evidence to reopen the claim. She again filed to reopen her claim in September 2012, and in the March 2013 decision on appeal, the RO again found no new and material evidence to reopen. The Veteran did not file a timely notice of disagreement with the December 2010 rating decision and no new evidence pertinent to the claim was received by VA prior to the expiration of the appeal period. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the December 2010 decision. Therefore, the December 2010 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The basis of the prior final denial was the RO's finding that the evidence did not show that the Veteran's back disability is related to her military service. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the December 2010 rating decision that addresses this basis. New evidence means existing evidence not previously submitted to VA. Material evidence means 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 United States Court of Appeals for Veterans Claims (Court) has 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit 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. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). If new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). Evidence added to the record since the December 2010 rating decision includes statements by the Veteran. In a February 2016 statement she reported being given heavy gear to carry and exercising in service and stated that they affected her lumbar back area. At her September 2021 Board hearing she testified that the regular physical training regimen in service, including pushups and sit-ups, and going into the field for extended time, affected her back. She reported it was difficult to seek medical treatment in service, so she did not get treatment for her back until after service. She indicated her back pain onset and has continued since service. The Board finds that the Veteran's statements regarding the onset in and circumstances surrounding her back pain is new and material evidence and thus her claim should be reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran has a currently diagnosed back disability. The Veteran has stated that her back pain onset in service as a result of physical demands including regular exercise and that her back pain continued after service. An August 1980 service treatment record includes a report of back pain. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the Veteran should be afforded a VA examination and an opinion obtained as to whether it is at least as likely as not that she has a current back disability that onset in or is causally related to her service. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA back examination. The VA examiner should opine as to whether it is at least as likely as not that the Veteran has a current back disability that onset in or is causally related to her service. A full rationale for all opinions expressed must be provided, and the VA examiner should consider the Veteran's lay testimony as to the onset and continuation of her back pain. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.