Citation Nr: 21077597 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-29 176 DATE: December 30, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine disability is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. A December 2009 rating decision denied the claim for entitlement to service connection for a lumbar spine disability; the Veteran did not complete a substantive appeal to that decision, and it is final. 2. Some of the evidence received since the December 2009 rating decision pertinent to the claim for service connection for a lumbar spine disability was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. A December 2009 rating decision that denied the claim of entitlement to service connection for a lumbar spine disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the December 2009 rating decision is new and material, and the Veteran's claim for service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. Petition to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a lumbar spine disability. The Veteran seeks to reopen his previously denied claim for entitlement to service connection for a lumbar spine disability. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (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). A claim for entitlement to service connection for a lumbar spine disability was last denied in a December 2009 rating decision on the basis that there was no evidence that the Veteran's current lumbar spine disorder was incurred in service or had an onset within one year from discharge. Evidence received since the December 2009 rating decision consists of multiple statements from the Veteran and his friends, medical treatment records, and a VA medical opinion linking his current disorder to his time in service. See, e.g., August 2021 VA treatment note. In this case, the evidence obtained since the last final denial is new, as it was not previously associated with the record. It is also material because it raises a reasonable possibility of substantiating the claim. The Board determines that the claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine disability. The Veteran's claim for service connection for a lumbar spine disability has been reopened. The Board finds that additional development is necessary. The Veteran testified that he began receiving VA treatment in 1974 and was admitted to the VA hospital for his back in 1976. The claims file includes records from the Veteran's admission to the VA hospital in January 1976; however, records prior to that date are not associated with the file. On remand, records from 1974 should be obtained and associated with the file. The Board notes that the Veteran has asserted that since 1976 he injured his lumbar spine on the horizontal bars during training in service in 1971 and that he was placed on a profile for limited duty until separation. On remand, the Veteran's personnel file should be obtained and associated with the claims file. The file also appears to show no attempt has been made to obtain records pertaining to the Veteran's workman's compensation claims. These records should be obtained as well. Finally, in September 2021, the Veteran submitted an opinion from a VA chiropractic note, dated August 2021, in which the chiropractor opined that the Veteran's flare-ups of low back pain are more likely than not related to his past injuries while serving in the military; however, no further explanation or rationale was provided thereby rendering the opinion insufficient to substantiate the claim. A medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This is particularly significant because the Veteran's medical history is very complex in that it shows several post-service back injuries, and the opinion is not based on a review of the file. The only other medical opinion of record was obtained in September 2004, at which time the VA examiner opined that if the Veteran's reported injury during service did occur "one could speculate that it is at least as likely as not that the injury bears at least some causal relationship to his current conditions with heavy emphasis on the word speculation." Service connection, however, may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Thus, the Board finds that an addendum opinion should be obtained on remand that considers the additional evidence added to the record and includes a complete rationale. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel file and associate it with the claims file. 2. Obtain any relevant records regarding the Veteran's claim(s) for workman's compensation benefits, including applications and decisions. 3. Obtain and associate with the claims file all outstanding treatment records, to include, but not limited to, VA treatment records from VA Medical Center(s) in Topeka from 1974. *The facility must make searches that include archived or retired paper records, with documentation of any negative results. 4. Thereafter, afford the Veteran a VA examination for his claimed lumbar spine disability by an orthopedist (M.D.). The claims folder must be provided to the examiner for review. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. For each diagnosed disorder/functional impairment of the lumbar spine, the examiner should opine whether it at least as likely as not (i.e., probability of 50 percent or higher) had an onset during service, is causally or etiologically due to service, to include the asserted injury during service in 1971, or had an onset within one year after discharge from service. *The examiner should consider and discuss: a) whether any pathology/disease process/symptoms associated with the current lumbar spine disorder(s) is consistent with the mechanism of in-service injury claimed by the Veteran; b) the September 2004 VA opinion that if the Veteran's reported injury during service did occur "one could speculate that it is at least as likely as not that the injury bears at least some causal relationship to his current conditions with heavy emphasis on the word speculation;" c) the August 2021 VA chiropractic note in which the chiropractor opined that the Veteran's flare-ups of low back pain are more likely than not related to his past injuries while serving in the military. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.