Citation Nr: 21005304 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-44 684 DATE: February 1, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for herniated disc L5-S1 (claimed as low back, lumbar disc herniation, lumbar impingement syndrome, spinal stenosis, lumbar radiculitis and sciatica) is granted. REMANDED Entitlement to service connection for herniated disc L5-S1 (claimed as low back, lumbar disc herniation, lumbar impingement syndrome, spinal stenosis, lumbar radiculitis and sciatica) is remanded. FINDING OF FACT Since the last, final July 2007 rating decision, evidence has been added to the record that was not previously considered by agency decisionmakers and which pertains to a previously unestablished element of the claim. CONCLUSION OF LAW The criteria for reopening the Veteran’s claim for service connection for a low back condition have been met. 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to July 2000. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran’s previous representative, a private attorney, moved to withdraw his representation in November 2020. In December 2020, and before the Board could address the motion to withdraw, the Veteran submitted a VA 21-22 appointing a Veterans Service Organization as her representative. Later that same month, the Veteran submitted another VA Form 21-22 appointing a new representative, as reflected on the title page of this decision. New and Material Evidence The Board observes that service connection for herniated disc L5-S1 (claimed as low back condition) was denied in a November 2006 rating decision, reconsidered, and denied again in a July 2007 rating decision. Evidence received since that rating decision denying service connection for low back condition includes a May 2017 back (thoracolumbar spine) conditions disability benefits questionnaire (DBQ) and private treatment records including an October 2013 treatment record noting the Veteran reported back pain rated as 6/10, a December 2013 radiologic examination report showing L4-L5 disc bulging and moderate multilevel degenerative arthrosis of the lumbar spine, a February 2014 treatment record noting that the Veteran might benefit from lumbar spinal fusion and decompression, an August 2020 primary care record noting that the Veteran is complaining about lumbar pain rated at 7-8/10, and November 2020 MRI imaging of the lumber spine. As this additional evidence is relevant, new, and material, this claim consequently may be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Board notes that the May 2017 back DBQ includes notations that several portions of the examination report were not completed because a goniometer was not available during the examination. Thus, while the DBQ indicates that the Veteran’s back condition might be worsening, the Board finds that the examination report is inadequate for adjudicating the Veteran’s service connection claim, and, thus, a remand is required for a VA examination to address the current nature and etiology of the Veteran’s claimed back condition. The matters are REMANDED for the following action: After completing any additional development deemed necessary, schedule the Veteran for the appropriate VA medical examination to ascertain the nature and etiology of her claimed low back disability. The claims file must be reviewed by the examiner. All necessary tests should be conducted. The examiner must identify all lumbar spine disabilities and opine whether any identified disability is at least as likely as not related (a 50 percent or greater probability) to an in-service injury or event, including the Veteran’s reported fall down the stairs and claimed resulting back injury. The Board notes that the Veteran is competent to report events that occurred in service. All opinions must be supported by a rationale. The Board is aware of the complications with examination scheduling due to COVID-19 and encourages the medical facility to consider a telephone interview, or other telehealth means, if scheduling an examination is impracticable or would lead to significant delay or burden to the Veteran. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.