Citation Nr: 21005382 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-15 904 DATE: February 1, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for lumbar spine disability, to include lumbar strain, claimed as bruised coccyx bone and bulging disc, is granted. REMANDED Entitlement to service connection for lumbar spine disability, to include lumbar strain, claimed as bruised coccyx bone and bulging disc (back condition) is remanded. FINDING OF FACT 1. In a final decision issued in March 1981, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for no diagnosis. 2. Evidence added to the record since the March 1981 prior final decision is not cumulative or redundant of evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for entitlement to service connection for back condition. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final March 1981 decision, the criteria for reopening the claim of entitlement of service connection for back condition have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1977 to August 1980. This matter comes before the Board of Veterans’ Appeals on appeal from a June 2014 and March 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a video hearing before the Board in January 2020. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108, 7105(c). When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” See Smith v. West, 12 Vet. App. 312, 31 (1999). In this case, after review of the claims file, it reflects that the Veteran’s claim was reopened by the RO in a February 2017 rating decision. The Board, however, must still address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Reconsideration New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156 (c)(1). Service department records include, but are not limited to, records related to a claimed in-service even, injury or disease, additional records forwarded at any time after VA’s initial request, and declassified records that could not have been obtained at the time of the prior final denial. 38 C.F.R. § 3.156 (c)(1)(i)(iii). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran’s claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). However, this exception does not apply to service records that (1) did not exist at the time VA previously decided the claim, or (2) were not present because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156 (c)(2). With respect to the Veteran’s claims, service treatment records were added to the claims file in January 2014 and August 2014. The records received in January 2014 and August 2014 include service treatment records from March 1978 to August 1980. The Board notes the August 2014 service treatment records are a duplicate of the October 1980 service treatment records. Therefore, the Board finds the records are not relevant as they do not help substantiate the Veteran’s claim for service connection for his back condition. As for the January 2014 service treatment records, the Board finds that while they were added to the claims file after the first rating decision in March 1981, the records were available at the time of the rating decision. The March 1981 rating decision notes specific service treatment records that are included in the January 2014 service treatment records. In addition, the January 2014 service treatment records did not relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran’s claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Therefore, reconsideration does not apply, and the Board will consider new and material evidence. New and Material Evidence  Legal Principles and Regulations  In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Analysis Here, in the March 1981 rating decision, the RO denied the Veteran’s claim for service connection for back condition because the Veteran’s sprain during service was acute and transitory condition. There was no condition found during his discharge examination or the January 1981 VA examination. Therefore, the RO found that there was currently no back condition present, to include a lumbosacral strain. See March 1981 Rating Decision. The Veteran’s last final decision for his claim for PTSD was in March 1981 as he did not file an appeal to this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In denying the claim, the RO considered service treatment records from February 1978 to August 1980, January 1981 VA examination, and private treatment records. After the last final denial in March 1981, the Veteran filed a claim to reopen in December 2013. The RO denied the claim in a June 2014 rating decision. The Veteran submitted a claim for reconsideration in August 2014. In a March 2015 rating decision, the RO denied the Veteran’s claim for service connection for back condition. Evidence submitted since the last final denial includes irrelevant service treatment records, military personnel records, VA treatment records, February 2015 VA examination, private treatment records, January 2020 hearing transcript, January 2020 VA examination and medical opinions, and lay statements. As addressed above, 38 C.F.R. § 3.156(c) does not apply to the service treatment records (STR) obtained after the March 1981 prior final denial as they are irrelevant or were duplicative in nature as explained above. Therefore, 38 C.F.R. § 3.156(c) is not for application. While the Board notes the Veteran sought treatment for his back condition, there is an etiological opinion regarding the Veteran’s back condition obtained in February 2015. See February 2015 VA Back Condition Disability Benefits Questionnaire (DBQ). Upon review of the aforementioned evidence, the Board finds that the February 2015 VA examination and medical opinion is new and material. This evidence is new because it has never been submitted and it is not redundant of evidence already of record. The evidence is material because it contains evidence of a nexus opinion. See id. Given such, reopening the claim is in order, as the evidence is new and material. Shade, 24 Vet. App. 110. REASONS FOR REMAND Regrettably, the Board finds a remand is warranted for a new VA examination. The Veteran last underwent a VA examination for his back condition in January 2020. At this time, the examiner completed five separate medical opinions. Unfortunately, the Board finds the January 2020 VA examination to be inadequate. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the January 2020 VA examiner did not address the Veteran’s December 2019 magnetic resonance imaging (MRI). In the January 2020 prior Board remand, the Board directed the RO to obtain all of the Veteran’s VA treatment records from December 2019 to present to include the December 2019 MRI of the lumbar spine. See January 2020 Board Decision. Unfortunately, these records were received after the January 2020 VA examination. The Board finds that these records should have been obtained prior to completing the requested VA examination as they are pertinent to the outcome of the VA examination and medical opinions. As such, a remand is necessary to consider these relevant medical records prior to the Board determining whether the Veteran is entitled to service connection. Next, the Board finds the five medical opinions completed in connection with the January 2020 VA examination are inadequate. Specifically, the examiner failed to provide a sufficient rationale to support his medical opinions. In the medical opinions, the examiner simply stated that the conditions are not medically related and defined the Veteran’s conditions. The Board notes that the examiner included cites to the American Academy of Medicine and Rehab but failed to elaborate as to their persuasiveness. The Board can only assume that these articles were used to provide the medical definition of the Veteran’s conditions. Without a sufficient rationale to support the medical opinion, the Board cannot find the medical opinions are of probative value. Therefore, the Board finds a remand is warranted for an addendum opinion. The matters are REMANDED for the following action: 1. Return the examination to January 2020 VA examiner, if available for an addendum opinion. Schedule the Veteran for an examination only if the examiner deems it necessary. 2. The examiner must review the claims file and must state that s/he has reviewed the file to include the most recent medical evidence attached to the file. 3. The examiner should specifically address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current back condition is related to an in-service injury, event, or disease, to include residuals from his in-service fall from a bunk bed and landing on top of a gun rack with upright positions guns in 1979. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s back condition: i. Began during active service, ii. Manifested within one year after discharge from service, or iii. Was noted during service with continuity of the same symptomatology since service. (c.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s back condition underwent any incremental increase in disability, regardless of permanence, due to: i. Service-connected eczema, • The examiner must address the Veteran’s contention that his steroid injections for his back were discontinued due to taking his eczema medicine and his back is now aggravated due to his inability to take the steroid injections. ii. Any other service-connected disability, or iii. Medication taken for any service-connected disability, to include eczema medication. • The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is ot required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. (d.) The examiner is directed to address the following when providing all the above medical opinions: i. The December 2019 MRI; and ii. All relevant medical records, to include records obtained in connection with the prior January 2020 Board remand. • THE EXAMINER MUST PROVIDE A COMPLETE RATIONALE FOR ALL OPINIONS EXPRESSED. • IF MEDICAL LITERATURE, SUCH AS THE AMERICAN ACADEMY OF MEDICINE AND REHAB, IS USED IN SUPPORT OF AN OPINION, THE EXAMINER IS DIRECTED TO DISCUSS THE REASONING IN THE RATIONALE. • THE EXAMINER SHOULD BE AWARE THAT IN RENDERING AN OPINION, IT 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, 301 (2008). 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL.  IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED.  IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION.  YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.