Citation Nr: 21009119 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-06 018A DATE: February 19, 2021 ORDER The request to reopen the claim of entitlement to service connection for a back injury is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In a February 2016 rating decision, the Veteran was denied service connection for a back injury on the basis that new and material evidence had not been received showing a relation to service. However, the Veteran’s claim was originally denied in February 1970 on the basis that he did not have a current disability. The Veteran was notified of the February 2016 decision in correspondence issued the same month. He did not appeal the February 2016 decision. While new evidence in the form of VA treatment records were constructively received within a year of that decision, such evidence is not material because there was no new diagnosed disability. Therefore, the decision is final. 2. During an August 2018 VA examination, the examiner diagnosed lumbar spine degenerative disc disease (DDD) and lumbar stenosis without neurogenic claudication. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a diagnosed disability. CONCLUSIONS OF LAW 1. The February 2016 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 19.52 (2020). 2. The evidence received since the February 2016 rating decision, which denied service connection for a back injury, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). REASONS FOR REMAND The Veteran served on active duty from June 1966 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Although the Agency of Original Jurisdiction (AOJ) reopened the Veteran’s claim of service connection for a back injury, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the AOJ may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issue accordingly. For the reasons described above, the Veteran’s request to reopen his claim of entitlement to service connection for a back injury is granted. Entitlement to service connection for a lumbar spine disability. Despite the Veteran’s assertions that his records were lost in a fire, see March 2019 substantive appeal (VA Form 9), the claim file contains his service treatment records (STRs) and military personnel records. STRs corroborate the Veteran’s reports that he fell in April 1967 and injured his back, see April 1967 STRs, and an undated x-ray reflected slight rotary scoliosis of the spine. See undated STRs. The Veteran has repeatedly asserted that he has had on and off back pain since his in-service injury. See, e.g., March 2008 statement, and medical records corroborate his report of ongoing pain. See, e.g., January 1970 VA examination; September 2001 VA treatment records. His wife also reported that the Veteran has had ongoing pain since the time of the injury. See November 2018 statement. An August 2018 VA examiner diagnosed lumbar spine DDD and lumbar stenosis and opined it was less likely than not that such disabilities were related to service. However, in the rationale, the examiner merely listed facts and provided a statement that the evidence did not objectively support that the Veteran’s disabilities were due to service. This opinion is inadequate because it is conclusory and did not discuss the lay statements of record regarding ongoing pain. As a result, remand for a new opinion is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from February 2019 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of his lumbar spine disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For both the Veteran’s lumbar spine DDD and lumbar stenosis, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss STRs reflecting slight rotary scoliosis and the Veteran’s and his wife’s lay statements regarding ongoing pain since the time of his fall in service. The examiner may not reject the lay statements simply on the basis that they are subjective. Conclusory opinions will be deemed inadequate. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.