Citation Nr: 21009129 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-38 307 DATE: February 19, 2021 ORDER The application to reopen the claim of entitlement to service connection for a low back disorder is denied. REMANDED Service connection for pelvic floor dysfunction. FINDINGS OF FACT 1. The Veteran had active duty from September 1964 to June 1966; he has been in receipt of a 100 percent rating based on unemployability since February 2017. 2. In March 2008, the Agency of Original Jurisdiction (AOJ) denied service connection for a low back disorder. The Veteran did not appeal and no new and material evidence was submitted within one year of this decision. Therefore, the decision became final. 3. Evidence received since the March 2008 rating decision does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2008 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103, 20.1100 (2020). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2019, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In June 2019, the Board denied the appeals. He appealed these findings to the Veterans Claims Court. In August 2020, the Court Clerk granted a joint motion for partial remand (JMPR). The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, a claim for a low back disorder was denied in March 2008 due to the lack of finding of a connection to service. He did not appeal or submit new and material evidence within the one-year appeal period. Accordingly, the March 2008 rating decision became final. Evidence of record at the time of the March 2008 rating decision consisted of the Veteran’s statements, the service treatment records (STRs), and post-treatment records. Evidence received since the March 2008 rating decision includes additional lay statements, including testimony at the March 2019 Board hearing, STRs, and additional treatment records continuing to show sporadic treatment for a back disorder. While the Veteran asserted at his March 2019 hearing that he developed back pain in service due to his military occupational specialty (MOS) which included carrying boxes in the commissary, the STRs are silent as to any treatment for a back disorder. He testified that he did not seek treatment for his back out of a desire to appear “macho;” however, the STRs, while silent as to any back disorder, contain complaints for other disorders, including a coughing/sneezing/runny nose in June 1965 and a persistent cold in May 1966. At the time of discharge, he reported chronic or frequent colds but specifically checked “no” to recurrent back pain. Thus, the Veteran’s statements that he did not seek medical care for the back is inconsistent with the STRs which show that he sought treatment for a variety of other ailments. Thus, his statements made in connection with a claim for benefits are inconsistent with the contemporaneous in-service medical records and do not support reopening the claim. Additionally, and perhaps most importantly, the Veteran reported an intervening injury is consistent with the period in time which he began seeking treatment for a low back disorder. In this regard, this intervening injury, which is shown by his own statements as well as medical evidence, occurred contemporaneous with his initial treatment for a back disorder. While not dispositive, this evidence weighs heavily against the Veteran’s statements that his disorder began in, or was otherwise related to service. Thus, without any credible evidence of a chronic low back disorder in service, and in consideration of the Veteran’s statements of an intervening injury, the contention raised by the Veteran without corroborating evidence, is assigned less probative value. Accordingly, while some of this evidence is new, including the Veteran’s statements and his February 2011 evidence of treatment for lumbar stenosis and low back pain, it is not material in that it does not raise a reasonable probability of substantiating the claim. As such, the application to reopen the claim of entitlement to service connection for a low back disorder is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In accordance with the August 2020 JMPR, a new opinion must be obtained regarding the Veteran’s pelvic floor dysfunction. Thus, a remand is necessary. The matter is REMANDED for the following actions: Obtain an addendum opinion regarding the etiology of the Veteran’s pelvic floor dysfunction. The entire claims file should be made available to, and reviewed by the, clinician. An additional examination should not be scheduled unless deemed necessary by the clinician. The clinician is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a pelvic floor dysfunction was proximately caused by, aggravated by, or permanently worsened beyond its natural progression by the Veteran’s service-connected other specified trauma and stressor-related disorder with major depressive disorder. The clinician is asked to separately address i) causation, ii) aggravation, and iii) permanent worsening. The clinician is also asked to specifically consider and address the medical articles submitted in March 2019 by the Veteran, as well as the March 2019 opinion describing a relationship between stress and the Veteran’s pelvic floor dysfunction. A thorough rationale is required for any opinions rendered. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.