Citation Nr: 21009654 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-25 506A DATE: February 23, 2021 ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In a December 2001 rating decision, the agency of original jurisdiction (AOJ) denied service connection for a low back disorder. The Veteran was notified of the decision that same month, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the December 2001 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim for service connection for a low back disorder. CONCLUSIONS OF LAW 1. The December 2001 rating decision denying service connection for a low back disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received since the December 2001 rating decision is new and material as to the claim for service connection for a low back disorder, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to June 1976 and from October 1979 to December 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing is of record. The Board remanded the case for further development in March 2018 and April 2020. The necessary development was completed, and the case has since been returned to the Board for appellate review. The separately certified appeal for claims of entitlement to service connection for depression and erectile dysfunction remains pending scheduling of a Board hearing. Law and Analysis 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 AOJ, Board must determine whether new and material evidence has been received subsequent to an unappealed AOJ denial). In a December 2001 rating decision, the AOJ denied service connection for a low back disorder, finding that there was no nexus between the Veteran’s current diagnosis and his service. The Veteran was notified of the decision that same month, but he did not appeal or submit new and material evidence within the one-year period thereafter. There is a December 2002 VA treatment record later associated with the claims file but dated within the year of the rating decision; however, the Board finds that this evidence is not new and material because it is cumulative or redundant of evidence that was already considered by the VA adjudicator, merely confirming that the Veteran had current back problems (noted as a bad back). See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Therefore, the December 2001 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. At the time of the December 2001 rating decision, the record included the Veteran’s service treatment records (as discussed in detail below), post-service treatment records, and statements from the Veteran. The service personnel records secured in connection with the current claim are cumulative with regard to established information relevant to this claim, and the service treatment records included with those records are cover sheets/empty folders or actually duplicative of those that were already of record at the time of the December 2001 rating decision. Based on the foregoing, new and material evidence is needed to reopen the claim. See 38 C.F.R. § 3.156(c). Regarding the service treatment records, the record shows that the AOJ originally received them in December 2000, and the AOJ considered them in both the December 2001 and February 2010 rating decisions. See December 2000, Form 3101 printout. The Board requested development in the prior remands to attempt to locate the service treatment records, as the record suggested that they were no longer associated with the claims file. The AOJ indicated it was not successful in locating the documents. See November 2020 supplemental statement of the case. On further review, the Board has discovered that the service treatment records are in the claims file, having been mislabeled as other documents. The VBMS database shows that the service treatment records were scanned to electronic format in 2014, and the entry has now been returned to its correct location in the electronic claims file (as received in December 2000) for proper adjudication. The evidence received since the December 2001 rating decision includes a written lay statement from the Veteran’s brother (W.S.) received in May 2016 in which he recalled the Veteran being constantly in pain from an in-service back injury after returning from service in 1982. 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). This evidence was not previously considered by the AOJ, relates to an unestablished fact necessary to substantiate the claim (a possible nexus), and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the Board finds that the evidence is both new and material, and the claim for service connection for a low back disorder is reopened. REASONS FOR REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s claim. Specifically, the Veteran was scheduled for a VA back examination in September 2012, but he failed to report for that examination. Given his numerous address changes and periods of homelessness, as well as the reopening of the underlying claim, the Veteran should be afforded another opportunity to appear for this VA examination. The Veteran is advised that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. The case is REMANDED for the following actions: After confirming the Veteran’s mailing address, schedule him for a VA examination to determine the nature and etiology of any current low back disorder that may be present. In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the claims file. Even if the Veteran does not report for the examination, the RO should then refer the file to obtain the following opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment and personnel records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current low back disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. The Veteran has contended that his low back problems are the result of a progressive process that began during his second period of service when he slipped and bumped his back on a tank. He has indicated that when he was working after service, his back gave out, and he discovered that he had a disc rupture in the same location as the scar on his back from the tank injury. See, e.g., September 2000 original compensation claim and October 2009 new claim; July 2017 Bd. Hrg. Tr. Service treatment records in March 1981 show that the Veteran sought treatment for low back pain without history of injury that had started two days prior; the assessment was strained muscles. He returned for treatment several days later with a continued report of low back pain, among other things, and the assessment was cold syndrome. It is noted that the Veteran’s service treatment records are available and are located in the December 2000 claims file entry based on their date of receipt. The post-service evidence shows his report of a motor vehicle accident in the late 1980s in which he indicated that he injured his back, but the treatment records from that facility are no longer available. VA treatment records beginning in the late 1980s document the Veteran’s post-service low back complaints and treatment. See, e.g., VA treatment records from December 1988, January 1991, and May 1997 (July 2001 entry); Social Security Administration records (December 2018 entry). (Continued on the next page)   A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.