Citation Nr: 21009794 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-36 850 DATE: February 23, 2021 ORDER The petition to reopen the claim for service connection for a back disability, to include neurological symptoms affecting the lower extremities is granted; the appeal is allowed to this extent. REMANDED Service connection for a back disability is remanded. FINDINGS OF FACT 1. An unappealed December 2009 rating decision declined to reopen the claim for service connection for a back disability. 2. The evidence received since the December 2009 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a back disability. CONCLUSIONS OF LAW 1. The December 2009 rating decision declining to reopen the claim for service connection for a back disability is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  2. New and material evidence has been received sufficient to reopen the claim for service connection for a back disability.  38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran participated in a hearing before the undersigned in January 2021, and a transcript of this hearing has been associated with the record. To clarify the issues on appeal, the Board notes that the RO developed two separate issues on appeal, namely service connection for a back disability and service connection for neurological symptoms affecting the left leg. The Board has recharacterized these matters as a single issue because the Veteran’s claim for service connection for a back disability encompasses any neurological symptoms associated with such disability. Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103.  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, a January 1977 rating decision last denied the Veteran’s claim for service connection for a back disability on the merits, finding that the Veteran did not have spondylolysis of the lumbar spine or associated neurological symptoms. The Veteran has submitted several petitions to reopen his claim since the January 1977 denial of his claim on the merits. A December 2009 rating decision most recently declined to reopen the Veteran’s claim, finding that the Veteran had not submitted new and material evidence sufficient to reopen the claim. The Veteran was notified of the decision and of his appellate rights, but he did not appeal the December 2009 rating decision, and no pertinent evidence was received within one year of the December 2009 rating decision.  Therefore, the December 2009 rating decision is final.  Since the December 2009 rating decision, evidence has been added to the record showing that the Veteran has been diagnosed with degenerative changes of the spine. This evidence relates to an unestablished fact necessary to substantiate the claim, namely, the presence of a disability.  As new and material evidence has been received, the claim for service connection for a back disability is reopened.  REASONS FOR REMAND Having reopened the Veteran’s claim for service connection, the Board finds that additional development of the evidence is required before it may render a decision. The record suggests that the Veteran may have a congenital defect of the spine that preexisted his entrance into service. For example, in April 1976, an in-service medical board determined that the Veteran had a preexisting spondylolysis birth defect that had been aggravated by an in-service injury. With that said, a November 1976 x-ray of the Veteran’s spine was normal. The evidence otherwise shows that the Veteran received extensive in-service treatment for complaints of back pain, and he has back disabilities, including degenerative joint disease, that were diagnosed post-service. The Veteran has not been afforded with a VA examination addressing the nature and etiology of his back disability, and on remand, the AOJ should schedule the Veteran to undergo such an examination. The matter is REMANDED for the following action: Schedule the Veteran to undergo a VA examination to determine the nature and etiology of his claimed back disability. After a physical examination of the Veteran and a review of the Veteran’s claims file, the examiner should address the following: (a.) Identify all disabilities of the spine that the Veteran has shown during the appeal period. If no disability is identified, such should be reconciled with records identifying degenerative joint disease of the spine. (b.) Does the Veteran have a congenital defect of the back, including spondylolysis? The examiner should consider all pertinent evidence when rendering this opinion, including the Veteran’s in-service complaints of back pain and the April 1976 finding of a medical board that the Veteran had a preexisting spondylolysis birth defect that had been aggravated by an in-service injury. (c.) If the Veteran has a congenital defect of the back, including spondylolysis, was additional disability superimposed upon that defect during service? The examiner should consider all pertinent evidence when rendering this opinion, particularly the April 1976 finding of a medical board that the Veteran had a preexisting spondylolysis birth defect that had been aggravated by an in-service injury. (d.) If the Veteran does not have a congenital defect of the back, then is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran’s back disability is related to any incident of his active duty service? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.