Citation Nr: 21013160 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-41 254A DATE: March 8, 2021 ORDER New and material evidence has been received to reopen a service connection claim for a low back disability. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. In an unappealed November 1978 rating decision, the RO last denied the claim of service connection for a back condition. 2. The evidence received since the last final November 1978 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability. CONCLUSIONS OF LAW 1. The November 1978 rating decision that last denied service connection for a back condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2019). 2. New and material evidence has been received to reopen the claim of service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 20, 1977 to August 19, 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2012 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. As an initial matter, the Board notes that the service personnel records reflect 30 days of active duty service in the Air Force culminating in an honorable discharge. See DD Form 214. Therefore, the Veteran satisfies the threshold requirement for eligibility to receive VA benefits. 38 U.S.C. §§ 101(2), (24) (2012) 38 C.F.R. §§ 3.1(d), 3.4 (2019). As phrased on the title page of this decision, the Board has recharacterized the issue of entitlement to service connection for herniated nucleus pulposus L5-S1 (also claimed as back condition), to service connection for a back disability, to better reflect the information contained in the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” “The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find.” Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). “New” evidence is defined as 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a November 1978 rating decision, the RO denied the Veteran’s original claim for service connection. See Rating Decision dated November 24, 1978. The RO concluded that the Veteran’s back condition preexisted service and was not aggravated by service. Id. The Veteran did not appeal the November 1978 rating decision, nor was new and material evidence received within a year of issuance of the December 1978 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In August 2009, the Veteran sought to reopen his service connection claim for a back condition. The RO concluded that the Veteran had not submitted new and material evidence and declined to reopen the claim. See Rating Decision dated January 21, 2010. The Veteran submitted a timely Notice of Disagreement (NOD) in March 2010, and the RO issued a Statement of the Case (SOC) in September 2011; however, after requesting additional time to perfect an appeal to the Board, the Veteran’s representative did not perfect the appeal, instead requesting a stay pending development of new and material evidence. See Correspondence from representative received January 30, 2012. As neither new and material evidence was timely received nor an appeal timely perfected, the January 2010 rating decision therefore became final. 38 C.F.R. § 20.1103. The RO construed the representative’s January 2012 motion for a stay as a new petition to reopen the service connection claim. In a December 2012, the RO concluded that the Veteran had not submitted new and material evidence and declined to reopen the claim. See Rating Decision dated December 20, 2012. The Veteran submitted a timely NOD in December 2013 and timely perfected an appeal to the Board, and the instant appeal ensued. Based on the procedural history of the case, the last final decision is the November 1978 rating decision. The evidence of record at the time of the November 1978 rating decision consisted of the Veteran’s October 1978 claim for compensation and his STRs. Subsequent to the November 1978 rating decision, evidence added to the claims file includes the Veteran’s August 2009 petition to reopen the claim, correspondence from the representative, private and VA treatment records, including a December 2012 VA treatment record noting that the Veteran reported having an old football injury that worsened while he was in Air Force, statements submitted by the Veteran, and a copy of the transcript of the January 2021 Board hearing. Additional evidence received since the November 1978 prior final denial, particularly the December 2012 VA treatment record and the January 2021 Board hearing transcript, speaks to the question of whether the Veteran’s low back disability is related to service. See Shade, supra. Accordingly, new and material evidence having been received, the claim for service connection for a low back disability is reopened; to this extent only, the appeal is granted. REASONS FOR REMAND A remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). The Veteran asserts that his current low back disability is related to an August 1977 in-service injury, which is reflected in the service treatment records as a diagnosis of “herniated nucleus pulposis, L5-S1.” See Clinical Record Cover Sheet dated August 9, 1977. While the Veteran’s statements are not sufficient to establish a nexus between the Veteran’s lymphoma and service, the evidence is sufficiently suggestive of a nexus to trigger the need for a VA opinion in support of this claim. See McLendon, 20 Vet. App. at 83 (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for requirement that evidence indicate that claimed disability may be associated with in-service injuries for purposes of obtaining an examination). Additionally, while the Veteran’s June 1977 enlistment examination reflects a normal spine examination, the Air Force examiner noted that the Veteran reported he pulled a back muscle “playing football two years ago. X-rays done – Negative.” See Report of Medical Examination dated June 14, 1977 at pg. 2 (Section 25). Thereafter, as revealed in the August 9, 1977 service treatment record noted above the diagnosis of herniated nucleus pulposis, L5-S1 also bears the abbreviation “EPTS,” indicating the belief at that time that the disability existed prior to service. Notably, post-service treatment records include December 2012 VA treatment notes showing that the Veteran reported having an “old football injury” that “worsened in [the] Air Force.” See VA pain consultation noted December 4, 2012. A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. To rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that “even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness”). Therefore, on remand, medical opinions addressing direct service connection as well as whether the Veteran’s low back disability preexisted service and was aggravated during service must be obtained. Lastly, the available treatment records reference post-service back surgeries; however, records of the surgeries have not been associated with the electronic claims file. Additionally, the Veteran’s representative noted during the January 2021 Board hearing that the Veteran receives Social Security Administration (SSA) benefits for his back disability; however, no SSA medical records or disability determinations are of record. Thus, on remand, attempts should be made, with the Veteran’s cooperation, to obtain these outstanding records, if available. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see 38 C.F.R. § 3.159(c)(2) (VA obligated to obtain relevant records from federal agencies). The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the electronic claims file. 2. Provide the Veteran with the requisite authorization/consent forms to identify non-VA providers who may possess outstanding records of pertinent medical care, including surgery(s), for his low back disability(s). If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Request, directly from the Social Security Administration (SSA), complete copies of all determinations on claims for disability benefits from that agency, together with the medical records that served as the basis for such determinations. All attempts to fulfill this development should be documented in the electronic claims file. If VA attempts to obtain outstanding SSA records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 4. Then, provide the Veteran with a VA examination to help determine the likely etiology of any currently diagnosed low back disabilities. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran and the record all signs and symptoms of a low back condition during service and since separation from service. (b) Identify all currently diagnosed low back disabilities that have been present at any point since the date of the claim in January 2012. (c) Provide an opinion as to whether each low back disability: (i) CLEARLY and UNMISTAKABLY preexisted service, and, if so: (ii) whether such preexisting low back disability CLEARLY and UNMISTAKABLY was NOT AGGRAVATED by service. *The answer to EACH question in (c) above, as determined by the examiner, MUST include the phrase “clearly and unmistakably” in order to satisfy the requisite standard of proof. See Cotant v. Principi, 17 Vet. App. 116, 132 (the standard of proof for rebutting the presumption of soundness is evidence that is “clear and unmistakable”). (d) If the examiner finds that a back disability did not pre-exist the Veteran’s service, then provide an opinion as to whether it is more likely than not (50 percent or greater) that the Veteran’s current back disability(s) onset during service, manifested within one year of service separation, or is otherwise related to service. *In providing the requested opinions, consider the following: (i) June 1977 entrance examination medical history form noting the Veteran pulled muscle in his back playing football 2 years prior to enlistment; (ii) August 1977 Clinical Record Cover Sheet reflecting a diagnosis of herniated nucleus pulposis, L5-S1 (see VBMS entry with document type “STR – Medical,” receipt date 05/23/2014, at PDF page 8-12); and (iii) the Veteran’s competent testimony of chronic back pain since active duty service must be considered (see VBMS entry with document type “Board Hearing Transcript,” receipt date 01/04/2021, at pages 16-18). *The examiner is to accept as fact that the Veteran experienced low back pain during service and after his discharge, even though there is a lack of contemporaneous medical evidence immediately after service in that regard. *The Board’s reference to evidence in this context should not be construed as a determination of its credibility. The examiner should provide a complete rationale for each opinion. 5. After completing any additional development deemed necessary, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.