Citation Nr: 21021541 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-59 859 DATE: April 13, 2021 ORDER The appeal to reopen a claim of service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. An unappealed February 2008 rating decision denied service connection for a low back disability essentially on the basis that VA records did not show any diagnosis or treatment for an arthritic condition, nor evidence relating the condition to disease or injury that began in service. 2. Evidence received since the February 2008 rating decision includes treatment records and an examination showing a current low back diagnosis, and testimony from the Veteran that her low back has hurt her since her in service injury that relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability; and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a low back disability may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 1979 to December 1987 and in the U.S. Navy Reserve from December 1990 to May 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision. In December 2019, a Travel Board hearing was held before the undersigned; a transcript is in the record. The Board notes that this matter has been developed as one of service connection for a newly filed claim. However, the record reflects that a final and unappealed February 2008 rating decision denied service connection for a low back disability. As a result of such development, the Veteran was not previously provided notice related to reopening a finally adjudicated claim. However, because this decision reopens the matter, and develops the claim on a de novo review, any duty to assist omission with respect to notice pertaining to providing new and material evidence to reopen the matter is considered a harmless error. The appeal to reopen a claim of service connection for a low back disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. “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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a low back disability was denied by a previous unappealed February 2008 rating decision partly on the basis that the Veteran’s VA outpatient treatment reports showed no diagnosis or treatment of a low back disability nor evidence relating the condition to disease or injury that began in service. That decision is final. Accordingly, new and material evidence to reopen the claim is required before the claim can be considered de novo. 38 U.S.C. §§ 7105, 5108. Considering the basis for the prior denial of the claim, for evidence to relate to an unestablished fact necessary to substantiate this claim and be new and material it would have to tend to show that the Veteran has a low back disability that might be etiologically related to her service. Evidence added to the record since February 2008 includes treatment records and an examination showing a current low back diagnosis, and December 2019 testimony from the Veteran that her low back has hurt her since her in service injury. As a current disability was previously not shown, and the Veteran’s lay statements alleging continuity of symptoms was not of record, such evidence constitutes new evidence that pertains to a previously unestablished fact necessary to substantiate the claim of service connection for a low back disability (on a secondary service connection theory of entitlement); considering the “low threshold” standard for reopening endorsed by the Court in Shade, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received, and that the claim of service connection for a low back disability may be reopened. REASONS FOR REMAND Entitlement to service connection for a low back disability The Board finds that further development is necessary for proper adjudication of the claim. On June 2016 examination the examiner opined that it was less likely than not that the Veteran’s low back disability was related to service. The examiner acknowledged a fall from a stool to the floor in 1982 but also cited the absence of follow-up or recurrent pain in the subsequent STRs or for many years thereafter. However, such opinion failed to provide adequate rationale for the opinion and alone is insufficient for rating purposes in this matter. Notably, when VA undertakes to provide the Veteran with a medical opinion, it must provide for one that is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lastly, the Veteran has not been afforded a medical opinion which considers her testimony provided at the December 2019 Travel Board hearing in which the Veteran testified to having symptoms throughout service that continued to present day. The Board may not find these reports not credible solely because of the absence of records of treatment, although examiners may consider this along with consideration of the Veteran’s statements. Accordingly, a medical opinion that considers the Veteran’s lay statements, and adequately provides rationale for any opinion reached is necessary. See Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923. The matter is REMANDED for the following action: Arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and an advisory medical opinion addressing the likely etiology of her low back disability. The Veteran’s record must be reviewed by the consulting provider. Upon review of the record, the clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current low back disability that onset or was caused by service? To include the Veteran’s noted low back injury in 1982. (b.) If the opinion is that the Veteran’s current low back disability is unrelated to service, please provide the etiology considered more likely. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.