Citation Nr: 21024855 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-33 342 DATE: April 26, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened and, to that extent, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for a left foot disability is reopened and, to that extent, the claim is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left foot disability is remanded. FINDINGS OF FACT 1. In a December 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a back disability and a left foot disability; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the December 2011 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a back disability and a left foot disability. CONCLUSION OF LAW The criteria for reopening the previously denied claims for service connection for a back disability and a left foot disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1982 to July 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by a VA RO. While the Veteran requested a Board hearing in his July 2016 substantive appeal, the record reflects that he withdrew that request in January 2021. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a back disability. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left foot disability. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claims of service connection for a back disability and a left foot disability in a December 2011 rating decision, finding that there was no evidence the Veteran had current disabilities related to service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2011). The evidence received since the December 2011 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. The new evidence includes treatment records and lay statements raising new theories of entitlement. This new evidence addresses the reasons for the previous denials; that is, a nexus to service, and raises a reasonable possibility of substantiating the claims. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran underwent VA examination in October 2011 in connection with his original claim for service connection for a back disability. The examiner noted the Veteran’s in-service complaints of back pain and muscle spasms, but opined that a 1995 incident where he injured himself sneezing and required surgery for a herniated nucleus pulposus likely predisposed him to early degenerative joint disease of the spine. However, this opinion does not address a February 1995 X-ray report, conducted in conjunction with this injury, which notes a slight anterior wedging of L4 which was suggestive of old trauma as well as degenerative changes. As the Veteran did not report, nor does the evidence reflect, that he suffered from a trauma between service and the 1995 injury, the Board finds remand is warranted so that a new VA examination and opinion may be obtained. 2. Entitlement to service connection for a left foot disability is remanded. The record reflects that the Veteran complained of foot pain during service and that he has current left foot pain. As no VA examination or opinion has been obtained with respect to the left foot, the Board finds remand is warranted. The examiner should also address the Veteran’s pre-existing left foot fracture noted on entry. Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his back and left foot disability claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disability had its onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to address the February 1995 X-ray report, noting that the Veteran had injuries suggestive of old trauma. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the left foot that is unrelated to his history of left foot fracture had its onset during service or is otherwise related to an in-service injury, event, or disease, to include jumping down from a tall vehicle. The Board notes that a history of left foot fracture at age 12 was noted upon the Veteran’s entry to service. The examiner should address whether it is at least as likely as not (50 percent probability or greater) that any residuals of the fracture increased in severity during service. If so, was the increase in severity clearly and unmistakably due solely to the natural progression of the condition? Please address the basis for these opinions. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. M. C. WILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.