Citation Nr: 21026058 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-15 360 DATE: April 29, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back condition is reopened. REMANDED Entitlement to service connection for a back condition is remanded. FINDINGS OF FACT 1. In a January 2008 rating decision, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for a back condition. The RO notified him accordingly in January 2008. He did not file a Notice of Disagreement (NOD) or submit new and material evidence within one year. 2. Additional, non-cumulative evidence received since the January 2008 rating decision related to unestablished facts necessary to substantiate the service connection claim for a back condition and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156, 20.1103. 2. New and material evidence has been received. The claim of entitlement to service connection for a back condition is reopened. 38 U.S.C. § 5107, 5108, 7105; 38 C.F.R. § 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from June 1980 to August 1980 and July 1981 to August 1981, including subsequent periods of reserves service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in June 2018. A transcript of the hearing is associated with the claims file. In March 2019, the Board issued a decision which denied new and material evidence had been received sufficient to reopen the Veteran’s claim for entitlement to service connection for the Veteran’s back condition. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court filed a Memorandum Decision. The Court found that the Board erred in finding that the Veteran had not submitted new and material evidence sufficient to reopen his claim for service connection for a back condition. As such, the Court has directed the Board to reopen the claim and to remand the claim for further development consistent with the reopening. Petition to Reopen Generally, if a claim of entitlement to service connection has been previously denied, by the Board or by a RO, that decision is final, unless the Veteran appealed in a timely manner. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 3.104, 20.1100, 20.1103. However, a previous claim of entitlement to service connection can be reopened if the Veteran files again and if new and material evidence is presented. 38 U.S.C. § 5108. The VA is required to review all the evidence submitted by a Veteran since the last final denial of the claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet. App. 523 (1994). “New” evidence means not previously part of the actual records before the agency adjudicators. “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(a); 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). Shade further holds that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim [.]” Id. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Court has directed the Board to reopen the claim for entitlement to service connection for a back condition. The Court found that the submission of new and material evidence after the January 2008 rating decision clearly demonstrated the existence of a current disability. See CAVC Decision received May 2020. The Board notes that in March 2011, the Veteran provided imaging of his spine. See Medical Treatment Record- Non-Government Facility received March 2011. Additionally, one of the Veteran’s treatment providers stated that the Veteran’s back pain was likely due to heavy lifting and stress. See Third Party Correspondence received March 2011. The bar to reopening a claim for new and material evidence is low. Shade, 24 Vet. App. 110. The evidence submitted since the prior final January 2008 denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Therefore, such evidence is new and material, and the claim for service connection for a back condition is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. The Court directed the Board to remand the claim and to allow the Veteran to submit new evidence. Additionally, on remand, the Board notes that the Veteran submitted letters from two private treatment providers, reporting that he was currently receiving treatment from them for back pain. See Medical Treatment Record-Non-Government Facility received June 2018, Third Party Correspondence received July 2018. On remand, the RO should make appropriate efforts to ensure that all pertinent private treatment records are associated with the claims file. The matters are REMANDED for the following action: 1. Request the Veteran to provide authorization for release of all identified private medical records to VA. In particular, he reported private treatment for back pain. See Medical Treatment Record-Non-Government Facility received June 2018, Third Party Correspondence received July 2018. If any records identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such records. The Veteran is also to be asked to provide any relevant records that may be in his possession as well. 2. The RO should document in the claims file all attempts to obtain records and perform whatever needed follow up they deem necessary based on the obtained records or other evidence. (CONTINUED ON NEXT PAGE) 3. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.