Citation Nr: 21026570 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-42 837 DATE: May 3, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for a back condition. REMANDED Entitlement to service connection for a back condition is remanded. FINDING OF FACT Since the last, final April 2010 rating decision, evidence has been added to the record that was not previously considered by agency decisionmakers and which pertains to a previously unestablished element of the claim. CONCLUSION OF LAW The criteria for reopening the Veteran's claim for service connection for a back condition have been met. 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to December 2009. This case is before the Board of Veterans' Appeals (Board) on appeal of a November 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Service connection for a back condition (claimed as back pain in upper back, pain in lower back, upper and lower back condition, pain when getting out of bed) was denied in an April 2010 rating decision. The Veteran filed an August 2010 Notice of Disagreement (NOD). VA issued a Statement of the Case (SOC), but the Veteran did not file a VA Form 9 Formal Appeal. The Veteran then filed a VA 21-526EZ Fully Developed Claim (FDC) seeking service connection for both upper and lower back conditions in July 2017 and August 2017. The claim was denied again in an October 2017 rating decision based on no new and material evidence. The Veteran filed a new VA 21-526EZ FDC in October 2017 seeking service connection for a back condition; that claim was denied in a November 2017 rating decision. The Veteran filed a December 2017 NOD with the October 2017 rating decision. VA issued a January 2018 SOC wherein the claim for service connection for a back condition remained denied based on no new material evidence. However, the Board notes that evidence received since the April 2010 rating decision denying service connection for a back condition includes hearing testimony from January 2021 and multiple statements and medical records indicating continued pain. As this additional evidence is relevant, new, and material, this claim consequently may be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Board has reviewed the evidence presently in the record and observes that there are VA treatment records, noted above, indicating that the Veteran has chronic back pain. In addition, the Veteran asserts his back pain was caused by his active duty service. See transcript for January 2021 Board Hearing and October 2009 Report of Medical History for separation. There are no medical opinions of record addressing a nexus between his claimed back injury and his active duty service. On remand, an examination to secure such a medical opinion (with an adequate rationale) is necessary. The matters are REMANDED for the following action: Schedule the Veteran for a VA spine examination, conducted by an appropriate clinician who has reviewed the claims file, to determine the nature and etiology of any current upper or lower back disorders. The examiner should clearly state which, if any, disorders have been present during the pendency of this appeal (i.e., since July 2017). Due consideration must be provided to the Veteran's lay contentions including the weight of the weapon, ammunition and gear he carried. If any disorders are diagnosed, the examiner must opine whether any acquired upper or lower low back disorders are at least as likely as not (50 percent probability or greater) related to service and any incident therein. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.