Citation Nr: 21027104 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-42 654 DATE: May 4, 2021 ORDER New and material evidence having been received, the claim for service connection for a lumbar spine disability is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran's petition to reopen a claim for service connection for a lumbar spine disability was previously denied by a January 2008 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the January 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2008 rating decision declining to reopen a claim of service connection for a lumbar spine disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a lumbar spine disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1983. This matter is on appeal from an October 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. At the hearing, the Veteran was granted a 30-day abeyance period for the submission of additional evidence to support his claim. New and Material Evidence In January 2008, the RO denied the Veteran's petition to reopen a claim of service connection for a lumbar spine disability that had been previously finally denied by a July 2001 rating decision, which had denied the claim based essentially on a finding that the disability existed prior to service and was not aggravated by service. The January 2008 rating decision denied the claim based on a finding that the Veteran had not submitted new and material evidence to reopen the claim. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Once the case is reopened, the presumption as to the credibility no longer applies. Justus, 3 Vet. App. at 513. 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. During the October 2020 hearing, the Veteran stated that he "never had an issue with [his] back at all" prior to service. Further, in November 2020, VA received lay statements from the Veteran's mother, who stated that he had no limitations prior to service and was an active hunter and fisherman who played football, baseball, and softball. As explained above, the Board must presume that these statements are true for the purpose of determining whether to reopen the Veteran's claim. These lay statements raise a reasonable possibility of substantiating the claim because they support the Veteran's contention that his current disability did not preexist service. The Board therefore finds that this evidence is new and material, and the Veteran's claim is reopened. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disability remanded. The Veteran contends that he is entitled to service connection for a lumbar spine disability. In this case, there is a question as to whether the Veteran's lumbar spine disability preexisted service. In May 2016, the Veteran was provided with a VA examination in which the examiner stated that the back condition existed prior to service. The presumption of soundness applies when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Although the Veteran reported on his July 1980 entrance report of medical history that he experienced muscle spasms in his back in March 1980 and that he was placed in traction at that time, the Veteran's July 1980 entrance examination is absent of any notations of defects, infirmities, or disorders of the spine. Additionally, the evidence is at least in equipoise as to whether a lumbar spine disability manifested during service, as service treatment records note minimal scoliosis of the lumbar spine in March 1981, and the Veteran was provided with a provisional diagnosis of arthritis of the lumbar spine in April 1983. Therefore, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). In the May 2016 examination report, the examiner stated that it is "less likely than not that the claimant's back condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression ... during military service." Although the examiner indicated that there was clear and unmistakable evidence that a back condition preexisted the Veteran's service, the examiner did not provide a rationale for this conclusion. Further, this opinion does not reflect application of the clear and unmistakable standard to the question of in-service aggravation. As such, the Board finds that an additional opinion is necessary which applies the clear and unmistakable evidence standard to both questions of whether the condition pre-existed service and was not aggravated by service and provides a clear rationale for any conclusion reached. Additionally, in November 2020 written argument, the Veteran's attorney submitted a military personnel record reflecting the Veteran obtained an award during service for outstanding volleyball skills and that he would not have been able to play on his "unit's volleyball team or meet the high marks he had on his [physical training] scores" if he had a preexisting back condition. In conjunction with this argument, the Veteran's attorney noted that the Veteran's military personnel records were not of record and requested that they be obtained pursuant to 38 U.S.C. § 5103(A)(c). As the attorney's argument indicates these records may be pertinent to the Veteran's claim, they should be obtained on remand. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records. 2. Obtain the Veteran's VA treatment records for the period from June 2019 to the present. 3. After completing the development in items 1 and 2, obtain a records review and opinion regarding the nature and etiology of the Veteran's lumbar spine disability. If the reviewing clinician determines that an examination of the Veteran (including via telehealth) is necessary to answer the questions asked, then such must be scheduled. The reviewing clinician should be requested to provide an opinion (based on a review of the record) to answer the following: (a.) Is there clear and unmistakable (i.e., undebatable) evidence that the Veteran's lumbar spine disability preexisted service? In providing an opinion on this question, the examiner should consider the Veteran's service treatment records, his testimony at the October 2020 hearing, and lay statements regarding observations of the Veteran prior to service submitted in November 2020. (b.) If the examiner finds a lumbar spine disability did clearly and unmistakably preexist service, was it clearly and unmistakably (undebatable) not aggravated by service? (c.) If the examiner finds that a lumbar spine disability either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not that the Veteran's lumbar spine disability is related to service, including treatment received therein. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.