Citation Nr: 21027133 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-19 808 DATE: May 4, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened. REMANDED Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. In a July 1973 rating decision, service connection for a back disorder was denied. 2. Evidence added to the record since the July 1973 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a back disorder. CONCLUSIONS OF LAW 1. The July 1973 rating decision that denied service connection for a low back disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). 2. The criteria to reopen the previously denied claim of entitlement to service connection for a low back disorder have been met. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to February 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing. In May 2019, the Board denied the issue on appeal. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2020 the Court granted a Joint Motion for Remand (JMR), vacating the May 2019 decision, and remanded the case to the Board for compliance with the JMR. The Court found the Board did not fulfill its duty to assist when it issued the decision without providing the appellant with the VA examiner's resume or other information about their qualifications or addressing the lack of this information after a challenge to the medical competency was properly made. See Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). The Board notes that it appears that the 2019 Board decision did not address any VA examiner's qualifications as there was no relevant VA examination provided during the processing of the appeal. In August 2020, the Veteran requested an additional Board hearing. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). In October 2020, the Veteran testified at a second Board hearing. A February 2021 letter advised the Veteran of his right to have an additional hearing before a third Veterans Law Judge. The letter notified the Veteran that if he did not respond to the letter within 30 days, it would be presumed he did not want another hearing. As the Veteran never responded, the right to the third hearing is deemed waived. Claim to Reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Evidence of record at the time of the July 1973 rating decision included service treatment records and a June 1973 VA orthopedic examination. The Veteran's service treatment records showed no complaints, trauma, or treatment for a back disorder. The 1973 VA orthopedic examination report showed a diagnosis of congenital anomalies of the lumbosacral spine. Evidence of record submitted after the July 1973 rating decision includes Social Security Administration (SSA) records, lay statements from friends and family, November 2018 Board hearing testimony, a January 2019 nexus opinion from Dr. RNP, and hearing testimony from November 2018 and October 2020. The private treatment records documented treatment for a right hip due injury due to a motor vehicle accident. The January 2019 private nexus opinion was that the defect constituting spondylolysis was related to service, as it only became symptomatic when his back was injured in a training mishap during service. The Board finds that new and material evidence has been presented. The evidence, including the private positive nexus opinion, is new because it was not previously submitted to VA. The evidence is material as it relates to unestablished facts necessary to establish the claim whether a current lumbar spine disability is related to service. See 38 C.F.R. § 3.303 (a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156 (a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disorder is remanded. Remand is required for an examination and opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination to determine the etiology of the Veteran's back disorder. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence). In general, service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection. 38 C.F.R. § 3.303(c), 4.9 (2020). However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service (incurrence), or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). For VA purposes, a defect is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In addition, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). STRs indicate the Veteran complained of low back pain. In his January 2011 claim the Veteran wrote while in boot camp he fell from the rope climbing exercise and injured his back. Additionally, in January 2019, a private medical practitioner provided a negative nexus opinion. The Board notes that this opinion is insufficient upon which to grant service connection, as it relied in part on a one-week hospitalization during service, which is not documented. Further, the medical evidence is unclear regarding the congenital nature of the lumbar spine disorder. As such, remand is required to secure an adequate examination and opinion. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the claimed back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, clarify whether any diagnosed back disorder represents a congenital disease or a congenital defect. For VA purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. Second, for any congenital disease, the examiner must indicate whether it clearly and unmistakably preexisted service. If so, the examiner must state whether the congenital disease was clearly and unmistakably not aggravated during service. Third, for any diagnosed congenital defect, the examiner must indicate whether it was subject to a superimposed disease or injury during service. Fourth, for any disorder that is not a congenital disease or defect, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active military service. The examiner must address the following: 1) June 1973 special orthopedic examination; 2) January 2019 private opinion; 3) service treatment record noting the Veteran complained of low back pain; 4) the Veteran's January 2011 claim for compensation; 5) the lay statements from the Veteran's family and friends; and 6) the November 2018 and October 2020 Board hearing transcripts. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.