Citation Nr: 21027332 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-34 999 DATE: May 5, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability; to that extent, the appeal is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for a left eye disability; to that extent, the appeal is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left eye disability is remanded. FINDINGS OF FACT 1. Service connection for a low back disability, was denied in a December 2012 Agency of Original Jurisdiction (AOJ) rating decision and the Veteran did not perfect an appeal or submit new and material evidence within one year. 2. The evidence received since the December 2012 decision is neither cumulative or redundant, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 3. Service connection for a left eye disability, was denied in a December 2012 Agency of Original Jurisdiction (AOJ) rating decision and the Veteran did not perfect an appeal or submit new and material evidence within one year. 4. The evidence received since the December 2012 decision is neither cumulative or redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left eye disability. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the claim for service connection for low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received, the claim for service connection for a left eye disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability Service connection for a low back disability was denied in a December 2012 Agency of Original Jurisdiction (AOJ) rating decision. The Veteran did not perfect an appeal, and the decision became final. The service medical records show no complaints of any back pain or disability. A May 2010 treatment record noted that the Veteran had back pain for the last four years. He reported that he had back problems after separation. The AOJ concluded that there was no evidence of any in-service treatment for a back disability, and there was no medical evidence of record which indicated that any current back disability occurred in or was caused by service. Evidence associated with the claims file since the December 2012 AOJ decision includes additional lay statements, VA treatment records, and hearing testimony. In an August 2015 statement, the Veteran reported that he has had back problems since active duty. At the March 2021 hearing, the Veteran stated that he injured his back moving sandbags and rockets. The pertinent evidence received since the December 2012 rating decision includes the Veteran's lay statements regarding the etiology of his low back condition and continuity of symptomatology since service. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the assertions are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, this evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for a low back disability is reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claim, that does not make it sufficient to allow the grant of the benefits sought. The claim is remanded for development. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left eye disability Service connection for a left eye disability was originally denied in a January 2003 rating decision. The Veteran did not perfect an appeal, and the decision became final. The claim was subsequently denied in November 2005, June 2007, and December 2012. Although the Veteran submitted a notice of agreement in January 2013 for the December 2012 rating decision, he did not perfect the appeal because the December 2014 substantive appeal was untimely for the September 2014 Statement of the Case. Prior to the December 2012 rating decision, the evidence of record included service medical records, VA and private treatment records, and lay statements. The service medical records show complaints of blurry vision. At an April 1972 eye examination, the Veteran reported blurred vision. Corrected distance measured 20/20 bilaterally. No diagnosis was made. At an April 1974 vision screening, the Veteran had corrected distance vision that measured 20/25 bilaterally. He reported that his eyes itched, and that he had blurred vision with diplopia. Again, no diagnosis was made. The Veteran was issued eyeglasses in 1974 but he did not wear them. The September 1976 separation examination showed no eye disabilities and visual acuity of 20/20 bilaterally. VA treatment records show the Veteran has current diagnoses for senile cataracts, pseudophakia of the left eye, macular pucker, and dry eyes. The evidence did not indicate any in-service diagnoses although there were complaints of blurry vision. The AOJ concluded that the evidence did not indicate that any current left eye disability occurred in or was caused by service. Evidence associated with the claims file since the December 2012 decision includes additional lay statements, VA treatment records, and hearing testimony. At the March 2021 hearing, the Veteran reported that during service fragments entered his eye due to his MOS as an aerial gunner. He indicated that he was not wearing eye protection other than his glasses, and that the problems with his eyesight began during service. The pertinent evidence received since the December 2012 rating decision includes the Veteran's lay statements regarding the etiology of his left eye disability. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the assertions are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, this evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for a left eye disability is reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claim, that does not make it sufficient to allow the grant of the benefits sought. The claim is remanded for development. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that the low back disability is due to service. The Veteran has a current low back diagnosis, but he has been provided with a VA examination. The Board cannot make a fully-informed decision on the issue of the low back disability because no VA examiner has opined whether the disability is related to service. On remand, the Veteran should be provided a VA examination to assess the nature and etiology of the low back disability. 2. Entitlement to service connection for a left eye disability is remanded. The Veteran asserts that the left eye disability is due to service. The Veteran has current left eye diagnoses but he has been provided with a VA examination. The Board cannot make a fully-informed decision on the issue of the left eye disability because no VA examiner has opined whether the disability is related to service. On remand, the Veteran should be provided a VA examination to assess the nature and etiology of the left eye disability. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. With any necessary authorization from the Veteran, obtain all of the relevant outstanding treatment records. All attempts to locate records must be documented in the claims file. 3. Schedule the Veteran for an examination to determine the etiology of a low back disability. The examiner must review the record and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After review of the claims file, the examiner should respond to the following: Whether it is at least as likely as not (50 percent or greater probability) that a low back disability had its onset in or are otherwise related to service or any event, injury, or disease during service? The examiner must address the Veteran's reports of continuing low back symptoms from the time of military service to the present. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report symptoms and that his lay observations must be considered in formulating the requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A complete rationale for all opinions expressed should be clearly provided. 4. Schedule the Veteran for an examination to determine the etiology of a left eye disability. The examiner must review the record and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After review of the claims file, the examiner should respond to the following: Whether it is at least as likely as not (50 percent or greater probability) that a left eye disability had its onset in or are otherwise related to service or any event, injury, or disease during service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report symptoms and that his lay observations must be considered in formulating the requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A complete rationale for all opinions expressed should be clearly provided. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.