Citation Nr: 21028823 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-07 317 DATE: May 12, 2021 ORDER New and material evidence having been received, reopening of the claim for service connection for a lower back disability is warranted. REMANDED Entitlement to service connection for a lower back disability is remanded. FINDINGS OF FACT 1. In a November 2002 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's claim for entitlement to service connection for a lower back disability; the Veteran did not appeal, nor was new and material evidence received within one year. 2. New evidence was received after the prior July 2013 denial that is material to the issue of entitlement to service connection for a lower back disability. CONCLUSIONS OF LAW 1. The November 2002 rating decision denying entitlement to service connection for a lower back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. The criteria for reopening the claim for service connection for a lower back disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1969 to January 1972. The case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision. In June 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. New and Material Evidence In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Here, a November 2002 rating decision denied entitlement to service connection for a back disability. The Veteran did not file a notice of disagreement nor did he submit any new and material evidence within one year of that decision. Accordingly, the November 2002 rating decision became final. Evidence received since November 2002 includes hearing testimony before the Board, where the Veteran testified about an event that occurred during service during which his back was injured. The evidence is new, in that it was not of record at the time of the November 2002 denied. It is material, in that it is not cumulative or redundant of evidence already of record and raises a reasonable possibility of substantiating the claim for service connection on the merits. The claim for service connection for a back disability is reopened. To this extent only, the appeal is granted. (Continued on Next Page) REASONS FOR REMAND Entitlement to service connection for a lower back disability is remanded. The Veteran claims entitlement to service connection for a lower back disability. He contends that his lower back pain began in Vietnam. See March 2002 VA Form 21-526. There is no dispute that the Veteran has a current lower back disability; the record notes degenerative joint disease of the lower lumbar spine and narrowing of the intervertebral disk space between L5 and S1. See April 1997 VA radiologic report. More recently, an MRI of the lumbar spine showed severe multifactorial central and biforaminal stenosis at L2-L3 and L3-L4, mild to moderate multifactorial central and severe biforaminal stenosis at L4-L5, and severe multifactorial biforaminal stenosis at L5-S1. See March 2017 private treatment records. The Veteran was afforded a VA examination in August 2002. During the examination, the VA examiner noted that his service treatment records reflected a complaint of lower back pain in 1970 and that his discharge physical examination was normal with no complaints in 1972. The examiner noted CAT scan results from 1991 that showed bulging discs at L4-L5 and L5-S1 with a diagnosis of degenerative disc disease and a 1997 x-ray that showed narrowing at L5-S1. The examiner noted the Veteran's work history since leaving the service was as a mechanic, and the Veteran noted that before his work as a mechanic, he worked as a grounds maintenance man. The Veteran reported that he did not do too much heavy lifting and that his low back was alright unless he lifted heavy objects; he also reported that he noted stiffness in the morning and every few years he would have a low backache that lasted over one week. During the examination, the Veteran's back was not symptomatic. He had a normal lumbar lordosis and no palpable spasm in the lumbar paravertebral muscles. The lumbar spine easily flexed 90 degrees, laterally bent 20 degrees in either direction, and extended 15 degrees, and all motions were without pain or weakness to varying resistance. There was mild lack of endurance but no lack of coordination, and no evidence of any radiculopathy. As a result of the examination, the VA examiner stated that he found no evidence of any direct relationship between his current condition and the low back condition while he was on active duty and that, more likely than not, the disc degeneration at L5-S1 was directly related to his age and to his work doing manual labor for the prior 30 years. See August 2002 VA examination report. During his June 2020 hearing, the Veteran testified that he initially injured his back during an incident in March 1970 in which he fell off a truck, fell across an old engine, and burned himself. He testified that the ambulance came and took him to the hospital, and the treatment was focused more on his burn than his back. He testified that he was given pain pills and that, during the rest of his time in Vietnam, the back pain came back occasionally, and he took over-the-counter pain medication for it. The Veteran acknowledged that his service treatment records are silent for any kind of injury or back problems when he got out of service because, even though he knew there was something wrong when he was on his way back from Vietnam, when he was asked, he denied that anything was wrong because he was trying to go home. He testified that his back was injured again in 1971 while he was in an Army unit in Fort Knox, where he was made a stockade guard. He testified that while in the barracks, someone jumped on his back. He testified that he went to the doctor for that, but he was told that he would have to go to the hospital; after that his back felt a little better and he just forgot about it. He testified that he did not know why it is not in his records that he went on sick call and was told he had to go to a hospital for treatment. See June 2020 Hearing Transcript. The Board finds that, in light of the Veteran's hearing testimony, as discussed above, the medical opinion of record is insufficient because it does not reflect consideration of all pertinent evidence; specifically, information provided by the Veteran regarding the Fort Knox incident was not of record at the time of the 2002 VA examination. On remand, a new VA examination should be scheduled, and an etiological opinion obtained. While on remand, any pertinent, outstanding records should also be obtained. The matter is REMANDED for the following action: 1. Ask the Veteran to submit, or authorize VA to obtain on his behalf, any records of private treatment relevant to his lower back disability that are not otherwise of record. All appropriate steps should be taken to obtain identified records. 2. Obtain and associate with the file any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination to assess the nature and etiology of his back disability. The examiner should take a history from the Veteran as to the onset and progression of his lower back disability. Following review of the electronic file, to specifically include the Veteran's service treatment records and his lay statements, the examiner is asked to address the following: Is it at least as likely as not (a 50 percent probability or higher) that the Veteran's lower back disability had onset in, or is otherwise related to service? The examiner should assume as true for purposes of this opinion that the Veteran injured his back in service, as he so describes. All opinions should be supported by a medical explanation or rationale. (Continued on Next Page) 4. Thereafter, readjudicate the issue on appeal. If the claim is denied, issue a supplemental state of the case to the Veteran and his representative. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.