Citation Nr: 21029471 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-18 223 DATE: May 13, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for degenerative arthritis of the lumbar spine is granted. REMANDED The issue of entitlement to service connection for degenerative arthritis of the lumbar spine is remanded. FINDINGS OF FACT 1. In a January 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for degenerative arthritis of the lumbar spine; a timely Notice of Disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the January 2010 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for degenerative arthritis of the lumbar spine, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for degenerative arthritis of the lumbar spine 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 degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied reopening a claim of entitlement to service connection for degenerative arthritis of the lumbar spine on the basis that new and material evidence had not been received. Reopening of Claims Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for degenerative arthritis of the lumbar spine In a January 2010 rating decision, the RO denied entitlement to service connection for a lumbar spine condition on the basis that the medical evidence of record did not link the Veteran's current lumbar spine condition to an in-service motor vehicle accident and there was no evidence to demonstrate that degenerative arthritis of the lumbar spine manifested to a compensable degree within a year of separation from service. The Veteran was notified of the decision in January 2010. The Veteran did not file a timely notice of disagreement or submit new evidence within the appeal period and the decision became final. The Veteran attempted to reopen the claim for service connection for degenerative arthritis of the lumbar spine in October 2015. Since the January 2010 rating decision, evidence added to the claims file includes lay statements, private treatment records, VA treatment records, and the Board hearing transcript. VA treatment records from July 2015 demonstrate that the Veteran's chronic back pain has been recurrent since a military vehicular accident in 1976. November 4, 2015, CAPRI. Further, the Veteran testified that he has had chronic back pain since the 1976 accident and that a doctor told him he would have back problems later in life. August 27, 2020, Hearing Transcript. New and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final January 2010 rating decision. The Veteran reports that he has experienced chronic back pain since the 1976 accident. This evidence, when considered with the previous evidence of record, relates to unestablished facts (i.e., a nexus or continuity of symptomatology since service) necessary to substantiate the claim. The Veteran's competent lay statements are presumed credible for the purposes of meeting the criteria for new and material evidence. New and material evidence having been received, the claim of service connection for degenerative arthritis of the lumbar spine is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. The issue of entitlement to service connection for degenerative arthritis of the lumbar spine is remanded. The Veteran was afforded a VA examination in December 2009. The examiner rendered a negative nexus opinion relying on the absence of complaints or treatment for a low back condition from 1978 to 2000. See December 11, 2009, VA Examination. As new and material evidence has been added to the claims file, the December 2009 examination is inadequate, and a new examination is warranted to determine the etiology of the Veteran's degenerative arthritis of the lumbar spine. See 38 C.F.R. § 3.159 (c)(4)(iii). The examiner did not have the opportunity to review lay statements of the Veteran and updated treatment records added to the claims file since January 2010. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In addition, the evidence indicates that the Veteran is receiving social security disability due to chronic low back pain. See October 29, 2015, Correspondence. The claims file does not contain the Veteran's records from the Social Security Administration (SSA). The RO should undertake reasonable efforts to obtain these records on remand. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. 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. After completion of directive #1, schedule the Veteran for an examination with the appropriate clinician to determine the nature and etiology of the Veteran's degenerative arthritis of the lumbar spine. The clinician should review the virtual file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the current degenerative arthritis of the lumbar spine manifested during or is otherwise related to the Veteran's period of active service, to include the 1976 motor vehicle accident. The examiner should consider and address the Veteran's contention that he first experienced low back pain after the accident and has experienced it on a continuous basis since. The examiner is reminded that lack of medical evidence is not an adequate reason for discounting the Veteran's lay statements. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. (Continued on the next page) A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Monica Ball Jackson, 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.