Citation Nr: 21030223 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-28 800 DATE: May 18, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. An October 2008 rating decision denied service connection for a low back disability. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. 2. Evidence received since the October 2008 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of service connection for a low back disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1970 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) from a March 2013 rating decision which found that new and material evidence had not been submitted to reopen an October 2008 rating decision denying service connection for a low back disability. In October 2018, the Board remanded for additional records development prior to determining whether new and material evidence had been submitted to reopen a previously final decision. The Board stated that this records development might result in reconsideration of the October 2008 rating decision instead of reopening. While the Board finds that remand is required because there was not substantial compliance with the October 2018 remand, the Board finds that new and material evidence has been submitted to reopen a previously final decision. The Board defers any determination as to whether the additional records development following this remand would warrant reconsideration of the October 2008 rating decision under 38 C.F.R. § 3.156(c). Reopening of Claims The Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of service connection for a low back disability before addressing the claim on the merits. 38 U.S.C. § 7104; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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. §§ 19.20, 19.52. 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, the agency of jurisdiction (AOJ) 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 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (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 submitted) 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 submitted, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability In March 2008, the Veteran filed a claim of service connection for a low back disability where he generally asserted a back injury during service. An October 2008 rating decision denied service connection for a low back disability because the evidence did not show that this condition occurred in or was caused by service. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In September 2012, the Veteran attempted to reopen his claim. A March 2013 rating decision stated that service connection was previously denied because available service treatment records did not reveal any in-service event related to a low back disability. The rating decision further stated that the evidence of record still did not support a nexus between the current condition and any in-service event. Since the October 2008 rating decision, evidence added to the claims file includes a February 2013 VA Form 21-4138 where the Veteran reported that he was on a work detail after he injured his lower right back after moving metal desks. He also stated that the medical staff informed him at discharge that this injury would give him trouble later in life. The claims file also includes a February 2013 VA Form 21-4142 where the Veteran identified Dr. L.A. as the physician who treated him for his back injury during service. The Veteran is competent to report his symptoms and what he has been told by physicians. These lay statements are presumed to be credible for determining whether new and material evidence has been received to reopen a previously final decision. Justus, 3 Vet. App. at 513. These lay statements relate to showing an in-service back injury and a nexus between the Veteran's current low back disability and an in-service back injury. These lay statements were not in the evidence of record at the time of the October 2008 rating decision and satisfy the low threshold of raising a reasonable possibility of substantiating the claim. Therefore, the Board finds that new and material evidence has been received since the October 2008 rating decision and reopening the claim of service connection for a low back disability is warranted. The Veteran's petition is granted only to this extent. REASONS FOR REMAND The Board finds that there was not substantial compliance with the October 2018 directive to take all procedurally appropriate actions to locate the Veteran's complete service treatment records, to specifically include the medical facility at Luke Air Force Base and any storage facility(ies) to which such records may have been retired. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board stated that the AOJ must directly contact Luke Air Force Base to request all records in their possession pertaining to the Veteran. The Veteran's claims file contains no indication that the AOJ directly contacted Luke Air Base. The Board notes that the AOJ made a Personnel Information Exchange System (PIES) request on September 16, 2020, for the Veteran's complete medical/dental records and entire personnel file at the National Personnel Records Center. While military personnel records were added to the Veteran's claims file in October 2020, an October 30, 2020, VA 21-3101 stated that the overall request status was incomplete. On remand, the AOJ must document in the Veteran's claims file whether the September 16, 2020, PIES request is complete and, if not, to complete the request. The AOJ must also directly contact Luke Air Force Base and document all search efforts in the Veteran's claims file. Moreover, a review of the claims file indicates that the Veteran reported receiving Social Security Disability due to spinal stenosis. On remand, the AOJ should obtain relevant federal records from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). After the above development, the AOJ should schedule the Veteran for a VA examination. The Board notes that the Veteran was not provided a VA examination prior to the October 2008 rating decision or with his petition to reopen. Here, it is unclear whether the Veteran's current low back disability is associated to service, to include the Veteran's lay statements of a low back injury while moving metal desks during service. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The matter is REMANDED for the following actions: 1. Clarify whether the September 16, 2020, PIES request for the Veteran's complete medical/dental records and entire personnel file at the National Personnel Records Center has been completed. Complete the request, if necessary, or document in the Veteran's claims file that the request has been completed. 2. Contact the medical facility at Luke Air Force Base to determine if they possess records pertaining to the Veteran. If records are not in the possession of Luke Air Force Base, inquire whether records were retired at any storage facility(ies) and, if so, contact those storage facility(ies). If no records are found, document all search efforts in the Veteran's claims file. 3. Obtain relevant federal records from the Social Security Administration. Document all requests for information as well as all responses in the Veteran's claims file. 4. Following the above development, schedule the Veteran for a VA examination for his low back disability. The examiner must opine whether the Veteran's low back disability at least as likely as not began during or is related to active service. The examiner must consider the Veteran's lay statements about an in-service back injury while moving metal desks and symptomatology since service. The examiner must provide a rationale supporting the opinion. (Continued on the next page) K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.