Citation Nr: 21030576 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-51 396 DATE: May 19, 2021 ORDER New and material evidence has been received to reopen the previously denied claim for service connection for a lumbar spine disability. REMANDED Entitlement to an effective date prior to March 31, 2010 for the grant of entitlement to service connection for PTSD is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a rating in excess of 50 percent for PTSD for the period prior to June 25, 2019 is remanded. FINDING OF FACT The Veteran's claim for service connection for a lumbar spine disability was last denied in a December 2007 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. CONCLUSION OF LAW The criteria to reopen the claim for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service fromFebruary 1985 to April 1985 and April 1986 to July 1996. He also had prior Reserve Service, to include active duty for training from September 1979 to February 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the Veteran's petition to reopen his lumbar spine claim, his claim of entitlement to an earlier effective date for the grant of service connection for PTSD, and his claim of entitlement to an increased rating for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed that the Board erred in denying the claims. Regarding the Veteran's petition to reopen, the parties agreed that the Board did not address the May 2010 diagnosis of a lumbosacral strain. Regarding the earlier effective date claim, the parties agreed that the Board did not explain the significance and application of 38 C.F.R. § 3.156(c). Regarding the increased rating claim, the parties agreed that the Board failed to properly consider a December 2017 treatment record noting that he had chronic hyperarousal that had led to great difficulties in his life. In a December 2020 order, the Court granted the parties' JMR vacating the February 2019 decision and remanding the claims to the Board for further adjudication. A June 2020 rating decision grated a 100 percent rating for PTSD, effective June 25, 2019. As this is the maximum rating assignable, an increased rating for that period is not for consideration. 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a lumbar spine disability Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2020). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2020). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). The RO denied the Veteran's claim of entitlement to service connection for a chronic back condition in a December 2007 rating decision, finding that there was no evidence of a diagnosed back disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.1103 (2020). The evidence received since the December 2007 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2020). For example, a May 2010 VA examination report noted a diagnosis of a lumbosacral strain. This new evidence addresses the reason for the previous denial; that is, a current disability. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to an effective date prior to March 31, 2010 for the grant of entitlement to service connection for PTSD 2. Entitlement to a rating in excess of 50 percent for PTSD for the period prior to June 25, 2019 is remanded. 3. Entitlement to service connection for a lumbar spine disability is remanded. The evidence indicates there may be outstanding relevant VA treatment records. On a May 2010 VA Form 21-4142 the Veteran reported receiving treatment at the Wilmington VA medical center in January 2004. VA treatment records dated prior to May 4, 2010 have not been associated with the claims file. Also, a VA treatment record from July 19, 2013 notes that an unidentified non-VA care report form July 9, 2013 had been scanned into VistA Imaging. A VA record from November 17, 2017 indicates that a September 20, 2017 non-VA treatment record had been scanned. A VA record from November 29, 2017 indicates that non-VA records from November 20, 2017 had been scanned. VA records from January 29, 2018 and March 2, 2018 indicate that a January 10, 2018 record had been scanned. A May 23, 2018 VA record indicates that a May 4, 2018 non-VA record had been scanned. A May 21, 2018 VA record indicates that a December 28, 2017 VA record had been scanned. A March 16, 2018 VA record indicates that a January 1, 2018 non-VA record had been scanned. A July 26, 2019 VA record indicates that a July 2, 2019 non-VA record had been scanned. A September 6, 2019 VA record indicates that an August 13, 2019 non-VA record had been scanned. A January 17, 2020 VA record indicates that a January 2, 2020 non-VA record had been scanned. A November 23, 2020 VA record indicates that an October 23, 2020 non-VA record had been scanned. A June 11, 2020 VA record indicates that a May 27, 2020 non-VA record had been scanned. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. See Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) (stating the duty to assist in obtaining VA records is not discharged "based on a mere belief that the likelihood of finding a record substantiating a veteran's claim is 'low' or 'extremely low'"). There also appear to be outstanding Vet Center treatment records. The record contains a May 21, 2007 Vet Center discharge summary noting that the Veteran had attended three sessions with T. Brennan. However, the record does not contain complete Vet Center treatment records. Additionally, a January 2, 2018 VA record indicates that the Veteran received therapy for one 1-2 years with T. Brennan. Accordingly, a remand to obtain the outstanding records is required. Having reopened the Veteran's lumbar spine claim, the Board finds that a VA examination is warranted. The claims folder notes that the Veteran is diagnosed with a lumbosacral strain and service treatment records from December 1979, October 1994, and October 1995 note that the Veteran was treated back pain. Accordingly, a VA examination and opinion are needed. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, including the Ventnor Vet Center. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since December 30, 2020, all VA treatment records dated prior to May 4, 2010, as well as the VistA Imaging records referenced in the July 19, 2013, November 17, 2017, November 29, 2017, January 29, 2018, March 2, 2018, May 23, 2018, May 21, 2018, March 16, 2018, July 26, 2019, September 6, 2019, January 17, 2020, November 23, 2020, and June 11, 2020 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, the Veteran should be afforded a VA thoracolumbar spine examination to determine the nature of any lumber spine disability and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the thoracolumbar spine arose during service or is otherwise related to service. The clinician should address the service treatment records from December 1979, October 1994, and October 1995 noting treatment for low back pain and the May 1996 report of medical history noting the Veteran's report of a lower back strain. A rationale for all opinions expressed should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.