Citation Nr: 21031534 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-06 063 DATE: May 24, 2021 ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for a back condition is reopened. REMANDED Entitlement to service connection for a back condition is remanded. FINDINGS OF FACT 1. In a September 1978 rating decision, the RO denied service connection for a back condition. The Veteran did not appeal that decision and it became final. 2.Evidence added to the record since the September 1978 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of service connection for a back condition. CONCLUSION OF LAW New and material evidence has been received since the September 1978 rating decision denying entitlement to service connection for a back condition; the criteria for reopening the claim have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1974 to March 1978, including 21 months of foreign or sea service. This matter is before the Board of Veterans' Appeal (Board) on appeal from a May 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is in the Veteran's file. 1. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for a back condition. The Veteran is seeking to reopen his claim for service connection for a back condition. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "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. Taken in combination, 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). The RO initially denied the Veteran's claim for service connection for a back condition in a September 1978 rating decision due to the lack of diagnosis of a back condition. This denial of service connection became final, as the Veteran did not initiate an appeal of the RO's rating decision, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Board must now determine whether new and material evidence has been submitted since the May 2017 rating decision sufficient for the reopening of the Veteran's claims. The Veteran submitted presented testimony at his March 2021 Board hearing. The Veteran provided testimony that he received a diagnosis of degenerative joint disease of his back, and that his disability is related to his active service. This evidence is new as it was not of record at the time of the previous final denials; it is material, as it speaks to the reason for the previous final denials. The claim is reopened. REASONS FOR REMAND Entitlement to service connection for a back condition is remanded. The Veteran is seeking service connection for a back condition. The Veteran contends that his back condition is due to (1) a reported in-service bicycle accident, and (2) the strained placed on his back due to the "strenuous demands of working on a dry dock." The Veteran was afforded an April 2017 VA examination to determine the nature and etiology of the Veteran's back condition. The VA examiner found that the Veteran did not have a diagnosis of a back condition. Subsequently, the Veteran presented testimony at his March 2021 Board hearing. The Veteran testified to the fact that he has received diagnosis of degenerative joint disease of his back from his private physician. The medical treatment records related to the Veteran's treatment received at the private facility have not been associated with the record to this point. The Board finds that a remand is needed to obtain and associated the outstanding medical records with the claim file. Additionally, the Board will provide the Veteran another opportunity for a VA examination for his back disability considering the Veteran's testimony and the outstanding private treatment records. The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain private treatment records regarding his back condition, to include private treatment records from Dr. Provost and Concord Orthopedics. 2. After completing the foregoing development, schedule the Veteran for an appropriate VA examination to determine the nature and possible relationship to service of his low back condition. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Provide diagnoses for all current low back disabilities, to include those noted during the appeal period. If no underlying diagnosis is rendered, then state whether the Veteran has any functional impairment resulting from back pain. (b) State whether it is at least as likely as not that any low back disability had its onset during or is otherwise related to the Veteran's active duty service, to include a reported in-service bicycle accident, and the strain placed on his back due to the demands of working on a dry dock. A complete rationale is required for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins, 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.