Citation Nr: 21031849 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-00 253A DATE: May 24, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability, previously claimed as an upper back problem and the claim is reopened; to this extent only is the appeal granted. REMANDED Entitlement to service connection for a back disability, previously claimed as an upper-back-problem, is remanded. FINDINGS OF FACT 1. In an unappealed November 2010 rating decision, the RO denied the claims of entitlement to service connection for an upper back problem finding the evidence did not show this condition occurred in or was caused by service; no new and material evidence was received within the appeal period and the Veteran did not disagree with that determination. 2. The evidence received since the November 2010 decision is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2010 rating decision denying the Veteran's claim of entitlement to service connection for an upper back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Since the November 2010 rating decision new and material evidence to reopen the claim for service connection of an upper back condition has been received and the claim is reopened. 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 May 1966 to February 1969. This matter comes to the Board from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) declining to reopen the matter finding no new and material evidence had been submitted. Regardless of the RO's action, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran was scheduled for a hearing before the Board in February 2021, but withdrew this request, and the hearing was cancelled. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability, previously claimed as an upper back problem and the claim is reopened; to this extent only is the appeal granted. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim based on all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The phrase raises a reasonable possibility of substantiating the claim does not create a third element for new and material evidence. Rather, it is simply a component of the question of what new and material evidence is and should be informed by the question of whether the evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade at 117-18. New and material evidence is not required as to each previously unproven element of a claim. Id. at 120. Thus, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See Id. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran's claim of entitlement to service connection for an "upper back problem" was denied in a November 2010 rating decision and it was not appealed. The RO denied the claims on the grounds that the evidence did not establish that an in-service event, injury, or disease occurred, particularly relating to any indication of a chronic disability. The RO also found that the evidence did not indicate diagnosis of a current disability. At the time of the November 2010 denial, the evidence included service treatment records, to include an August 1967 treatment record documenting a "minor bruise" where he was hit by a box working on a ship. Since the November 2010 rating decision, the Veteran has clarified his contentions that this 1967 incident was more severe than the service record indicates, stating that he was actually hit by a pallet and that he was placed on bedrest for 3 days. See November 2020 Statement in Support of Claim. More recent VA records document recent complaints of back and neck pain, and the Veteran is claiming continuing symptoms of pain since the August 1967 incident. See April 2016 Statement in Support of Claim. A December 2019 Disability Benefits Questionnaire (DBQ) notes a current diagnosis of "thoracic spine perineural cysts." The Board must presume the credibility of the evidence presented for the purpose of determining whether it is new and material. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); Duran v. Brown, 7 Vet. App. 216, 220 (1994). As such, taking into account the Veteran's new statements regarding the severity of the in-service incident, his statements regarding continuity of symptoms since service, current VA outpatient treatment records documenting current complaints of back and neck pain, and the DBQ noting a diagnosis of thoracic spine perineural cysts, the Board concludes the "new" evidence since the November 2010 denial is "material" for purposes of reopening the claim. That is, the new evidence relates to the unestablished facts of the previously denied service connection claim and, therefore, raises a reasonably possibility of substantiating the claim. Thus, the claim is reopened and to this extent only the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, previously claimed as an upper back problem. As noted above, the Veteran contends that he has a current back disability related to an in-service in August 1967 where he was hit by a pallet and placed on bedrest for 3 days. He claims he had ongoing back and neck pain since this incident. His service treatment records not an August 1967 isolated treatment for a "minor bruise" related to being hit by a box working on a ship, but the Veteran maintains this accident was far more severe than what was documented in his records. VA treatment records since service do not document any particular condition, but rather document complaints of back and neck pain. A DBQ, however, does reflect a diagnosis of "thoracic spine perineural cysts." The Veteran should be afforded a VA examination to address his claim, resolve whether he has a disability for VA purposes and, if so, whether any such disability is related to his military service. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that the term disability "refers to the functional impairment of earning capacity, not the underlying cause of said disability."). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed disability of the spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's complaints of pain cause functional impairment of earning capacity, then the examiner should consider them a disability for VA purposes and for purposes of answering the questions below. The examiner is asked to provide a response to the following: For any found disability (to include "pain resulting in functional impairment of earning capacity) of the spine, including the cervical and/or thoracolumbar spine, is it at least as likely as not related to service, including the August 1967 incident where the Veteran reports having been struck in the back with a pallet? Provide a rationale to support the opinion(s). (Continued on the next page) In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms, the August 1967 service treatment record, and any current pathology. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.