Citation Nr: 21039774 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-31 108A DATE: July 1, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the October 1974 rating decision that denied service connection for a back disability; this rating decision became final. 2. The Veteran did not appeal the September 2000 Board decision that denied service connection for a back disability; this Board decision became final. 3. The Veteran did not appeal the December 2004 rating decision that denied reopening service connection for a back disability; this rating decision became final. 4. Additional evidence received since the final December 2004 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for a back disability. CONCLUSIONS OF LAW 1. The October 1974 rating decision denying the Veteran's claim of entitlement to service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The September 2000 Board decision denying the Veteran's claim of entitlement to service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. The December 2004 rating decision denying the Veteran's claim to reopen a claim of entitlement to service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to June 1973 and January 1980 to February 1996. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability; the appeal is granted to this extent only. The Veteran's claim of entitlement to service connection for a back disability was denied in a July 1974 rating decision on the basis that no records were obtained concerning the Veteran's injury. Moreover, there was no evidence of a current back disability, which is the first element of service connection. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran's service treatment records (STRs) were associated with the claims file in September 1974. The RO confirmed the July 1974 rating decision in a subsequent October 1974 rating decision on the basis that the STRs did not indicate treatment for the claimed disability. The Veteran did not appeal the October 1974 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b). Accordingly, the October 1974 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran's claim of entitlement to service connection for a back disability was reopened and denied in a September 2000 Board decision on the basis that there was no evidence of a current back disability, which is the first element of service connection. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Notice of the denial was provided in September 2000. Unless the Chairman of the Board orders reconsideration of the decision, the Board decision is final on the date stamped on the face of the decision. See 38 C.F.R. § 20.1100. No appeal was taken from the Board decision, and the record does not reflect that the Veteran filed a timely claim for reconsideration of the September 2000 Board decision. As such, the September 2000 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100. The Veteran filed a claim to reopen in March 2004. The RO denied the claim to reopen in a December 2004 rating decision on the basis that that there was no new and material evidence sufficient to reopen the claim. The Veteran did not appeal the December 2004 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b). Accordingly, the December 2004 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a claim to reopen in July 2011. The RO denied the claim to reopen in a December 2011 rating decision on the basis that there was no new and material evidence received sufficient to reopen the claim. This does not affect the finality of the October 1974 rating decision, the September 2000 Board decision, or the December 2004 rating decision. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for a back disability. New evidence received since the last final denial in December 2004 includes an August 2010 MRI report showing the presence of degenerative disc disease (DDD) and spondylosis in the lumbosacral spine and an August 2011 lay statement regarding the Veteran's on-going back pain as of the 1990s, that the Board finds provides sufficient basis to reopen. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, as new and material evidence has been received, the Board finds that the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Board finds that a remand is necessary to obtain a VA medical examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Vet has submitted August 2010 MRI results indicating the presence of DDD and spondylosis in the lumbosacral spine, which the Board finds to be competent medical evidence of a current disability. The Veteran contends that he initially hurt his back during his first period of service; unfortunately, the Veteran's complete STRs for his first period of service are unavailable. See December 2014 notification letter and March 2015 supplemental statement of the case (SSOC). Furthermore, review of the record indicates that the Veteran has not been provided with a VA examination to assess the nature and etiology of any back disability during the pendency of the present claim. In light of the presence of a possible disability and a plausible nexus to service, the Board finds that the "low threshold" requirement under McLendon, 20 Vet. App. 79 (2006), is met, and the Veteran should be afforded a VA examination. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's back disability. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All testing deemed necessary must be conducted. The examiner must opine on whether any back disability is at least as likely as not (a 50 percent probability or greater) etiologically related to (caused or aggravated by) an in-service injury, event, or disease. The examiner is asked to elicit from the Veteran a detailed history of his symptoms. In rendering the opinion, the examiner should address the Veteran's lay statements. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.