Citation Nr: 21040298 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-12 521 DATE: July 3, 2021 ORDER The petition to reopen a claim of entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT A March 2016 rating decision last denied service connection for a back disability; evidence pertaining to the Veteran's back disability since the last final rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The March 2016 rating decision which denied the Veteran's claim for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. The evidence received since the last final March 2016 rating decision is new and material, and the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to April 1996. The Veteran testified before the undersigned Veterans Law Judge in March 2021. A copy of the transcript is of record. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. At the time of the last final denial of the Veteran's claim for service connection for a back disability in March 2016, evidence of record included service treatment records, VA and private treatment records, and a September 2013 VA examination and opinion. Evidence associated with the claims file since the previous March 2016 denial includes statements and testimony reflecting continued issues with the Veteran's back disability. The Veteran has additionally submitted a September 2018 buddy statement and an April 2017 speculative positive nexus opinion from the Veteran's treating physician. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for a back disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. A September 2013 VA back examination and opinion were provided. Unfortunately, it does not appear that the September 2013 VA examiner considered all of the Veteran's service treatment records reflecting treatment related to back pain. Specifically, the VA examiner acknowledged some treatment of the spine in service but incorrectly noted some of the dates of the in-service records. Service treatment records reflect that the Veteran was treated in April 1991, May 1991, March 1993, and then November 1993 for his back. The Veteran has submitted an April 2017 opinion from his VA treating neurosurgeon. He opined that it is unclear whether his L4-5 disk degeneration is the result of trauma or the accident while he was in the military. He stated that it is possible this may have resulted from the accident; however, it could also be from other causes or idiopathic. This speculative opinion is not adequate for adjudication purposes. The Veteran has also submitted a September 2018 statement from a fellow servicemember and a January 2011 statement from his wife attesting to his longstanding back issues. The Board notes that since the September 2013 VA medical opinion, there have been numerous medical records associated with the claims file pertaining to the Veteran's claim. This includes a more recent December 2016 VA treatment record reflecting that the Veteran has undergone recent back surgery. The Board finds that an additional VA examination and medical opinion are warranted. The matters are REMANDED for the following actions: The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed back disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should provide a well-reasoned opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's back disability had its clinical onset during his active duty service, within one year of service separation, or is otherwise etiologically related to his active service. In rendering this decision, the examiner must discuss the Veteran's in-service treatment for his back as well as his contentions regarding continuity of symptomatology. The examiner must also discuss the April 2017 opinion from the Veteran's VA treating neurosurgeon. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinion without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.