Citation Nr: 21041294 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-30 144 DATE: July 8, 2021 REMANDED Entitlement to service connection for a lower back condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1981 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The Veteran previously submitted a claim of entitlement to service connection for a lower back which was denied in a February 1986 rating decision. This rating decision became final because and the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran's claim to reopen, he submitted additional lay statements and testified at a Board hearing regarding his claimed condition. The Veteran was additionally provided with an October 2016 VA examination. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that an August 2017 Supplemental Statement of the Case (SSOC) additionally addressed whether there was clear and unmistakable error (CUE) with the prior February 1986 rating decision. The claim seeking revision on the basis of CUE is a completely separate claim from entitlement to service connection and must be adjudicated by the RO in the first instance. Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that a CUE claim may be brought at any time and is premised upon an error in a prior final RO adjudication); Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (explaining that 38 U.S.C. § 5109A requires that a request for revision of a final RO decision on the basis of CUE be submitted to the RO for initial adjudication). An appeal consists of a timely Notice of Disagreement (NOD) submitted in accordance with the provisions of § 19.21 and either § 19.52(a) or § 20.501(a) of Title 38 of the Code of Federal Regulations, as applicable and, after a Statement of the Case (SOC) has been furnished, a timely Substantive Appeal. 38 C.F.R. § 19.20. Here, as stated, the VA has not issued a rating decision, nor received a NOD with regard to the Veteran's CUE claim. The Board does not have jurisdiction of this matter. The issuance of an SSOC does not vest the Board with jurisdiction as to any new issue. Indeed, the RO is only to issue an SSOC on material changes in or additions to the information included in the SOC and may not be used to announce decisions by the RO on issues not previously addressed in the SOC. See 38 C.F.R. § 19.31. Thus, the Board lacks jurisdiction over the matter of the Veteran's CUE claim. Lower Back While there is an October 2016 VA examination in the record for the Veteran's claimed lower back disability, the Board finds it to be inadequate. The October 2016 examiner opined that the Veteran's lower back disability was not etiologically related to his in-service reports of lower back pain. However, in proffering this opinion, the examiner relied mainly on the lack of treatment records from the Veteran's service to present day. During his October 2020 Board hearing, the Veteran reported that he had been experiencing lower back pain from service to present day. Additionally, the Veteran testified that he believed his lower back disability is etiologically related to his multiple in-service parachute jumps. While the October 2016 examiner noted that the Veteran's current lower back disability was not caused by his in-service paraspinal muscle spasms, the examiner did not offer an opinion regarding the combined effect of the Veteran's in-service jumps. As such, the Board finds it necessary to obtain an additional medical opinion to determine whether the Veteran's diagnosed lower back disabilities are etiologically related to service, to include as due to his in-service parachute jumps. The matters are REMANDED for the following action: Afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed lower back condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran's claimed lower back disability is at least as likely as not (a 50 percent probability or greater) etiologically related to his active duty service, to specifically include the combined effects of the Veteran's multiple parachute jumps and/or the reported back pain in the Veteran's service treatment records. For purposes of this opinion, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. Specifically, the examiner must comment on the Veteran's statements indicating that he has experienced lower back pain since service. Additionally, the Board draws the examiner's attention to the May 1985 Medical Evaluation Board and the June 1985 physical evaluation Board and month year medical evaluation Board which noted the Veteran was experiencing lower back pain in service. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner cannot merely rely on the lack of treatment records from service to present. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.