Citation Nr: 21041449 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-45 447 DATE: July 9, 2021 ORDER The claim for service connection for a lumbar spine disability is reopened. REMANDED Service connection for degenerative changes of lumbar spine (claimed as lower back condition), to include as secondary to service-connected knee pain is remanded. FINDING OF FACT A May 2014 rating decision addressed the claim of service connection for a lumbar spine disability and became final; evidence submitted since that time is new and material to this issue. CONCLUSIONS OF LAW 1. A May 2014 rating decision that denied service connection for a lumbar spine is a final and binding determination on the evidence then of record. 38 U.S.C. § 7105. 2. New and material evidence has been received since the May 2014 rating decision that denied service connection for lumbar spine disability and the claim is reopened. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 2005 to November 2009. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was originally denied in May 2014. The Veteran was notified of the decision and did not appeal within the allotted time. Thus, the May 2014 rating decision became final. In February 2016, the Veteran filed a petition to reopen the claim for service connection for degenerative changes of lumbar spine (claimed as lower back condition). The RO denied the petition in March 2016 rating action and June 2017 statement of the case (SOC), and the Veteran filed his NOD on July 2016. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision makers. 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 substantiating the claim. 38 C.F.R. § 3.156(a). The evidence of record at the time of the May 2014 rating decision included service records and VA examination and outpatient records. The RO denied service connection because there was no evidence of degenerative changes of lumbar spine (claimed as lower back condition) during service. The Veteran was notified of this denial on May 23, 2014. He did not appeal this decision. Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the time of the May 2014 rating decision, additional relevant evidence, to include testimony of in service event or disease, medical nexus and that this degenerative changes of lumbar spine (claimed as lower back condition) is secondary to service-connected knee pain, have been added to the e file. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for degenerative changes of lumbar spine (claimed as lower back condition), to include as secondary to service-connected knee pain is reopened. REASONS FOR REMAND 1. Service connection for degenerative changes of lumbar spine (claimed as lower back condition), to include as secondary to service connected knee pain. The Veteran contends that his back disorder is due to his military service or is secondary to his service-connected knee disorders. On February 2021 the Veteran had a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Veteran testified that his back disorder is due to his military service. He also contends that his back disorder is secondary to his service connected knee disabilities. The Veteran's lay statements about his military service were not considered by the May 2018 VA examiner. The Board sincerely regrets the further delay but finds that a remand is necessary in this appeal to afford the Veteran every possible consideration. The record reveals evidence supportive of a back disability. Additionally, the Veteran has asserted secondary service-connection due to his knee disabilities. However, the record does not reveal that the Veteran has been provided an examination with opinion determining whether his back disorder is secondary to his knee disorders. The Board notes that the Veteran was granted service connection for knee disabilities in a September 2010 rating decision. However, a secondary opinion has not been obtained in connection with the back disability claim. As such, the duty to assist attaches to this appeal and a remand for examination is required before the claim for service connection for a back disability can be adjudicated by the Board. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his back disorder. The examiner should consider the Veteran's lay statements. The examiner should confirm any back diagnoses and then opine on the following: a) What is/are the Veteran's back disorder(s)? b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed back disorder was proximately due to his service? c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed back disorder was proximately due to his service-connected knee disorders? d) Is it at least as likely as not (50 percent or greater probability) that any back disorder was aggravated by his service-connected knee disorders? A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ottley III 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.