Citation Nr: 21041494 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-63 699 DATE: July 9, 2021 ORDER New and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a low back condition; the claim is granted to this extent only. REMANDED Entitlement to service connection for a low back condition is remanded. FINDINGS OF FACT 1. An April 2000 rating decision denied the claim for entitlement to service connection for a low back condition; the Veteran did not complete a substantive appeal to that decision, and it is final. 2. Some of the evidence received since the April 2000 rating decision pertinent to the claim for service connection for a low back condition was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. An April 2000 rating decision that denied the claim of entitlement to service connection for a low back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the April 2000 rating decision is new and material, and the Veteran's claim for service connection for a low back condition is reopened. 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 September 1991 to October 1998, and from April to June 2003, to include service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. A transcript of the hearing has been associated with the record. Petition to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a low back disorder. The Veteran seeks to reopen his previously denied claim for entitlement to service connection for a low back condition. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claims, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A claim for entitlement to service connection for a low back condition was last denied in an April 2000 rating decision on the basis that there was no evidence of a current diagnosis of the back. Evidence received since the rating decision consists of multiple statements and testimony from the Veteran and medical treatment records. Medical evidence indicates the Veteran has a post-service impression of mechanical lower back pain and has repeatedly been seen and treated for chronic low back pain. In this case, the evidence obtained since the last final denial is new, as it was not previously associated with the record. It is also material because it raises a reasonable possibility of substantiating the claim. The Board determines that the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition is remanded. The Veteran asserts the November 1999 and July 2017 examinations are inadequate. Service treatment records (STRs) indicate that after a motor vehicle accident (MVA) in October 1994, the Veteran was noted to have a history of lower back pain (LBP) and the Veteran was assessed with back/lumbar strain. In February and June 1996, the Veteran reported shooting pains down the back, and he was assessed with mechanical LBP. In January 1997, the Veteran reported back pain greater than 10 years; pain between his shoulders and right lower back; stiffness in the morning, relieved with unloading and resting of his back; and standing and sitting aggravates his back pain. The Veteran's separation medical assessment from September 1998 noted no reports of LBP. A reserve entrance examination in February 2000 showed he claimed LBP. Private treatment records in March 1999 show the Veteran reported both of his big toes were numb, and he had pain in the lower left leg from his buttock, right calf, and in the upper back. VA treatment notes post service also indicate the Veteran has an impression of mechanical LBP with complaints of LBP radiating to the Veteran's bilateral lower extremities, and a history of syringomyelia, chronic back/neck pain, and bone marrow edema/L5-S1 vertebral bodies. See December 2016 and January 2017 VA treatment notes. The Veteran was afforded a VA examination in November 1999. The examiner opined that the Veteran's clinical and radiographic studies of the low back were entirely normal and that the low back complaints as treated during service completely resolved. The examiner did not address notations of muscular atrophy (mild) of the L-S back; the lifting injury diagnosed as muscle strain; recurrence of LBP; and the Veteran's complaints of occasional radiation of pain to the left lower extremity (LLE) all the way to the feet. In the July 2017 VA examination report, the examiner opined that the Veteran's upper back condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that there is no record of any upper back injury in service, and there is no history of continuous back pain since the injury in service. The examiner did not address the complaint of LBP in the February 2000 entrance examination report, complaints of LBP radiating to the Veteran's bilateral lower extremities, or the history of syringomyelia or chronic back pain noted in VA treatment records. Also, the examiner did not address whether the Veteran's low back condition or upper back condition was incurred in or caused by the MVA in October 1994 or the lifting injury in February 1996 during service. The Board finds the VA examinations to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Accordingly, another examination and opinion are necessary, and remand is warranted. Finally, the Veteran testified that he saw a civilian neurologist and neurosurgeon. These records are not associated with the claims file. On remand, these records should be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. Contact the Veteran to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers, to include, but not limited to, the private neurologist and surgeon referred by Fargo VAMC, who treated him from discharge until the present for his low back condition. With any necessary authorization from the Veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the Veteran which have not previously been secured. If any requested records cannot be obtained, inform the Veteran of the results of the requests for records and a negative response must be associated with the claims file. 2. Once the above development is complete, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's back condition. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should offer comments and an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current back condition had its onset in service or is otherwise etiologically related to an in-service injury, event, or illness. The examiner must address complaints and history of LBP in the October 1994 STRs; and complaints of "shooting pains down back, reported back pain greater than 10 years, pain between shoulders and right lower back; stiffness in morning, relieved with unloading and resting of back; and that standing and sitting aggravates back pain" in the February and June 1996 STRs. The examiner must address the February 2000 Reserve entrance examination where the examiner noted the Veteran's complaint of LBP. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries 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? All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Edwin B. Esmenda, 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.