Citation Nr: 21041669 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 09-07 203A DATE: July 9, 2021 ORDER New and material having been received, the claim to reopen the previously denied claim of entitlement to service connection for a back disability is granted. REMANDED Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for a back disability is remanded. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for left lower extremity (LLE) peripheral neuropathy is remanded. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for right lower extremity (RLE) peripheral neuropathy is remanded. FINDINGS OF FACT 1. An August 2005 rating decision denied the Veteran's claim to reopen his previously denied claim of entitlement to service connection for a back disability; the Veteran did not appeal the decision and it became final. 2. New evidence added to the record since the August 2005 rating decision is material to the issue of entitlement to service connection for a back disability. CONCLUSION OF LAW 1. 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, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to October 1971 and from July 1974 to June 1975. He died in October 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board has recharacterized the Veteran's claims to more accurately reflect his contentions. 1. New and material having been received, the claim to reopen the previously denied claim of entitlement to service connection for a back disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing 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. 38 C.F.R. § 3.156(a). 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. Id. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). By way of history, the Veteran's claim to reopen a previously denied claim of entitlement to service connection for a back disability was denied in an August 2005 rating decision. The Veteran did not appeal the decision and consequently, the decision became final based on the evidence of record at that time. In February 2007, the Veteran again submitted a claim of entitlement to service connection for a back disability. The RO denied the claim in the October 2007 rating decision, finding that new and material evidence had not been received to reopen the claim. The Veteran timely appealed and perfected the appeal in March 2009. Thus, the issue is now before the Board. At the time of August 2005 rating decision, the evidence of record consisted of service treatment records, military personnel records, post-service treatment records, VA examinations, and statements from the Veteran. The pertinent evidence received since this time includes updated treatment records and the appellant's testimony taken at a Board hearing in February 2021. This evidence was not before adjudicators when the claim was last denied and is not cumulative or redundant of the evidence of record at the time of the August 2005 rating decision. The evidence also relates to an unestablished fact necessary to substantiate the claim of service connection and raises a reasonable possibility of substantiating that claim. Accordingly, the claim to reopen entitlement to service connection for a back disability is granted. REASONS FOR REMAND 1. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for a back disability is remanded. 2. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for LLE peripheral neuropathy is remanded. 3. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for RLE peripheral neuropathy is remanded. During his lifetime, the Veteran sought VA compensation under 38 U.S.C. § 1151 for a back disability and bilateral lower extremity (BLE) peripheral neuropathy. The appellant continues his claims. Unfortunately, the claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claims so that every possible consideration is afforded. The Veteran contended his disabilities were the result of a slip and fall that occurred during his participation in a VA vocational rehabilitation program in October 2004. He indicated that while training in a kitchen, he slipped on excess water and fell, injuring his back and legs. An October 2004 Vocational Counseling Report reflected that the Veteran reported falling in a puddle of water and feeling something pull in his back and left calf. He was instructed to report for a medical evaluation for whatever medical complaints he had at the time. The next day, the Veteran indicated his back was still sore since the fall. A December 2004 Vocational Counseling Report noted that the Veteran reported his leg had been hurting. He stated that he had difficulty with his legs upon waking up and had been overcompensating for his hurt leg since his fall in the kitchen. The Veteran reported difficulty with standing and walking. However, the evidence of record indicates that the Veteran had preexisting back and leg injuries prior to his October 2004 fall. In February 1981, the Veteran submitted a claim of compensation for back and "nerve" injuries as a result of being struck by a crosstie. A May 1980 VA treatment record reflected a diagnosis of lumbar strain. In February 1994, the Veteran again submitted a claim of compensation for a back injury incurred in 1980 while employed by a railroad. In an April 1995 VA examination, the Veteran reported he was not employed and living off of compensation he received from the railroad for his back injury. The VA examiner diagnosed chronic lower back pain, right knee pain, and left ankle pain. In August 1988, the Veteran attempted to reopen his claim of service connection for his back injury. An October 1998 VA examination reflected diagnoses of residuals of a back strain that was non-service-connected and mildly symptomatic, and left ankle and bilateral knee disabilities. A February 2003 x-ray of the lumbar spine showed degenerative changes. An October 2004 VA treatment record indicated that the Veteran had fallen in a kitchen as a VA Chapter 31 employee. He split his legs during the fall and his "only complaint" was muscle soreness in the lateral left calf and thigh with movement. In December 2004, the Veteran requested a release from his medical provider so he could move to another VA department. He reported that he experienced significant pain in both knees and was unable to stand for long periods. He had difficulties with his duties which involved washing pots and pans and activities involving pushing. Severe osteoarthritis of the bilateral knees was noted. A March 2005 VA treatment record noted that the Veteran had gained 20 pounds and had been having pain in the low back. He indicated he did a lot of lifting and bending in the file room. The Veteran was advised to lose weight. The clinician diagnosed low back ache with no neurologic deficit and poorly controlled diabetes. A November 2015 rating decision granted the Veteran service connection for diabetic neuropathy at 100 percent, effective July 20, 2015. To date, a medical opinion has not been obtained to address whether the Veteran's October 2004 fall during participation in a VA vocational rehabilitation program resulted in additional disability, specifically a back disability and BLE peripheral neuropathy. In light of the above, the Board finds that a remand of the claims for a medical opinion is warranted. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain medical opinions from an appropriate clinician regarding the Veteran's back disability, LLE peripheral neuropathy, and RLE peripheral neuropathy. The claims file and a copy of this remand must be made available to the examiner. The examiner should respond to the following: a) Was the Veteran's back disability as least as likely as not (50 percent probability or greater) caused or aggravated by the October 2004 slip and fall during his participation in a VA vocational rehabilitation program under Chapter 31? Please explain why or why not. b) Was the Veteran's LLE peripheral neuropathy as least as likely as not (50 percent probability or greater) caused or aggravated by the October 2004 slip and fall during his participation in a VA vocational rehabilitation program under Chapter 31? Please explain why or why not. c) Was the Veteran's RLE peripheral neuropathy as least as likely as not (50 percent probability or greater) caused or aggravated by the October 2004 slip and fall during his participation in a VA vocational rehabilitation program under Chapter 31? Please explain why or why not. In rendering the requested opinion, the examiner should address lay statements from the Veteran and appellant, as well as noted treatment records. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the appellant a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.