Citation Nr: 22011103 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 17-07 420 DATE: February 25, 2022 ORDER New and material evidence has been received to reopen a service connection claim for a back disorder. REMANDED Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. In an unappealed September 1978 rating decision, a Department of Veterans Affairs Regional Office last denied service connection for a back disorder. 2. The evidence received since the September 1978 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for a back disorder. CONCLUSIONS OF LAW 1. The September 1978 rating decision that last denied service connection for a back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2021). 2. New and material evidence has been received sufficient to reopen the claim of service connection for a back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from November 1974 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). The February 2017 appeal to the Board included the Veteran's request for a video-conference hearing. However, in October 2021, the Veteran, through his attorney, withdrew the hearing request, which the Board herein deems withdrawn. The attorney also requested that the Board wait the full 90 days from the docketing of this appeal prior to issuing a decision to allow for the submission of additional argument and evidence in support of the Veteran's appeal. See Correspondence from J. Dils received October 25, 2021; 38 C.F.R. §§ 20.1305(a). Pursuant to this request, the Board held the case in abeyance, during which time the representative submitted additional argument in support of the appeal. As the full 90-day period has elapsed without submission of additional evidence or request for an extension of time to do so, the Board now proceeds with appellate review of the claim. Petition to Reopen Previously Denied Claim of Service Connection for Back Disorder Rating decisions are final, and binding, based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an AOJ decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. In a legacy claim (a claim not appealed under the new Appeals Modernization Act) such as this one, an exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). 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." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a September 1978 rating decision, the AOJ denied the Veteran's original claim of service connection for a back disorder, concluding that while the service records showed that the Veteran was placed on a temporary profile for back strain, x-rays were negative, and because there was no evidence of a chronic disorder, the claim was denied. See Rating Decision dated September 5, 1978. The Veteran did not appeal the September 1978 rating decision, nor was new and material evidence received within a year of issuance of the September 1978 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In January 2016, the Veteran sought to reopen his service connection claim for a back disorder. In a February 2016 rating decision, the AOJ reopened the prior claim and found that service connection is not warranted, citing an unfavorable February 2016 VA medical opinion that attributed the Veteran's currently diagnosed back disorders to age rather than an in-service injury. See Rating Decision dated February 27, 2016. The Veteran timely submitted a NOD and perfected an appeal to the Board, and the instant appeal ensued. Based on the procedural history of the case, the last final decision pertinent to the Veteran's claim of service connection for a back disorder was the September 1978 rating decision. Evidence of record at that time included the Veteran's April 1978 service connection claim and his service treatment records. Evidence received since the prior denial of the claim in September 1978 includes the Veteran's January 2016 service connection claim, private and VA treatment records, service personnel records, the February 2016 VA examination report and medical opinion, and the May 2016 NOD that includes the Veteran's competent statement describing an in-service injury and symptoms that have persisted since that time. Accordingly, new and material evidence has been received, and to this extent only, the claim of service connection for a back disorder. REASONS FOR REMAND Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Veteran was afforded a VA examination in February 2016. The VA examiner opined that the Veteran's lumbar degenerative disc disease (DDD) and lumbar degenerative joint disease (DJD) are less likely than not related to service. While acknowledging an April 1975 separation examination report including the Veteran's handwritten notation that he hurt his back, the examiner found no evidence of a chronic lumbar spine disorder in service, explaining that at separation, x-rays were negative, the Veteran had good range of motion, his low back pain was only mild in nature, and there was no need for further treatment, which demonstrated that the lumbar sprain in service was acute and the low back pain was episodic and did not result in a chronic spine disorder. Additionally, the examiner concluded that there is no evidence of post-service treatment for back pain or a chronic back disorder until many years after service, and that the degenerative changes affecting the Veteran's spine are typical of changes seen due to the aging process. See VA Medical Opinion dated February 25, 2016. The Board finds deficiencies in the February 2016 VA opinion. The VA examiner did not acknowledge evidence of record of continuing back pain such as the Veteran's April 1978 service connection claim in which he endorsed a back strain or the July 2010 Social Security Administration examination reflecting the Veteran's complaint of back pain he said prevented him from working. In this regard, the VA examiner failed to adequately consider the lay statements of record regarding the onset and continuity of the Veteran's back symptoms. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The result is that the VA examiner did not consider an accurate depiction of the Veteran's medical and lay history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). On appeal, the Veteran, through his attorney, asserts "that he had sporadically undergone chiropractic treatment for back pain throughout the years," but that records of such treatment have not been located. See Correspondence from J. Dils received January 25, 2022. The Veteran's attorney challenges the adequacy of the February 2016 opinion on this basis, noting that a gap in medical treatment records is not a definite indication that the Veteran did not have symptoms during that time. Id. Indeed, the absence of evidence of treatment is not, in and of itself, dispositive in the question of a nexus between a disability and military service). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, a remand is necessary to obtain an addendum VA opinion to address these deficiencies. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c); Barr, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran and invite him to provide information regarding all outstanding non-VA medical treatment, including chiropractic treatment, for back symptoms, providing him with appropriate VA authorization and consent forms for this purpose. Also advise the Veteran that he may submit such records if he so chooses. Allow a reasonable time for reply. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). All correspondence and forms in this regard shall be associated with the electronic claims file. 3. Then, obtain an addendum opinion from an appropriately qualified VA examiner as to the etiology of the Veteran's back disorders. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed back disorders that have been present at any point since the commencement of the claim period in January 2016. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed back disorders onset during service, manifested within one year after service separation, or are otherwise etiologically related to service, to include the in-service back sprain/strain noted in the service treatment records in 1975. *Although the examiner must review the entire claims file, the examiner is requested to consider potentially relevant evidence of record, including, but not limited to, the Veteran's lay statements regarding a post-service back disorder and/or treatment thereof as reflected in his 1978 VA claim for compensation, the 2010 Social Security Administration claim and examination, and the January 2022 correspondence from the Veteran's representative reflecting the Veteran's assertion of sporadic chiropractic treatment for back pain throughout his post-service years. *The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions provided. 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 5. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.