Citation Nr: 22012222 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-34 409 DATE: March 2, 2022 ORDER New and material evidence having been received, the claim for service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran's claim for a low back disability was previously denied through a December 1973 Disallowance (VA Form 21-523); the Veteran did not appeal that decision. 2. There is additional evidence received since the December 1973 rating decision that is not cumulative or redundant of the evidence of record at the time of that decision. CONCLUSIONS OF LAW 1. The December 1973 denial of service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.52, 20.103. 2. New and material evidence has been received to reopen the claim of service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for degenerative joint disease of the lumbar spine and muscle spasm, based on lack of evidence to show a current back disability or any residuals from an injury in service. In his February 2013 Notice of Disagreement, the Veteran disagreed with the decision, alleging an inadequate examination, and requested a Decision Review Officer (DRO) hearing. In April 2016, after discussing with his power of attorney at the time, the Veteran requested to cancel his DRO hearing and would attempt to get a medical opinion to support his appeal. In his July 2016 formal appeal to the Board, the Veteran requested a Board hearing, for which he was scheduled in July 2019, November 2019, April 2020, August 2020, September 2021, and November 2021, all of which were postponed at his request mostly due to his desire to obtain an attorney to represent him. He was once again scheduled for a hearing in January 2022, and he did not appear for the hearing. Although the record shows that he requested to postpone the hearing a day prior to the hearing to obtain an attorney for representation, as he did not contact VA at least two weeks prior to the hearing date and good cause is not shown as he once again requested to the postpone the hearing for the same reason as numerous previous postponements, the Board finds that the hearing request is considered withdrawn. See 38 C.F.R. § 20.704. Although in the January 2013 rating decision the Agency of Original Jurisdiction (AOJ) adjudicated the Veteran's service connection claim on the merits, the claim for a low back disability had previously been denied by VA; as this claim is docketed in the Legacy system, the Board is not bound by the AOJ's reopening of the claim and the Board must consider whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). The claim for service connection for a low back disability is reopened. In general, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual premise may not be considered. 38 U.S.C. § 7105. A claim in 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 decisionmakers, while "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 U.S.C. § 3.156(a). New and material evidence cannot be cumulative or redundant of 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. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of any previous determination by the RO, in a Legacy appeal, the Board must consider whether new and material evidence has been received to reopen a previously denied claim. Barnett v. Brown, 83 F.3d 1380, 1383 (1996). The Veteran's claim for service connection for a back disability was originally denied in a December 1973 Disallowance. The claims file shows VA notified the Veteran of its decision. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received, within a year following the decision. Thus, the December 1973 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.52, 20.1103. The December 1973 denial was based on the finding that the Veteran had no current back disability. The evidence considered at the time of the December 1973 decision included the Veteran's service treatment records and a September 1973 examination. While neither appear in the claims file with receipt dates indicating they were available at the time of the December 1973 decision, the December 11, 1973 Disallowance indicates a September 1973 examination and a December 12, 1973 notification letter indicates that the Veteran's service records were reviewed. Evidence added to the record since the December 1973 final decision includes VA treatment records, private medical records, a November 2012 VA examination report, and an October 2013 VA medical opinion. After reviewing the evidence of record, the Board finds new and material evidence has been received to reopen the Veteran's service connection claim for a low back disability. Significantly, the new evidence now contains diagnoses for the Veteran's low back. Because the Veteran's claim was previously denied due to the lack of evidence of having a continuing back disability, the private treatment records, as well as the VA examination report containing low back diagnoses relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Veteran's claim for service connection for a low back disability is reopened. REASONS FOR REMAND Service connection for a low back disability is remanded. The Veteran claimed he had a back injury which occurred in service in December 1972 and that his current disability or treatment began in 2004. See e.g., September 1973 claim, May 2011 claim. About three months after the Veteran separated from service in June 1973, in September 1973, he filed for a back disability, which was denied in a December 1973 Disallowance. The December 1973 Disallowance cited to a September 1973 examination, which is not available in the Veteran's current claims file and should be obtained for review. VA provided the Veteran an examination in November 2012. The November 2012 VA examiner wrote that there was no medical documentation of chronic lumbar conditions at any time. However, the associated VA medical opinion did not consider private treatment records showing the Veteran had been diagnosed with multiple back conditions including spinal stenosis aggravated by facet hypertrophy, lumbosacral sprain and strain, disc protrusions, muscle spasm, unspecified disorder of autonomic nervous system, lumbar radiculitis, lumbar disc displacement/herniation, myalgia, myositis, and fibro myositis. The Veteran provided a privately obtained medical opinion from June 2016 which stated that it is likely that the Veteran's chronic degenerative joint disease of the spine and knees are due to the injury he suffered while serving in the military in the 1970s. However, the opinion did not consider intervening motor vehicle accidents the Veteran was injured in from 2001 and 2004. VA obtained a medical opinion in October 2013 which said that trauma from motor vehicle accidents along with aging would be a most likely explanation for the Veteran's current low back condition but the time in military service which was discussed as muscle spasm would not be expected to have "the same or greater impact." However, while private medical records submitted on behalf of the Veteran show he injured his back during a March 2004 motor vehicle accident, records from 2007 show treatment primarily for the neck regarding the same. Additionally, the Veteran had claimed service connection in the 1970s for his back condition at that time, and has provided statements to a medical provider that he injured his back in service when he fell off a truck, which has not been addressed by a VA examiner. Therefore, a new medical opinion is needed. Records relevant to the Veteran's claim may be outstanding. In his May 2011 application, the Veteran indicated he received disability benefits from the Social Security Administration (SSA). A print screen regarding an SSA inquiry in the claims file shows the Veteran receives SSA benefits and the disability onset date is recorded as beginning in May 2007. Records in SSA's possession are potentially relevant to the Veteran's back disability with VA and should be obtained. Finally, the December 1973 Disallowance referenced a September 1973 examination which is not available for review in the claims file and should be associated with the record. The matter is REMANDED for the following action: 1. The AOJ should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 2. The AOJ should obtain and associate with the claims file the September 1973 examination referenced in the December 1973 Disallowance and any other documents that are relevant and/or have been considering in adjudicating the claim on appeal. 3. The AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his back not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate any outstanding records with the claims file. The AOJ should also secure any outstanding VA medical records that have not already been associated with the claims file. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disability that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back condition is related to his military service, to include any alleged injury therein. In rendering this opinion, the examiner should specifically consider the Veteran's claim from 1973 that he had a back disability from service, the Veteran's statement to his physician that he fell off of a truck in service injuring his back, the June 2016 private opinion, VA examinations/opinions from September 1973, November 2012, and October 2013, and the Veteran's history of motor vehicle accidents in 2001 and 2004 as potentially intervening causes or aggravating factors on an already existing disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's electronic claims file, or in the alternative, access to the electronic claims file, must be made available to the examiner for review. ARIF SYED Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.