Citation Nr: 22013280 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-00 167A DATE: March 9, 2022 ORDER The petition to reopen the previously denied claim for service connection for a lumbar spine disability (previously denied as back condition) is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDING OF FACT An unappealed April 2014 rating decision denied entitlement to service connection for a back condition; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The April 2014 rating decision denying the claim for service connection for a back condition is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1982 to October 1982, with additional service in the Army National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days for the submission of supporting evidence. Evidence was subsequently submitted by the Veteran. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. The Veteran testified that he has a back disability due to injury incurred while serving in the Army National Guard. See Hearing Transcript (October 2021). The Board concludes that the April 2014 rating decision denying the claim for service connection for a back condition is final; and that new and material evidence has been received to reopen the claim. An April 2014 rating decision denied service connection for a back condition because the evidence did not show that the Veteran had a current diagnosis of a back disability that was incurred in or related to service. An April 2014 VA letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. As such, the April 2014 rating decision became final. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary 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). 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). In 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). Regardless of whether the AOJ found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence of record at the time of the April 2014 decision included service treatment records and VA treatment records. Evidence associated with the claims file since the prior final disallowance includes new and material evidence. Specifically, the Veteran provided testimony during his October 2021 Board hearing that his low back pain began during a period of active duty for training (ACDUTRA) in 2000. The Veteran testified that his low back pain was the result of an injury related to lifting artillery shells that weighed approximately 98 pounds. He also testified that he has experienced continuous symptoms since the initial lifting injury and sought private medical treatment and physical therapy. In addition, VA treatment records associated with the claims since the prior final disallowance reflect complaints of low back pain with radiculopathy and a July 2021 MRI reveals mild-moderate neural foraminal stenoses at L4-L5 secondary to a disc protrusion and degenerative facet changes. Lastly, private medical records and physical therapy notes were received showing the Veteran was seen for low back pain in July 2009 and August 2009 related to a lifting injury that occurred while on active duty a few years prior, and an MRI at the time revealed herniated nucleus pulposus. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. In this regard, there is evidence reflecting that the Veteran has a current lumbar spine disability that may be related to an in-service injury. This evidence was not previously considered by decision-makers and tends to support the Veteran's theory of entitlement and raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. It is noted that the threshold for reopening a claim is low. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disability is remanded. The Veteran, and his representative, contends that his current lumbar spine disability stems from an injury that occurred while on ACDUTRA while serving in the Army National Guard. Specifically, the Veteran argues that, in 2000, he sustained a low back injury as a result of lifting 98-pound artillery shells. He testified that there was a line of duty (LOD) determination for the back injury, and that he was referred to a private doctor immediately after the injury. Further, he reported he attended physical therapy for continuing low back pain following his service in the Army National Guard. See Hearing Transcript at 6-8, 10, 15-16, 20 (October 2021). For reasons explained below, the Board finds that remand is necessary. First, it appears that the Veteran's service treatment records associated with his service in the Army National Guard are not complete. In this regard, the Veteran testified that there was an LOD issued for his low back injury in 2000 and that he was referred to a private doctor for treatment following the low back injury. See Hearing Transcript at 8 (October 2021). However, while the record contains an August 2004 LOD determination for a torn ligament of the right wrist found to have been incurred in the line of duty while serving on inactive duty for training (INACDUTRA), there is no such record for a low back injury, nor are there any private treatment records related to a low back injury. As such, remand is necessary to obtain the Veteran's complete service records and medical records related to his service in the Army National Guard, including any LOD determination issued as a result of the Veteran's reported low back injury in 2000. Second, remand is necessary to obtain reasonably identified non-VA treatment records. During the hearing, the Veteran testified that he sought medical treatment, from 2000 to 2004, from a private provider and attended physical therapy after 2004. See Hearing Transcript at 10-11, 15-16 (October 2021). It is noted that the claims file contains some private medical records documenting diagnoses of lumbar degenerative joint disease, lumbar radiculitis, and lumbar stenosis dated in July and August 2009 related to a lifting injury during service, along with some physical therapy notes reflecting treatment for low back pain in 2009. Thus, remand is required to afford the Veteran an opportunity to authorize release of any relevant non-VA records to VA. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain the Veteran's complete service records and medical documents pertaining to his service in the Army National Guard from August 1982 to November 2004, to include any Line of Duty determination pertaining to his claimed back injury in 2000. Requests for Army National Guard records should be made to all potential repositories. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for non-VA medical providers seen for signs and symptoms related to his low back since service discharge, to include Dr. Carroll and Elite Physical Therapy. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's VA treatment records for the period from July 2021 to the Present. 4. Conduct any other development deemed necessary and readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.