Citation Nr: 22014796 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-42 627 DATE: March 15, 2022 ORDER New and material evidence having been received, the petition to reopen the previously-denied claim for service connection for degenerative arthritis and disc disease of the lumbar spine is granted. REMANDED Entitlement to service connection for degenerative arthritis and disc disease of the lumbar spine is remanded. FINDINGS OF FACT 1. In a decision dated in June 2009, the regional office (RO) denied the Veteran's claim of entitlement to service connection for pinched sciatic nerve in leg; he did not appeal this decision. 2. Additional evidence associated with the claims file since the June 2009 rating decision is not cumulative and redundant of the evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim for service connection for degenerative arthritis and disc disease of the lumbar spine, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2009 rating decision in which the RO denied the claim for service connection for pinched sciatic nerve in leg is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. §§ 3.104, 20.1103 (2021). 2. As evidence received since the June 2009 rating decision is new and material, the criteria for reopening the claim for service connection for degenerative arthritis and disc disease of the lumbar spine are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2003 to August 2003, from October 2003 to August 2004, and from January 2008 to January 2009, with additional service in the Michigan National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. As an initial matter, the Board observes that the Veteran filed a prior service-connection claim for pinched sciatic nerve in leg, that the regional office (RO) denied in a June 2009 rating decision. The RO originally denied the Veteran's service-connection claim for pinched sciatic nerve in leg in a June 2009 rating decision, in pertinent part based on findings that the Veteran had no pinched sciatic nerve disability. The Veteran did not appeal, nor did he submit new and material evidence within a year of the RO's decision. As such, the June 2009 rating decision is final. See 38 U.S.C. § 7105 (c) (2006); 38 C.F.R. § 20.1103 (2009). In relation to his April 2014 claim to reopen, the Veteran has submitted medical evidence showing complaints and treatment for a lumbar spine disability. See Medical Treatment Records, received March 2014. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156. The appeal is accordingly reopened. REASONS FOR REMAND The Veteran contends that he initially injured his lumbar spine during a National Guard drill in October 2002, as a result of unloading a truck, twisting incorrectly, and pulling his back muscles. The Veteran adds that, while in basic training, he reported numbness and tingling, believing at the time that he may be experiencing nerve damage. The Veteran notes that he was given muscle relaxers and pain killers, and he returned back to regular duty. The Veteran reports experiencing recurring pain. The Veteran also points to an incident, which aggravated his back during a deployment in Iraq in 2008, when he was running and his leg completely gave out on him and went numb. He contends that he reported this to the medics, but was not given treatment. The Veteran notes that he has experienced constant pain throughout this entire time. The Veteran's in-service report of medical assessment from December 2008 records the Veteran's back pain in connection with an injury, with sciatic nerve pain (noting that the Veteran declined an evaluation at the time and planned on following up per requested need). The Board notes that a February 2014 treatment record documents that the Veteran was currently in National Guard, that he was seen in past, that he received an epidural injection in October 2012, and that he had experienced twelve years of intermittent lumbar pain symptoms, which were progressively worsening. This record also documents that two summers prior, the Veteran's symptoms seemed to have worsened with marching, and with carrying forty pounds of equipment, and that while he was running in Iraq, the Veteran developed numbness on the right side of his body. The Board also notes that the Veteran underwent a laminectomy in May 2014. Pertinently, the medical history recorded by the Veteran's physician in the work-up to his surgery (also collected in May 2014) records that the Veteran experienced a sudden onset of lower back pain in October 2002, while he was participating in a drill at the National guard, unloading duffle bags. The medical history records that when he twisted his back, he continued with the drill and his pain increased. The medical history records that the Veteran is now experiencing intermittent pain along with bilateral leg discomfort, numbness, stiffness and weakness, right greater than left, that symptoms are improved with lying down and are heightened with bending, that the Veteran has tried epidural injections and physical therapy, which gave him some relief, and that he is currently taking ibuprofen over the counter, as needed. Although the Veteran was examined in August 2014 in connection with his claim, the examination is inadequate because it did not afford adequate consideration to the Veteran's contentions, attributing his back issues solely to his May 2014 surgery and incorrectly noting that the Veteran's service treatment records contain no documented history of back problems. Additionally, the Board recognizes that there may be relevant outstanding military personnel records and service treatment records that have yet to be associated with the Veteran's claims file. Specifically, there may be records relevant to complaints and treatment for a back condition pertaining to: (1) the Veteran's contention of an initial lifting injury in October 2002; (2) reports of numbness and tingling during basic training, also in 2002; and (3) a running injury in Iraq when the Veteran's leg gave out on him and went numb, in 2008. Although the Veteran's claims file contains records of his active duty service, the Veteran's claims file shows a number of training days in 2009, 2010, 2011, 2012 that may reflect active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) service. As such could be relevant to the Veteran's claim, VA's duty to assist includes obtaining relevant records pertaining to a Veteran's active service that are held or maintained by a government entity. On remand, the AOJ should take appropriate steps to verify all periods of service, of any kind, to include ACDUTRA and INACDUTRA. The matters are REMANDED for the following action: 1. Take all necessary steps to verify all of the Veteran's period(s) of active duty, ACDUTRA, INACDUTRA, Active Duty for Special Work (ADSW), and/or any other periods of service. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran's periods of service, including Active Duty, ACDUTRA, ADSW, and INACDUTRA, are required. If this information or documentation is unavailable this fact should be documented, and a formal finding of unavailability should be made with notice to the Veteran and his representative and they should be given an opportunity to respond. 2. Take all necessary steps to obtain all outstanding service treatment records associated with all periods of service for the Veteran, including those associated with his service in the Michigan National Guard. 3. Obtain a medical opinion from an individual who has not previously examined the Veteran's back, or provided a medical opinion addressing the etiology of the Veteran's back disability. Following a review of the record, the opinion provider should address the following questions: Is it at least as likely as not (approximately 50 percent probability) that any currently-diagnosed low back disability present had its onset during, or is otherwise related to, his active duty service? In offering any opinion, the examiner must acknowledge and consider: (a.) the Veteran's lay statements regarding in-service incurrence in 2002, aggravation in 2008, and continuous symptoms since service. (b.) the in-service report of medical assessment from December 2008, recording the Veteran's back pain in connection with an injury, with sciatic nerve pain. (c.) the February 2014 treatment record documenting that the Veteran was currently in National Guard, was seen in past, received an epidural injection in October 2012, had experienced twelve years of intermittent lumbar pain symptoms, which were progressively worsening; and also documenting that two summers prior, the Veteran's symptoms seemed to have worsened with marching, and with carrying forty pounds of equipment, and that while he was running in Iraq, the Veteran developed numbness on the right side of his body. (d.) the May 2014 work-up to the Veteran's May 2014 laminectomy surgery, recording that the Veteran experienced a sudden onset of lower back pain in October 2002, while he was participating in a drill at the National Guard, unloading duffle bags, and that this pain increased as the Veteran continued participating in the drill. A complete rationale must be provided for any opinion provided. It would be particularly helpful if the opinion provider could discuss whether the nature of the Veteran's current disability is consistent, from a medical perspective, with the narrative presented by the Veteran regarding the nature of injury. If so or if not, please explain why that is the case. If in the opinion of the reviewer responses cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 4. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.