Citation Nr: 22015705 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 19-15 949A DATE: March 18, 2022 ORDER New and material evidence has been received and the claim for service connection for a low back condition is reopened. REMANDED Entitlement to service connection for a low back condition is remanded. FINDING OF FACT An August 2001 rating decision denying service connection for a chronic back condition is final, and the testimonial evidence received since that time is new and material. CONCLUSION OF LAW New and material evidence has been received and the criteria to reopen the matter of service connection for a low back condition, previously claimed as chronic back condition, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1978 to March 1979. He had further service in the Mississippi Army National Guard from September 1978 to September 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in February 2022. 1. Whether new and material evidence has been received to reopen the claim for service connection for a low back condition. The Veteran previously submitted a claim of entitlement to service connection for a chronic back condition which was denied in a June 2000 rating decision on the basis that the Veteran had not provided evidence linking his back condition to his military service. The June 2000 rating decision became final because the Veteran did not submit a Notice of Disagreement (NOD) or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). An August 2001 rating decision notes that the matter was readjudicated pursuant to the Veterans Claims Assistance Act of 2000 and again denied service connection on the basis that he had not provided evidence that he had a current back condition or that it was related to his military service. No NOD or new evidence was received during the appeal period and the August 2001 rating decision became final. The Board notes that military personnel records were received in June 2018. The Board considered whether these records are relevant, which would toll the finality of the June 2000 rating decision under 38 C.F.R. § 3.156(c). "Relevant" official service records under 38 C.F.R. § 3.156(c) are defined as records that both "speak to the basis for the VA's prior decision" and "tend to prove or disprove a material fact" or may "aid in substantiating the claim." Kisor v. Wilkie, 969 F.3d 1333, 1340-41 (Fed. Cir. 2020) (internal citations and quotation marks omitted. After reviewing the records, the Board finds that they do not speak to, or tend to prove or disprove, a fact or an issue contested in this matter. In other words, the records do not "tend to prove a fact that is of consequence" and, therefore, the Board concludes that they are not relevant as defined by 38 C.F.R. § 3.156(c). In connection with the Veteran's claim to reopen, he testified that he has had continuing back spasms ever since his June 1981 motor vehicle accident. See February 2022 Hr'g Tr. at 4. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND 1. Entitlement to service connection for a low back condition is remanded. The Veteran contends that his current low back disability is related to an injury he sustained in an automobile accident during a period of inactive duty training in June 1981. He testified that he has had recurrent low back problems, including pain and back spasm, since the in-service motor vehicle accident. Here, as VA has already acknowledged, the Veteran was involved in a motor vehicle accident and received significant treatment based on his low back symptoms shown in service. In addition, the service treatment records corroborate the Veteran's account that he was given pain medication in service to treat his low back problems. In addition, in its role as a finder of fact, the Board finds credible the Veteran's report that he received post-service care for his back disability but that the records of that treatment are no longer available, in part due to fire in the home of one of his relatives. In light of the above, the Board finds that the Veteran should be afforded a VA examination with the opportunity to obtain responsive etiological opinions, following a thorough review of the record, as to his claim for service connection for a low back condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Board notes that the record indicates the Veteran receives social security disability benefits for his low back. The Board further notes that the Veteran's complete service personnel records have not been associated with the record. As such, these records should be obtained upon remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the Mississippi National Guard. Verify all active duty for training and inactive duty training dates for alleged service in the Mississippi National Guard from 1981. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a. Does the Veteran have a back disability that is consistent with the trauma sustained in the documented in-service motor vehicle accident? b. Is the Veteran's low back disability at least as likely as not related to service, including an automobile accident? Provide a rationale to support the opinions. c. Is the low back disability at least as likely as not proximately due to service-connected left knee joint osteoarthritis, patellofemoral pain syndrome, and status post arthroscopy? d. Is the low back disability at least as likely as not aggravated by the service-connected left knee joint osteoarthritis, patellofemoral pain syndrome, and status post arthroscopy? The examiner must also assume as true that regardless of whether records are available the Veteran received post-service treatment for his back problems. In responding to these inquiries, the examiner must acknowledge and discuss the Veteran's competent report of having back problems since service and receiving treatment for back disability. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.