Citation Nr: 22016833 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 09-00 140 DATE: March 23, 2022 ISSUES 1. Entitlement to service connection for a kidney disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for traumatic brain injury (TBI). 4. Entitlement to a disability rating in excess of 30 percent prior to July 13, 2011, in excess of 50 percent for the period from July 13, 2011, and April 24, 2013, and in excess of 70 percent thereafter, for service-connected anxiety disorder. 5. Entitlement to an effective date earlier than April 13, 2005, for the grant of entitlement to service connection for lumbar disc disease. ORDER Entitlement to service connection for a kidney disability has been withdrawn. Entitlement to service connection for a cervical spine disability is granted. Entitlement to a disability rating in excess of 30 percent prior to July 13, 2011, in excess of 50 percent for the period from July 13, 2011, and April 24, 2013, and in excess of 70 percent thereafter, for service-connected anxiety disorder has been withdrawn. Entitlement to an effective date earlier than April 13, 2005, for the grant of entitlement to service connection for lumbar disc disease is denied. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. In a November 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a Decision in the appeals, the Veteran agreed before the Veterans Law Judge to withdraw the issues of entitlement to service connection for a kidney disability, and entitlement to a disability rating in excess of 30 percent prior to July 13, 2011, in excess of 50 percent for the period from July 13, 2011, and April 24, 2013, and in excess of 70 percent thereafter, for service-connected anxiety disorder. 2. The Veteran's cervical spine disability is at least as likely as not due to his active-duty service. 3. The Veteran's claim for entitlement to service connection for a low back disability was denied in a rating decision from May 20, 1981. He did not file a Notice of Disagreement (NOD) within one year, and that rating decision became final. 4. On April 13, 2005, VA received the Veteran's request to reopen his previously denied claim of entitlement to service connection for a low back disability, which was subsequently granted. 5. The additional service treatment records from the National Personnel Records Center, dated July 2010, are not "relevant" for the purposes of 38 C.F.R. § 3.156(c), because they do not speak to an element in dispute, and therefore do not affect the outcome of the original April 1981 claim for entitlement to service connection. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of the issues on appeal of entitlement to service connection for a kidney disability, and entitlement to a disability rating in excess of 30 percent prior to July 13, 2011, in excess of 50 percent for the period from July 13, 2011, and April 24, 2013, and in excess of 70 percent thereafter, for service-connected anxiety disorder have been met. 38 U.S.C. § 7105(B)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to an effective date earlier than April 13, 2005, for the award of service connection for lumbar disc disease have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400(q), (r), 3.156 (c); Kisor v. McDonough (Kisor IV), 995 F.3d 1347 (Fed. Cir. 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2007 and October 2010 rating decisions, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was originally denied entitlement to service connection for a low back disability in a May 1981 rating decision. The Veteran did not immediately file a Notice of Disagreement (NOD) and that decision became final. The Veteran filed a claim to reopen the low back claim in April 2005, which was again denied in a rating decision from December 2007 because the evidence submitted was not new and material. That same rating decision denied the Veteran's other claims for entitlement to service connection for a kidney disability, a bilateral hearing loss disability, a cervical spine disability, residuals of a head injury (traumatic brain injury (TBI)), residuals of a left clavicle injury, and sciatica. The Veteran filed a timely NOD for each of those claims, and they were eventually certified to the Board. A rating decision from October 2010 granted the Veteran entitlement to service connection for an anxiety disorder. The Veteran filed a timely NOD with the disability rating for the service-connected anxiety disorder, and that claim was eventually merged with the Board appeal. In November 2011, the Veteran then appeared in a Board hearing before a Veterans Law Judge who is no longer at the Board. In a Board Decision from March 2012, the Board denied entitlement to service connection for a bilateral hearing loss disability. The remainder of the service connection claims were then remanded for further development and adjudication. The Veteran was notified that the Veterans Law Judge who presided over the hearing in November 2011 was no longer employed by the Board, at which point the Veteran was offered a new hearing. The Veteran agreed to have a new hearing before the undersigned Veterans Law Judge, addressing each issue on appeal. Transcripts of the hearings are associated with the claims file. In a rating decision from August 2015, the RO granted the Veteran's claim of entitlement to service connection for lumbar disc disease (claimed as low back disability), with an effective date of May 16, 2007. The Veteran's claims then returned to the Board in October 2015. The Board determined that the issue of entitlement to service connection for a low back disability had been granted, and thus was no longer before the Board. Entitlement to service connection for a kidney disability, residuals of TBI, a left shoulder disability, a cervical spine disability, and the increased ratings claim for the service-connected anxiety disorder, were each remanded. A subsequent rating decision from January 2016 changed the effective date of the grant of service connection for the low back disability to April 13, 2005. In May 2016, the Veteran filed a NOD with the effective date of that award. That claim was separately appealed to the Board. A rating decision from November 2016 granted the Veteran entitlement to service connection for left shoulder partial dislocation with left tender sternoclavicular joint and minimal cosmetic deformity (a left shoulder disability), at a 20 percent disability rating, effective May 16, 2007. As the grant of entitlement to service connection represents a full grant of the prior issue on appeal, the Board finds that entitlement to service connection for a left shoulder disability is no longer before the Board. Prior to the claims returning to the Board, the Veteran again indicated his desire for another hearing. In November 2021, he was given another hearing before the same Veterans Law Judge who conducted the second hearing. The transcript of that hearing is associated with the claims file. As the Veteran had two separate appeal streams under the Legacy system, and each contained issues that were addressed by during the November 2021 hearing, the appeals streams were merged. As it relates to those issues that were remanded in October 2015, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Each of the issues currently on appeal have returned to the Board, as identified on the title page. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to service connection for a kidney disability; and entitlement to a disability rating in excess of 30 percent prior to July 13, 2011, in excess of 50 percent for the period from July 13, 2011, and April 24, 2013, and in excess of 70 percent thereafter, for service-connected anxiety disorder. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. The Veteran was granted a Board hearing most recently in November 2021 before the undersigned Veterans Law Judge. During this hearing, the Veteran's Representative requested that the issues of entitlement to service connection for a kidney disability, and entitlement to a disability rating in excess of 30 percent prior to July 13, 2011, in excess of 50 percent for the period from July 13, 2011, and April 24, 2013, and in excess of 70 percent thereafter, for service-connected anxiety disorder both be withdrawn. The Veterans Law Judge confirmed that was the desire of the Veteran. Thus, entitlement to entitlement to service connection for a kidney disability, and entitlement to a disability rating in excess of 30 percent prior to July 13, 2011, in excess of 50 percent for the period from July 13, 2011, and April 24, 2013, and in excess of 70 percent thereafter, for service-connected anxiety disorder have been withdrawn by the Appellant. Accordingly, these matters are dismissed. 2. Entitlement to service connection for a cervical spine disability. The Veteran has claimed that his cervical spine disability is due to his active-duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Turning to the criteria for entitlement to service connection, the Veteran has a current diagnosis. A VA examination from September 2019 indicated that the Veteran had a current diagnosis of a cervical spine disability, to include degenerative disc disease. The Veteran's claims file also contains a private treatment record from the Veteran's physician, submitted in November 2021, which notes that the Veteran has a cervical spine disability. As such, the Board finds that the Veteran has a current diagnosis of a cervical spine disability, and he has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.303(a). Turning to the second criteria, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing, most recently in November 2021. During the Board hearing, the Veteran testified that he injured his neck while in service when his vehicle rolled over. He testified that "the jeep overturned, and I was knocked out and hit hard in the head." He further stated that he injured his lower back, his shoulder, and his neck, because "when I went upside down, it just jackhammered me right into the ground." He stated that, at the time, the attention in medical records was given towards his shoulder and lower back because those injuries were more serious, but that he had also injured his neck. The Veteran is competent to report the symptoms he experiences, such as those associated with his neck disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed the Veteran's claims file, to include his service treatment records. An entry from July 1970 states that the Veteran had complained of a swollen back after he was in the hospital, following an auto accident. The note states that the Veteran was hit "on head and back in car accident." An earlier treatment record, associated with the claims file in July 2010 from the National Personnel Records Center (NPRC), states that the Veteran was seen in July 1970 at the 95th Evacuation Hospital, following a car accident. He was noted to have hit his head and that he had injuries to his lower back. While the Board notes that an injury to the cervical spine is not mentioned, the Veteran has provided competent testimony that he injured his neck during the same vehicle accident which occurred during his active-duty service. The Board has confirmed that that accident took place, and also that the record states he injured his head and his back. As such, the Board finds that the in-service injury has been confirmed, and the Veteran has met the second criteria for entitlement to service connection. 38 C.F.R. § 3.303(a). Turning to the final criteria, the Board initially notes that the Veteran's claim has been to the Board twice before. In March 2012, the Board determined that all prior VA examinations, to include their etiological opinions, were inadequate, as they did not consider the July 2010 NPRC record, which was associated with the claims file after they were each rendered. Then, in October 2015, the Board determined that an April 2013 VA examination was inadequate, as it had not fully considered the Veteran's claims file. As such, the claim was remanded for a VA examination. That VA examination occurred in September 2019. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis of a cervical spine disability and noted his reports about a "jeep accident while in the military." Following clinical testing, the examiner denied that the Veteran's cervical spine disability was at least as likely due to his active-duty service. The examiner stated that the service treatment records are completely silent for any type of neck pain. They acknowledged the head injury and his subsequent hospitalization. They then noted that "both entrance and exit examination are negative for any report of neck pain." They then further reasoned that the first evidence of a neck disability was in approximately 2004, many years after the Veteran's jeep accident. As such, a negative etiological opinion was provided. The Veteran's claims file also includes a private physician note from November 2021. The examiner stated that the Veteran's claims file was reviewed, and specifically noted the service treatment records and medical history of the Veteran's cervical spine disability. The examiner opined that the cervical disability was "at least as likely as not incurred in and caused by the claimed in service injury from a vehicle roll over in Vietnam." The examiner then provided an extensive rationale, discussing the spine injury from July 1970, including the updated NPRC report from the 95th Evacuation hospital. They also discussed the diagnosis at the time of that accident to be confirmed as a cerebral concussion. They then opined that the cervical disability was at least as likely as not due to that accident that also caused the lumbar spine disability, for which the Veteran is currently service connected. The examiner then cited to medical literature, which stated that "it is highly likely that individuals who experience the G forces to sustain a concussion will also experience cervical spine injury." As such, a positive etiological opinion was rendered. There is no evidence that the VA examiner or the private physician were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran's cervical spine disability is at least as likely as not due to his active-duty service. To begin, the Board has confirmed that the Veteran has a current diagnosis of a cervical spine disability, and his in-service injury of the jeep accident has also been confirmed. He has provided competent testimony that, although the service treatment records only note that he hit his head and his lower back, his neck was also impacted from the hit. The Veteran's claim file has two etiological opinions that speak to this, and each has been afforded significant probative weight. The negative etiological opinion from September 2019 provided a detailed rationale that considered the Veteran's lay statements, as well as his service treatment records. The positive etiological opinion from November 2021 had the benefit of the Veteran's testimony, cited to medical literature on cervical injuries, and noted the specific in-service jeep accident from July 1970. As such, the Board has one positive etiological opinion, and one negative etiological opinion, and each have been given significant probative weight. As such, the Board finds that the evidence is not persuasively against finding in favor of the claim, because it is in approximate balance. As such, affording the Veteran the benefit of the doubt, his cervical spine disability is at least as likely as not due to his active-duty service. The Veteran has therefore met the third and final criteria for entitlement to service connection. 38 C.F.R. § 3.303(a). Thus, entitlement to service connection for a cervical spine disability is granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to an effective date earlier than April 13, 2005, for the grant of entitlement to service connection for lumbar disc disease. The Veteran has claimed that he is entitled to an effective date earlier than April 13, 2005, for the grant of entitlement to service connection for lumbar disc disease (previously claimed as a low back disability). See generally August 2016 Correspondence. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a). Specifically, under 38 C.F.R. § 3.400 (q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400 (r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). The Veteran contends that an effective date prior to April 13, 2005, is warranted for the award of service connection for lumbar disc disease based upon 38 C.F.R. § 3.156 (c). Specifically, he argues that new and relevant service department records have been received since the initial adjudication of this claim, and that the claim should have been reconsidered, instead of reopened, under 38 C.F.R. § 3.156 (c). Under 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file "relevant" official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will "reconsider" the claim de novo. See 38 C.F.R. § 3.156(c)(1). In such instance, the Veteran is not required to provide new and material evidence to reopen the claim under 38 C.F.R. § 3.156(a). If upon reconsideration, VA makes an award based "all or in part" on these newly associated service department records, the assigned effective date will be "the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3); see Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011) ("[A] claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim."). However, "reconsideration" of a claim under 38 C.F.R. § 3.156(c)(1) does not necessitate the assignment of an effective date under 38 C.F.R. § 3.156(c)(3). Jones (Florence) v. Wilkie, 964 F.3d 1374, 1379-80 (Fed. Cir. 2020). To qualify for an earlier effective date under 38 C.F.R. § 3.156(c)(3), the award of benefits need not be based "solely" on the new service department records but must be based "at least in part" on service department records that were not before the VA at the time of the initial denial of the claim. Flores-Vazquez v. McDonough, 996 F.3d 1321 (Fed. Cir. 2021). "In this sense", the Court has said of the operation of § 3.156(c), "the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted." Vigil v. Peake, 22 Vet. App. 63, 6667 (2008). Therefore, if a claim is "reconsidered" under 38 C.F.R. § 3.156(c), the claim will be treated as though the prior RO or Board denial never occurred. The point of the § 3.156(c) provisions is to put veterans in the positions they would have been had VA obtained and considered relevant service department records before adjudicating their earlier claims. See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). Under such circumstances, the claim is not treated as a new and material evidence claim (see § 3.156(a)), or a clear and unmistakable error ("CUE") claim (see § 3.105(a)), but rather, is governed by § 3.156(c). The Board finds that a discussion of the procedural history of the Veteran's claim is necessary for a determination of his claim, in addition to what has been described in the introduction. Again, the Veteran filed an original claim for entitlement to service connection for a low back disability, which VA received on April 14, 1981. A rating decision from May 1981 denied that claim, and the Veteran was notified via correspondence on June 1, 1981. He did not immediately file an appeal, and his claim therefore became final. The Veteran then submitted Social Security Administration records on April 13, 2005, which the VA considered evidence of an intention to file a new claim for service connection for the low back disability. The claim was denied in December 2007, as new and material evidence had not been received to reopen the previously denied claim. He filed a timely NOD in February 2008, and his claim was eventually certified to the Board. On October 21, 2011, VA received service treatment records (STRs) from the National Personnel Records Center (NPRC). The NPRC correspondence is dated July 15, 2010. The attached STR details an in-service complaint of lumbar spine pain following a car accident, and that the Veteran was seen by the 95th Evacuation Hospital. The Board then remanded that claim in March 2012. A subsequent rating decision from August 10, 2015, granted entitlement to service connection for lumbar disc disease, effective May 16, 2007. The Veteran was notified of this rating decision in October 2015. He filed a timely NOD in October 2015, stating that he disagreed with the effective date of the initial grant of service connection, and that it should be in 1981 the date of his original claim. A rating decision from January 2016 denied the Veteran's effective date claim, and he appealed that claim to the Board. A subsequent rating decision from September 2017 changed the effective date of the award of service connection to April 13, 2005, the date that they received the Veteran's claim to reopen the previously denied claim. The Veteran then testified before the undersigned in November 2021. The Veteran, with assistance from his Representative, has argued that under 38 C.F.R. § 3.156 (c), the claim should not have been considered "reopened" in the August 2015 rating decision, because the basis for the subsequent grant of service connection hinged on the NPRC records, submitted in October 2011, from the 95th Evacuation Hospital. They argue, that since these records were "relevant" official service department records that existed and had not been associated with the claims file when VA first decided the claim in May 1981, VA should "reconsider" the claim de novo. This would mean that the Veteran was not required to provide new and material evidence to reopen the claim under 38 C.F.R. § 3.156(a), and his effective date would essentially be back to the original date of claim, April 14, 1981. See 38 C.F.R. § 3.156(c). Considering the Veteran's argument, the Board does agree that the record has been updated to reflect additional records from the NPRC, dated July 15, 2010. The Board has reviewed the Veteran's claims file, to include his service treatment records that were in the claims file at the time of the May 1981 rating decision. The records submitted by the NPRC from the 95th Evacuation Hospital, indicating a vehicle accident and complaints of lumbar spine pain were not available at the time. The Board had already determined this in its prior remand from March 2012, however the Board has again reconfirmed this to be the case. To be sure, service treatment records available at that time do indicate that the Veteran was involved in a car accident in July 1970, and that he injured his back. However those records were from a few days following the 95th Evacuation Hospital records, which again, were not in the claims file at the time. Having said that, the Board's attention now must turn to the reasons and bases provided in the rating decision from May 1981. The rating decision denied the Veteran entitlement to service connection for "residuals of back injury." In relevant part, the rating decision found that Records dated 07-11-1970 show he was struck on the head and back in a car accident four days previously and complaints of back pain on standing along with dysuria. Examination revealed no tenderness over the vertebrae and there was good range of motion. There were some muscle spasms. He was put on profile for possible kidney injury. on 07-21-1970 there were no urinary symptoms. The separation examination did not show findings of the claimed disability ... a report from his doctor dated 01-19-1977 shows that in April 1974 the Veteran fell into a manhole while he was working and injured his right leg and back. X-ray showed a probable un-united fracture of the facet of L-5 on the right. Subsequent review shows a spondylosis at L-5 rather than a facet fracture. That report showed a history of back injury in 1970. The report on 04-25-1977 shows the Veteran was doing fairly well The evidence indicates the Veteran received a minor back injury during service with no permanent residuals shown. He reinjured his back after service. Examination showed a C or D condition of the back. Importantly, the Board is reminded that under 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file "relevant" official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will "reconsider" the claim de novo. See 38 C.F.R. § 3.156(c)(1). The Board finds that this case hinges on whether or not the service treatment records from the NPRC, dated July 2010, were "relevant" for the purposes of 38 C.F.R. § 3.156(c). The regulation identifies "relevant" service department records as service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. 38 C.F.R. § 3.156(c)(1)(i). Thus, the mere receipt of additional service department records is not enough to trigger reconsideration; the records must be "relevant." To be "relevant" for purposes of reconsideration under 38 C.F.R. § 3.156(c)(1), the new service record must address a factual issue that was dispositive against the veteran in the prior VA adjudication, i.e., speak to an element in dispute, and therefore affect the outcome of the case. Kisor v. McDonough (Kisor IV), 995 F.3d 1347 (Fed. Cir. 2021). In consideration of the above, the Board finds that the July 2010 NPRC service treatment records are not "relevant" to trigger reconsideration under 38 C.F.R. § 3.156(c). While they are newly acquired STRs from the 95th Evacuation Hospital, which describe a vehicle accident whereby the Veteran complained about low back pain, the May 1981 rating decision still considered that treatment record from other available service treatment records that were within the Veteran's claims file at the time of the decision. The records from the 95th Evacuation Hospital simply speak to the same vehicle accident and indicate that the Veteran had complained of low back pain. These records are ultimately duplicative of records that were available elsewhere in the claims file. Importantly, considering the definition of relevance, the new service record does not address a factual issue that was dispositive against the Veteran in the May 1981 decision. The fact that he was in a car accident in July 1970 and that he complained of low back pain was not an "element in dispute." The Veteran's claim was denied in May 1981 after the rating officials considered the Veteran's subsequent work-related back injury as the likely cause of the Veteran's back disability and noted that there was in-service evidence of having "no permanent residuals" following the vehicle accident in relation to his low back. Thus, the specific records from the 95th Evacuation Hospital, while they are new, do not speak to an element in dispute. The additional record of an in-service vehicle accident is duplicative, in that it references an accident that was already acknowledged by the rating officials. Therefore, it would not affect the outcome of the rating decision, and it is not "relevant" for the purposes of 38 C.F.R. § 3.156(c)(1). See Kisor IV, Id. As such, the Board finds that he is not entitled to an effective date earlier than April 13, 2005, for the grant of entitlement to service connection for lumbar disc disease. 38 C.F.R. § 3.156(c)(1). The Veteran's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied, or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for traumatic brain injury (TBI) is remanded. The Veteran has argued that his claimed traumatic brain injury (TBI) is due to his active-duty service. The Veteran most recently testified before the undersigned Veterans Law Judge in November 2021. During the Board hearing, the Veteran testified that his current symptoms may be related to TBI, and that they were likely caused by his in-service jeep accident. As noted above, the Veteran testified that, when his jeep rolled over during service, he injured his head, and was concussed. He then testified that, after the accident he "woke up in the hospital," not having remembered the accident itself. The Veteran is competent to report the symptoms he experiences, such as those associated with his TBI. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As noted in prior sections of this Decision, the claim was previously before the Board. In March 2012, the Board determined that all prior VA examinations, to include their etiological opinions, were inadequate, as they did not consider the July 2010 NPRC record, which was associated with the claims file after they were each rendered. An October 2015 Board Decision also determined that an April 2013 VA examination was also inadequate, as it had not fully considered the Veteran's claims file. Since that time, the Veteran has not been given another VA examination to determine the nature and etiology of his claimed TBI. The Veteran's private physician did not include an examination or nexus opinion related to the Veteran's claimed TBI. Regardless, the Veteran has provided more detailed testimony in a Board hearing from November 2021, which directly discusses his claimed TBI, and provides more details about how he injured his head in service. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Following the completion of Step 1, forward the Veteran's claims file to an appropriate clinician for a VA examination, to determine the nature and etiology of the Veteran's claimed TBI. The claims file must be made available to and reviewed by the examiners. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the suitable professional is asked to confirm whether or not the Veteran has a current diagnosis of any TBI, to include any residuals thereof. For any diagnosis identified, the reviewing clinician should respond to the following: (a.) Is it at least as likely as not that the TBI, to include any residuals thereof, was incurred in, or otherwise related to, his time on active duty? In rendering this opinion, the examiner's attention is drawn to the November 2021 Board hearing, where the Veteran provided competent testimony as his claimed TBI and residuals. The examiner is also reminded that the Veteran's claims file contains a confirmed in-service vehicle accident, whereby the Veteran was diagnosed with a concussion after hitting his head in July 1970. The clinician is advised that the Veteran is competent to report his symptoms and history. Such reports by the Veteran must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010) 3. After completing the development noted above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Representative. After the Veteran and his Representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. The appellant has the right to submit additional evidence on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.