Citation Nr: 22017249 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-25 966 DATE: March 24, 2022 ORDER As new and material evidence has been received, the request to reopen the previously denied claim of entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. A September 2007 rating decision denied service connection for a low back disability. That decision was not appealed and new and material evidence was not received within one year of the issuance of the decision. 2. Evidence added to the record more than one year after the September 2007 rating decision is not cumulative or redundant and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The September 2007 rating decision denying the claim for service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONLUSIONS The Veteran served on active duty in the United States Army from April 1974 to April 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran's April 2017 VA Form 9 requested a hearing with the Board, his attorney has since expressed to VA in writing the intention to withdraw the requested Board hearing. See Hearing Related (October 2021). The Board finds that the hearing request has been withdrawn. 38 C.F.R. § 20.704(e). In January 2022 correspondence, the Veteran's attorney waived consideration by the Agency of Original Jurisdiction (AOJ) of "any documents submitted after the last adjudication." Accordingly, the Board may consider the new evidence associated with the claims file since the February 2017 Statement of the Case. 38 C.F.R. § 20.1305(c). Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a low back disability. A claim that has been denied in an unappealed Regional Office (RO) 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). Regardless of whether the RO 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). In this case, a September 2007 rating decision denied service connection for spinal degeneration lower back because there was no evidence of the condition during service, and because a December 1977 VA examination was negative for spinal degeneration lower back. VA notified the Veteran of this decision in an October 2007 letter. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the September 2007 rating decision became final. As an initial matter, the Board notes that the Reserve STRs added to the claims file since that decision do not contain relevant evidence relating to the low back. There is no indication of back complaints, treatment, or diagnoses. As such, the claim cannot be considered an original claim for service connection pursuant to 38 C.F.R. § 3.156 (c). In a June 2015 rating decision, the RO reopened the claim and denied service connection, finding that service treatment records (STRs) do not contain complaints, treatment, or diagnosis for this condition. This appeal arises from the Veteran's disagreement with the January 2015 decision. At the time of the prior final disallowance in September 2007, the evidence before adjudicators included STRs and VA treatment records. STRs show that the Veteran complained of back pain on one occasion, which was assessed as a muscle strain, and that his spine evaluation was normal at separation from service. VA treatment records from 2005 show complaints of back pain and degenerative changes in the back was assessed in 2006. Evidentiary submissions received since the September 2007 decision includes new and material evidence. Specifically, March 1999 VA treatment records, which were received in May 2016, show that the Veteran reported that he hurt his back lifting weights 20 years ago and since then had on and off problems. Those records were not in the file at the time of the September 2007 decision, nor is there any indication that VA had constructive knowledge of those records at the time. The Board finds that the evidence is new as it was not previously considered by VA adjudicators, and is material as it raises a reasonable possibility of substantiating the claim. It is noted that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the petition to reopen is granted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability The Veteran's attorney contends that the Veteran's currently diagnosed low back disability is caused by the circumstances of his service, which included lifting heavy objects as a supply clerk and standing for extended periods while on guard duty. See Third Party Correspondence (January 2022). The Board finds that remand is required to ensure that VA has met its duty to assist. 38 C.F.R. § 3.159. First, the evidence shows that the Veteran receives Social Security Administration (SSA) disability benefits for a back disability. See Medical Treatment Record - Government Facility at 10 (May 2010). However, the SSA decision awarding disability benefits has not been obtained. As an SSA decision discussing the Veteran's back disability may be relevant in determining whether his current lumbar DDD is related to his service or an intervening cause, a request for the decision awarding disability benefits is required. VA's duty to assist includes obtaining relevant evidence in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Second, the February 2017 VA examination report and medical opinion are inadequate for adjudication. The examination report shows that arthritis is diagnosed. However, the examiner did not opine as to whether this condition manifested to a compensable degree within one year of service. Additionally, the February 2017 VA medical opinion is inadequate as it indicates that the examiner's rationale relied on the absence of a diagnosis at the time of separation as the basis for the negative opinion. An in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Where VA provides an examination or obtains an opinion, it must be adequate for adjudication. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for a neck disability The Veteran's attorney contends that his currently diagnosed neck disability is secondary to his currently diagnosed low back disability. These claims are inextricably intertwined with the claim of entitlement to service connection for lumbar DDD. As the primary disability on which the secondary service connection claim is based is being remanded, the Board must defer consideration of the secondary service connection claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of any currently diagnosed low back disability. An examination is only required if deemed necessary by the clinician. The examiner must review the claims file and note such review. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not that any currently diagnosed low back disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (b.) Is it at least as likely as not that any currently diagnosed low back disability is related to the Veteran's active service, to include the May 1975 treatment for low back pain and diagnosis of muscle strain? Provide a rationale to support the opinions. 2. If the above development shows that any currently diagnosed low back disability is related to the Veteran's service, obtain an addendum opinion from an appropriate clinician regarding the etiology of any currently diagnosed neck disability. An examination is only required if deemed necessary by the clinician. The examiner must review the claims file and note such review. The examiner is asked to provide a response to the following: (a.) Is any currently diagnosed neck disability at least as likely as not proximately due to service-connected low back disability? (b.) Is any currently diagnosed neck disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected low back disability? Separate opinions are required for causation and aggravation. Provide a rationale to support the opinions. (Continued on the next page) 3. Then, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case, provide an opportunity to respond, and return the case to the Board for further appellate review. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.