BVA Case 23-4103: Back

VA twice declined to reopen the veteran's claim,finding that new and material evidence had not been submitted.

Approximately 1 year later,a VA regional office (RO)reopened the veteran's claim, finding that he had submitted new and material evidence,but the RO denied it on the merits because he had not shown good cause for failing to attend a scheduled VA medical examination.

In October 2016, a VA examiner opined that the veteran's current back disability was at least as likely as not related to an in-service back injury,referring to x-rays taken after an in-service injury on October 30,1956,that revealed compression of T9 and disc narrowing T9-10.

In December 2018,the Board denied an effective date earlier than August 7,2012, for the award of benefits for the veteran's back disability,R.

The parties entered into,and the Court granted,a joint motion for partial remand in which they agreed that the Board failed to address two of the veteran's expressly raised arguments:(1)he was entitled to an effective date of April 1957 under 38 C.

156(c)and (2)he was entitled to an effective date of June 1980 because he submitted new and material evidence following VA's July 1980 rating decision,which rendered that decision nonfinal.

ly disagreed with how that report had been weighed;and (3)an effective date of June 1980 because no new and material evidence was received within 1 year of the July 1980 rating decision.

On appeal,in January 2022,the Court remanded the matter on the grounds that (1)the parties agreed that the Board erred in relying on an absence of evidence that the November 1956 radiograph report was not in the veteran's claims file in January 1958,(2)the Board did not explain why the presence of some service medical records in the file at that time meant that that particular record was in the file,(3)the Board acknowledged that that record was not added to the veteran's electronic file until 2012 at the earliest, but the Board did not explain why that did not support a finding that the paper file did not contain the document, and (4)the Board noted that the paper file had been retired,but the Board did not explain why that was relevant.