12-10 528, 12-10 528

Veteran served active duty Aug 1987–Aug 1990; service treatment records contain no documented back or lower-extremity disability.
RO denied service connection for low back disability and bilateral lower-extremity radiculopathy in an April 2008 rating decision; the Veteran did not timely perfect an appeal, so the decision became final.
Post-service records show complaints of back and leg pain starting in 2001–2002, EMG evidence of acute bilateral L5 radiculopathy, and an L5–S1 fusion in 2010; SSA records found disability due to a low back injury.
Veteran provided lay testimony (including a July 2013 Board hearing) asserting in-service onset of back/leg pain and continuity of symptoms; Joint Motion for Remand (Feb 2015) found the Board had not adequately evaluated lay evidence regarding in-service symptoms.
The Board found that evidence submitted since the April 2008 decision is new and material and reopened the claims for low back disability and secondary radiculopathy, but remanded for VA examination to determine etiology and nexus.

Issue	Veteran's Argument	VA/RO's Argument	Held
1. Whether new and material evidence reopens claim for low back disability	Lay testimony and later medical records (EMG, surgery, SSA finding) show in-service onset/continuity and are new material evidence	April 2008 denial was final; no new and material evidence was submitted	Reopened: evidence since 2008 is new and material
2. Entitlement to service connection for low back disability (merits)	Back disability began in service and continued post-service	Denied by RO in 2008; merits undecided pending development	Remanded for VA exam to opine on nexus; merits not yet decided
3. Whether new and material evidence reopens claim for bilateral lower-extremity radiculopathy (secondary)	Radiculopathy is secondary to service-connected/claimed low back disability; new records and testimony support reopening	2008 final denial; no timely appeal then	Reopened: evidence since 2008 is new and material
4. Entitlement to service connection for bilateral lower-extremity radiculopathy (merits)	Radiculopathy is related to the low back disability and began in/after service	Denied previously; merits require medical nexus opinion	Remanded for VA exam to determine whether radiculopathy is related to service/back condition

Knightly v. Brown, 6 Vet. App. 200 (analysis that Secretary must reopen final claims when new and material evidence is presented)
Shade v. Shinseki, 24 Vet. App. 110 (explaining the low threshold for "reasonable possibility" that new evidence substantiates a claim)
Evans v. Brown, 9 Vet. App. 273 (only evidence submitted since last final denial is evaluated for reopening)
Justus v. Principi, 3 Vet. App. 510 (credibility of newly submitted evidence is presumed for reopening analysis)
Shedden v. Principi, 381 F.3d 1163 (elements required for service connection)
McLendon v. Nicholson, 20 Vet. App. 79 (VA duty to provide exam when evidence indicates possible nexus)
Kutscherousky v. West, 12 Vet. App. 369 (appellant may submit additional evidence after remand)