Citation Nr: 1237133 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-00 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a cervical spine disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability. 4. Entitlement to an increased rating for dermatitis, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 [service connection/new and material issues] and June 2009 [increased rating issue] rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. The reopened claim for service connection for a low back disability pursuant to the adjudication below and the claims for service connection for a right shoulder disability, a cervical spine disability and entitlement to an increased rating for dermatitis require additional development and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. December 1998 and July 2001 rating decisions denied the Veteran's claim for service connection for a low back disability; timely appeals to these decisions were not filed, and new and material evidence was not received within one year of notification of the July 2011 rating decision. 2. Certain evidence received since the last final rating decision relates to unestablished facts necessary to establish the claim for service connection for a low back disability and raises a reasonable possibility of substantiating this claim. CONCLUSION OF LAW New and material evidence to reopen the claim of service connection for a low back disability has been received; accordingly, this claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. 38 C.F.R. § 3.303(d). A claim for service connection for a lumbar spine disability was initially denied as not well grounded by a December 1998 rating decision on the basis that while there was record of treatment during service for a back disability, there was no evidence of a permanent residual or chronic back disability subject to service connection shown in the service medical records or demonstrated by evidence following service. The Veteran did not appeal this decision. The VCAA eliminated the concept of a well grounded claim, and a July 2001 rating decision that reconsidered the claim under the provisions of the VCAA denied the Veteran's claim again on the basis that there was no evidence of a post-service disability of the spine for which service connection could be granted. The Veteran was notified of this decision in August 2001 but did not file an appeal. The Board notes also that the record does not reflect that new and material evidence, as defined below, was received prior to the expiration of the appeal period following the July 2001 rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, No. 2010-7096, 2011 WL 4684291 (Fed. Cir. Oct. 7, 2011). Therefore, the July 2001 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. This is the last final rating decision addressing the claim for service connection for a low back disability on any basis, and this decision may only be reopened if new and material evidence is received. 38 U.S.C.A. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The RO in its December 2008 statement of the case found that new and material evidence had been received to reopen the claim for service connection for a low back disability. Notwithstanding this determination by the RO, the Board has a legal duty to consider the requirement of whether new and material evidence has been submitted. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence received since the July 2001 rating decision includes reports from treatment for back pain at Camp Lejeune in 2002; a June 2002 private Magnetic Resonance Imaging of the lumbar spine showing a bulging intervertebral disc at L5-S1; reports from private chiropractic treatment for the lumbar spine in 2002; and an opinion received from a private chiropractor received in December 2009 that the Veteran suffers from chronic cervical, thoracic, and lumbosacral injuries as a result of his years in the military service. The Board finds that this additional evidence received since the last final rating decision in question relates facts necessary to establish the claim for service connection for a low back disability that were not established at the time of the most recent final rating decision; namely, the presence of a post-service back disability, that not only demonstrates current back disability, but includes an opinion linking such disability to service. As such, the claim for service connection for a low back disability is reopened. 38 C.F.R. § 3.156(a); Shade, supra. There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case at this time. It is anticipated that any VCAA deficiencies will be remedied by the actions directed by the Board in the remand section of this decision. See generally, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). ORDER The claim for service connection for low back disability is reopened. To this extent, the appeal is granted, subject to the directives in the following remand section of this decision. REMAND In view of the reopening of the claim for service connection for a low back disability, the Board believes that a VA examination is now necessary to fully assist the Veteran with his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As there are service treatment reports (STRs) reflecting treatment for the neck/cervical spine (May 1981, February 1986) and the right shoulder (December 1986); testimony from the Veteran at the hearing before the undersigned describing cervical spine and right shoulder symptomatology from service until the present time; evidence of current cervical spine disability (to include a January 2008 x-ray showing discogenic and osteoarthritic changes in the cervical spine) and, to the extent that there was guarding of right shoulder movement at the January 2008 VA examination, evidence of possible current right shoulder disability; as well as testimony to the undersigned that current cervical spine and right shoulder disability is "interrelated" with a low back disability sustained as result of an in-service automobile accident in 1995 (the STRs document treatment for back pain following a motor vehicle accident in 1995), the Board finds that another VA examination is also necessary with respect to the claims for service connection for right shoulder and cervical spine disabilities. See McLendon, supra. While the Board notes that January 2008 VA examination concluded that it was less likely as not that a cervical spine disability was the result of service, the rationale for this decision was that what was shown in service was merely cervical strain. The Board is troubled by the fact that the opinion does not address the contention that such disability was inter-related with the documented in-service back symptomatology following the 1995 accident and does not offer an explanation for the complaints of cervical spine pain which the Veteran has voiced over the years. Under the particular facts of this case, the Board believes further medical development is necessary to fully assist the Veteran with his claim for service connection for a cervical spine disability. With respect to the right shoulder, the examiner stated that as there was no "shoulder pathology and/or diagnosis," an opinion was not provided. This conclusion notwithstanding, there was guarding of right shoulder movement at the January 2008 VA examination, which, given the contentions of the Veteran, may be "inter-related" with the disability incurred as a result of the 1995 accident. Given the necessity for the examination as explained above and the anatomical proximity between the cervical spine and right shoulder, the physician who conducts the examination requested below will also be asked to determine whether there is any current right shoulder disability that is inter-related with an injury sustained in a 1995 motor vehicle accident and consider the Veteran's reports of pain in the right shoulder that he has voiced over the years. In this regard, as the requirement of a "current disability" is satisfied if a disorder is diagnosed at any time during the pendency of the appeal, even if resolved prior to adjudication of the claim, the findings of no shoulder pathology in January 2008 are not determinative as to this issue. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With respect to the claim for an increased rating for dermatitis, the Veteran was last afforded a VA examination to assess the severity of this condition in February 2009, and the Veteran in his April 2010 notice of disagreement claimed that this examination was to be too brief to be adequate. In his substantive appeal, he also contended that the RO did not properly consider the fact that he takes a corticosteroid for this condition. Given the contentions, the Board finds that a more contemporaneous examination is warranted to assess the current severity of the service-connected dermatitis. 38 U.S.C.A. § 5103A; Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In order to obtain sufficient clinical information to adjudicate this claim, the examiner will also be requested to focus the examination on the relevant rating criteria as directed below. For the reasons stated above, this case is REMANDED for the following actions: 1. The Veteran should be scheduled for a VA examination of the lumbar spine, cervical spine, and right shoulder by an appropriate medical doctor, preferably an orthopedist if available. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. Any medically indicated special tests should be conducted, and pertinent medical diagnoses should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should offer responses to the following: Is it at least as likely as not (a 50% or higher degree of probability) that any current right shoulder, cervical spine, or low back disability is causally related to the pertinent in service symptoms and findings shown in the STRs, to include those following the 1995 motor vehicle accident (such as the L5-SI spondylosis shown on an April 1995 x-ray) and the documented complaints of right shoulder, cervical spine, and low back pain since service? If so, please clearly identify the current right shoulder, cervical spine or low back disabilities which are causally related to the in-service and post-service complaints. Detailed reasons for the opinion are requested, to include discussion of the significance of any in-service and post-service low back, right shoulder, and cervical spine clinical findings and complaints. A discussion of the contention that current back, cervical spine, and right shoulder disability is "inter-related" with injuries sustained in the 1995 motor vehicle accident should also be completed by the examiner. If the Veteran fails to report for the examination, the claims file should nevertheless be forwarded to an appropriate medical doctor, preferably an orthopedist if available, for review and a response (with rationale) to the above-posed question. 2. The Veteran should be scheduled for a VA dermatologic examination to determine the current extent of the impairment resulting from his service-connected dermatitis. All testing and evaluation needed to make this determination should be conducted. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner is to specifically comment as to the following: 1) The percent of the entire body affected by dermatitis. 2) The percent of the exposed areas of the body affected by affected by dermatitis. 3) The degree to which dermatitis requires systemic therapy such as corticosteroids or other immunosuppressive drugs and the duration of such therapy in a 12 month period. 3. In the interest of avoiding further remand, the RO should review the examination reports to ensure that they are responsive to the remand directives. 4. After completion of the above, the RO should review the expanded record and determine if the claims that have been remanded may be granted. To the extent that this does not result in a full grant of all benefits sought, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs