Citation Nr: 1526763 Decision Date: 06/24/15 Archive Date: 06/30/15 DOCKET NO. 13-29 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for low back pain (claimed as back condition). 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for cervical spine osteoarthritis, C5 to C7 (claimed as neck condition). 3. Entitlement to an initial rating greater than 30 percent for the service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with major depressive disorder. REPRESENTATION Appellant represented by: John C. Blair, Attorney ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from July 1986 to February 1987, and from January 1998 to September 1998. She had additional periods of reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2010 and August 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. As shown in an August 2013 Statement of the Case (SOC) the RO reopened the claims of service connection and denied the claims on the merits. The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issues go to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the issues have been characterized as claims to reopen. The issues of the now reopened service connection claims for a low back disorder and cervical spine disorder and for the initial increased rating claim are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an October 2005 decision, the RO denied the Veteran's claim of service connection for low back pain (claimed as back condition); the Veteran was notified of this decision and of her appellate rights, but did not perfect an appeal or submit new and material evidence within the appeal period. The decision became final. 2. The evidence added to the record since the October 2005 RO decision is not cumulative or redundant and, when considered with previous evidence of record, relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for low back pain. 3. In an October 2005 decision, the RO denied the Veteran's claim of service connection for cervical spine osteoarthritis, C5 to C7 (claimed as neck condition); the Veteran was notified of this decision and of her appellate rights, but did not perfect an appeal or submit new and material evidence within the appeal period. The decision became final. 4. The evidence added to the record since the October 2005 RO decision is not cumulative or redundant and, when considered with previous evidence of record, relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for cervical spine osteoarthritis, C5 to C7. CONCLUSIONS OF LAW 1. Subsequent to the final October 2005 RO decision, new and material evidence has been received to reopen the claim of service connection for low back pain. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). 2. Subsequent to the final October 2005 RO decision, new and material evidence has been received to reopen the claim of service connection for cervical spine osteoarthritis, C5 to C7. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). As the claims are reopened, further discussion of the duties is not necessary. Laws and Regulations Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 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 means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis Historically, the appellant's claims of service connection for a low back disorder and a cervical spine disorder were most recently finally denied by the RO in October 2005. The claims were denied because there was no evidence either disorder was either incurred in or caused by service. The appellant was notified of that decision and her appellate rights in October 2005. She did not perfect an appeal of the decision or submit new and material evidence within the appeal period and it became final. In November 2009, the appellant requested that her claims for entitlement to service connection for back and neck disorders be reopened. Evidence added to the record since the October 2005 rating decision includes a statement from a retired Major from the West Virginia Army National Guard. This statement, received in December 2009, states that he was deployed with the Veteran in Bosnia in January 1998, and at that time, he accompanied the Veteran several times to the medic for treatment for her neck, arms and back pain. He added that she was administered a shot and some other pain relievers. Also added to the record since October 2005 is the October 2010 report of a private examination report conducted by a chiropractor, V.P. As part of this report, he commented that the Veteran had provided a history of injuring her cervical and lumbar spine segments due to carrying heavy equipment packs during her military service. Orthopedic testing was positive for both the cervical and lumbar spine areas. A September 2004 MRI report was noted to have shown cervical spine osteoarthritis. V.P. stated that, to a "reasonable degree of medical certainty," the Veteran's diagnosed spine disorders were "at least as more likely than not related to her military service." The Board finds that this evidence is both new and material. The evidence is new as it was not of record at the time of the prior denial. The evidence is also material as it addresses unestablished facts; that is, whether the Veteran has disorders of the low back and cervical spine which are related to her military service. That evidence, combined with VA assistance-based duties (i.e., to obtain an adequate medical opinion regarding the etiology of these presently-diagnosed disorders) and other evidence of record, raises a reasonable possibility of substantiating the claims and therefore meets the "low threshold" required to reopen a claim under § 3.156(a). See Shade. As such, the request to reopen the previously denied claims of service connection is granted. 38 C.F.R. § 3.156(a). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for low back pain (claimed as back condition) is reopened. To this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for cervical spine osteoarthritis, C5 to C7 (claimed as neck condition) is reopened. To this extent only, the appeal is granted. REMAND Further development is required prior to adjudication of the service connection claims on the merits. The October 2010 private opinion related the neck and back disorders to the Veteran's military service; however, V.P. did not provide adequate rationale. V.P. referred to the Veteran's service, but did not distinguish between active duty or reserve service. The Board finds this important because within the same opinion, V.P. noted that the Veteran had been medically discharged from the reserves because of a nonservice, work-related wrist condition. Thus, a VA examination, to include consideration of active duty as well as reserve duty records, is required. 38 C.F.R. § 3.159(c)(4). As to the claim for an increased initial rating for the service-connected acquired psychiatric disorder, a statement of the case (SOC) should be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). In the February 2010 rating decision, the RO declined to reopen a previously denied claim of service connection and the Veteran disagreed with that determination. In an August 2013 rating decision, service connection was granted and an initial 30 percent rating was assigned, effective November 18, 2009. The RO included the issue of increased rating for the recently service-connected psychiatric disability in an SOC issued that same day; however, that SOC was premature. Notice regarding the August 2013 decision and the Veteran's appellate rights was only provided in December 2013. In December 2014, the Veteran submitted a notice of disagreement (NOD) with the rating assigned, indicating a 70 percent rating was being sought. Given the December 2014 NOD, an SOC should now be issued. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for neck and back conditions since 2001. After securing the necessary release, obtain these records. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of all diagnosed lumbar and cervical spine disorders. The claims folder and copies of all pertinent records must be made available to the examiner for review. Any indicated diagnostic tests and studies must be accomplished. Based on the examination and review of the record, the examiner should answer the following question: Is it at least as likely as not (50 percent or higher degree of probability) that any current lumbar and/or cervical spine disorder was incurred in or aggravated by service? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, the AOJ should readjudicate the Veteran's claims for service connection. If any benefit sought on appeal remains denied, a supplemental SOC (SSOC) should be provided to the Veteran and her attorney. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 4. The AOJ should issue an SOC and notification of the Veteran's appellate rights on the issue concerning entitlement to a higher initial rating for her service-connected acquired psychiatric disorder. The Veteran is reminded that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed. If the Veteran perfects the appeal as to this matter, it must 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs