Citation Nr: 1800829	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  15-04 712	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a neck condition, and if so, whether service connection is warranted.

2.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for scoliosis, claimed as back condition/pain, and if so, whether service connection is warranted.

3.  Entitlement to a disability rating in excess of 30 percent for acne keloidalis involving the back of the scalp.


REPRESENTATION

Veteran represented by:	National Association for Black Veterans, Inc.



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Costello, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to November 1969 and from June 1971 to December 1974 with subsequent active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Army Reserve and National Guard until his retirement in September 1998.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from January 2012, and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Augusta, Maine (RO).  During the pendency of the appeal, the Veteran relocated to North Carolina and jurisdiction currently resides at the VA RO in Winston-Salem, North Carolina.  The Board also notes that the Veteran most recently submitted a VA Form 21-22 dated February 2017 appointing National Association for Black Veterans, Inc. as his representative.

The Veteran testified before the undersigned Veterans Law Judge during a September 2017 videoconference hearing.  A copy of the transcript has been associated with the claims file.  

The issues of entitlement to a disability rating in excess of 30 percent for acne keloidalis and service connection for a neck condition 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 January 2007, the Board denied service connection for a back condition, to include scoliosis, and a neck condition.  

2.  Evidence received since the Board's January 2007 decision, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the neck condition service connection claim, and therefore raises a reasonable possibility of substantiating the claim.

3.  The additional evidence received since the Board's January 2007 decision pertaining to scoliosis, claimed as back condition/pain is either cumulative or redundant of evidence already of record and considered in that decision, and does not raise a reasonable possibility of substantiating the claim for service connection for scoliosis, claimed as back condition/pain.


CONCLUSION OF LAW

1.  The January 2007 Board decision, in which the Board denied service connection for a back condition, to include scoliosis, and a neck condition, is final.  38 U.S.C. § 7104(b) (2012).

2.  New and material evidence has been received since the January 2007 Board decision for a neck condition; thus, the claim of entitlement to service connection for a neck condition is reopened.  38 U.S.A. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3.  New and material evidence has not been received since the January 2007 Board decision for scoliosis; thus, the claim for service connection for scoliosis, claimed as back condition/pain is not reopened.  38 U.S.A. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material

In January 2007, the Board denied service connection for scoliosis, claimed as back condition/pain, and a neck condition.  The January 2007 Board decision, in which the Board denied service connection for a back condition, to include scoliosis, and a neck condition, is final.  38 U.S.C. § 7104(b).  

Prior unappealed decisions are final.  However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

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).  According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them.  Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994).  Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010)

Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  There is a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion.  38 C.F.R. § 3.156(a).  Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  That reopening then triggers VA's duty to assist in providing the claimant with a VA examination

Back Disability to include Scoliosis

Regarding the back service connection claim, the reason for the prior final Board denial was that there was no medical evidence establishing that the Veteran's degenerative disc disease of the lumbar spine was causally related to his military service.  In other words, the nexus element was missing.  The Board found further that the Veteran's preexisting scoliosis did not increase in severity during the Veteran's military service beyond its natural progression.  In that regard, scoliosis was noted in the Veteran's service treatment records (STRs) at the August 1967 pre-induction examination and reported to be mild, asymptomatic and non-disqualifying.  And, although there were several complaints of low back pain reported during the Veteran's first period of service, the Board concluded that such back pain appeared to have resolved by the Veteran's second period of service as he denied recurrent back pain at the beginning of such service and there was only one complaint of back pain during this time.  Scoliosis continued to be noted however although it also continued to be described as mild and asymptomatic.  

Since the last prior final decision, evidence has been added to the record.  The additional evidence of record consists of the Veteran's September 2017 hearing testimony, as well as medical evidence.  The additional medical evidence that pertains to the back is cumulative, and thus, not new, as it merely shows the continued existence of a back disability and treatment for a back condition in service.  The evidence is not material because the evidence could not reasonably substantiate the claim were it to be reopened as the evidence does not have any tendency to relate the back disability to service.

During the course of the appeal, the Veteran has submitted statements to the effect that he fell in Korea in March 1968 and had low back pain for weeks.  These statements are duplicative or cumulative as the Veteran is merely reiterating the same statements he made prior to the prior denial of his claim in January 2007.  See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by the decision maker at time of prior final disallowance of the claim is not new evidence).  There continues to be absent from the record any new competent and credible evidence suggesting that any preexisting scoliosis increased in severity beyond the natural progression of such disorder in service, or that any other back disability to include degenerative disc disease had its onset in or is otherwise related to the Veteran's military service.  See, e.g., 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 

None of the additional evidence, even when considered in combination with the other evidence of record, is new and material.  Thus, this evidence does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating this claim.  The prior denial is final, and the claim for service connection for a back disability to include scoliosis is not reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156.  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


Neck Condition

Since the last prior final 2007 Board decision, evidence has been added to the record.  The additional evidence of record consists of the Veteran's September 2017 hearing testimony noting that the Veteran fell in Korea in 1968 and injured his neck.  He was treated with pills and a shot at the dispensary.  He reported that the next time his neck bothered him was after he fell in June 1997 while in the reserves.  Regarding the neck condition, the reason for the prior final denial was that there was no evidence establishing the Veteran's neck condition arose on active duty or is otherwise causally related to his military service.  In other words, both the in-service incurrence and the nexus element were missing.  This recent evidence suggests that the Veteran's neck condition occurred during his service and that he purportedly had a neck condition since service.  

In this case, the Veteran's hearing testimony suggests a basis for service connection.  That evidence raises a reasonable possibility of substantiating the claim.  The Board finds that new and material evidence has been received since the January 2007 Board decision.  Therefore, the claim of entitlement to service connection for a neck condition, is reopened


ORDER

The petition to reopen the claim of entitlement to service connection a neck condition, is granted.

The petition to reopen the claim of entitlement to service connection for scoliosis, claimed as back condition/pain, is denied.


REMAND

The Board sincerely regrets the additional delay that will result from this remand, but it is necessary to have a complete record to decide the claim, so the Veteran is afforded every possible consideration.

The Veteran has asserted that he injured his neck when he fell in Korea in 1968 and when he fractured his toes during ACDUTRA in June 1997.  He stated that he had physical therapy for his neck condition at Walter Reed Hospital from approximately 2000 to 2005.  When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them.  See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990).  These records should be obtained in compliance with VA's duty to assist.  Further, once such records have been obtained and associated with the record, the Veteran should be afforded a VA examination to determine the etiology of any current neck disability.

During his September 2017 hearing, the Veteran stated that his skin condition had become worse and that bumps had spread to his shoulders.  As the Veteran has asserted that his service-connected disability has worsened since his last examination, he should be afforded a new examination in compliance with VA's duty to assist.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (where the United States Court of Appeals for Veterans Claims (the Court) determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the record copies of all clinical records of the Veteran's treatment at Walter Reed Hospital.  A specific request should also be made for physical therapy records dated from 2000 to 2005.

2.  Schedule the Veteran for an examination to determine the nature and etiology of any current neck disability.  Any indicated tests, including X-rays if indicated, should be accomplished.  The examiner should review the record prior to examination.  The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current neck condition had its clinical onset during service or is related to any in-service disease, event, or injury.  The examiner should provide a complete rationale for all opinions expressed and conclusions reached.  

3.  Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected acne keloidalis involving the back of the scalp.  The examiner should review the record prior to examination.  The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ).  The DBQ should be filled out completely as relevant.

4.  Review the development actions obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry.

5.  Readjudicate the claims on appeal in light of all of the evidence of record.  If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs