Citation Nr: 1800999	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-14 954	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis (previously diagnosed as back strain).

2.  Entitlement to a rating in excess of 10 percent for residuals of left ankle fracture.

3.  Entitlement to service connection for migraine headaches, as due to service connected lumbar spondylosis.

4.  Whether new and material evidence has been received to reopen a claim for service connection for psoriasis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

A. Parrish, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1993 to July 1996.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2003 and July 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, and St. Petersburg, Florida. 

The Board notes that in April 2013 the Veteran, through his representative, filed a letter indicating his intention to file a substantive appeal regarding the issues listed on the title page.  The Substantive Appeal to Board of Veterans' Appeals, however, was misplaced and is not included in the Veteran's file.  To avoid prejudice to the Veteran, the RO, in filing the Certification of Appeal Form 8, certifying the appeal to the Board, included additional issues which were not originally included in the Veteran's April 2013 intention to file an appeal.  In his April 2015 and November 2017 Informal Hearing Presentations (IHP), through his representative, the Veteran indicated that the issues on appeal were only those listed on the title page.  As such, the Board is considering only those issues contained in the Veteran's IHP submissions and listed on the title page.

The issues of entitlement to increased ratings for lumbar spondylosis, residuals of a left ankle fracture, and service connection for migraines are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACTS

1.  The May 2004 rating decision that denied service connection for psoriasis is final. 

2.  Evidence received since the May 2004 rating decision is either duplicative or cumulative and is not so significant that it must be considered in order to fairly decide the merits of the claim of service connection for psoriasis.


CONCLUSION OF LAW

Evidence received since the May 2004 rating decision is not new and material; hence, the criteria for reopening the claim of service connection for psoriasis have not been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION


New Material Evidence

Historically, a May 2004 rating decision denied a claim for service connection for psoriasis (claimed as a skin disorder) on the basis that the Veteran's psoriasis was not incurred in or related to service.  The Veteran did not appeal that decision and that decision is final.  38 U.S.C. § 7104 (2012).

In November 2007 the Veteran sought to reopen his claim.  VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996).

New evidence is evidence not previously submitted to agency decision makers.  Material evidence is 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 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) (2017).

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new.  That analysis is undertaken by comparing newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

Pertinent evidence added to the record since the final May 2004 RO decision include VA medical records showing treatment for psoriasis.  

A September 2006 VA medical center (VAMC) note indicated the Veteran had a history of psoriasis. A February 2007 VAMC note indicated the Veteran's prescription for his psoriasis medication was renewed. A May 2008 VAMC clinic note indicated that the Veteran had a flare of his psoriasis. An August 2008 VAMC primary care note indicated the Veteran's psoriasis medication was continued. In November 2012, a VAMC primary care note indicated the Veteran was getting psoriasis lesions on his scalp. 

The Board finds that the new evidence associated with the claims file since the final May 2004 rating decision does not relate to any unproven element of the previously denied claim.  

None of the evidence submitted shows that the Veteran incurred psoriasis while in service.  His original diagnosis of psoriasis was not related to his service.  Thus, though the Veteran did submit medical records treating psoriasis, the records do not relate that condition to the Veteran's service, and do not constitute new or material evidence.  

Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection of psoriasis is not reopened.  


ORDER

As new and material evidence has not been received, the request to reopen the claim for service connection for psoriasis is denied.


REMAND

Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. 

The Veteran seeks increased ratings for his lumbar spondylosis and residuals of left ankle fracture.  In his statements in support of his claims, the Veteran indicated that his service connected lumbar spondylosis and residuals of left ankle fracture have increased in severity.  Additionally, a June 2012 VA medical center primary care note indicated the Veteran's lumbar spine condition and left ankle condition were causing him increased pain.  The Board notes that the Veteran last had a VA examination for these conditions in April 2012, over 5 years ago.  Therefore, more contemporaneous examinations are warranted.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").  Furthermore, the Veteran's VAMC treatment records are only current through 2012.  Upon remand, any outstanding VA medical records should be sought.  See 38 U.S.C. § 5103A (c) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). 

In regards to his migraine headaches, the Veteran's VAMC treatment records indicate he began experiencing migraines after he began taking medication for his back in 2003.  A September 2006 VAMC record indicated the Veteran had been diagnosed with migraines, was treating for migraines, and was told his migraines were related to his back pain.  As such, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran's claim for service connection for migraines as secondary to his service-connected back disability.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 

Accordingly, the case is REMANDED for the following action:

1. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran, including that provided after 2012.

2.  Thereafter, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected disability of the lumbar spine.  The VA examiner should review the claims file, including a copy of this REMAND, and should note that review in the report.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.  If a separate neurological examination is necessary, that examination should be scheduled.  

3.  Thereafter, schedule the Veteran for a new VA examination to determine the current nature and severity of his residuals of left ankle fracture.  The VA examiner should review the claims file, including a copy of this REMAND, and should note that review in the report.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.  The examiner should:

4.  Thereafter, schedule the Veteran for a VA examination to obtain an opinion as the current nature and etiology of his migraine headaches.  The VA examiner should review the claims file, including a copy of this REMAND, and should note that review in the report.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.  The examiner should:

(a)  Provide an opinion as to whether the Veteran's headaches were at least as likely as not (1) caused (a 50 percent probability or greater) or (2) aggravated (permanently worsened) by the Veteran's service-connected lumbar spine disability, or any other service-connected disability.

A complete rationale should be provided for any opinion provided.  If the examiner cannot provide any of the above opinions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies).  

5.  After ensuring compliance with the development requested above, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.


The appellant 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).




______________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs