Citation Nr: 1802255	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  17-31 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received in order to reopen a claim for service connection for trigeminal neuralgia.  

2. Whether new and material evidence has been received in order to reopen a claim for service connection for a spine condition, to include spinal stenosis, and lumbar spondylosis.    

3. Entitlement to service connection for trigeminal neuralgia.

4. Entitlement to service connection for a spine condition, to include spinal stenosis, and lumbar spondylosis.    

5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 




REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and Spouse 


ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from December 1949 to August 1953.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In October 2016, the Veteran testified before the undersigned at a video-conference Board hearing.  A transcript of the hearing is associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for COPD, and entitlement to service connection for a spine condition, to include spinal stenosis, and lumbar spondylosis, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. In a March 2010 rating decision, the RO denied the Veteran's claim for service connection for trigeminal neuralgia.  The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter.

2. The evidence received since the March 2010 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for trigeminal neuralgia.  

3. In a March 2010 rating decision, the RO denied the Veteran's claim for service connection for a spine condition, to include spinal stenosis.  The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter.

4. The evidence received since the March 2010 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a spine condition, to include spinal stenosis, and lumbar spondylosis.    

5. The Veteran's trigeminal neuralgia is at least as likely as not related to service.  


CONCLUSIONS OF LAW

1. The March 2010 rating decision that denied the Veteran's claim for entitlement to service connection for trigeminal neuralgia is final.  38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).  

2. New and material evidence has been received and, as such, the claim for entitlement to service connection for trigeminal neuralgia is reopened.  38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

3. The March 2010 rating decision that denied the Veteran's claim for entitlement to service connection for a spine condition, to include stenosis, is final.  38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).  

4. New and material evidence has been received and, as such, the claim for entitlement to service connection for a spine condition, to include spinal stenosis, and lumbar spondylosis is reopened.  38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

5. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for trigeminal neuralgia are met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence 

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  New evidence means existing evidence not previously submitted.  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.

The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  

By way of history, the Veteran filed an original claim for service connection for a spine condition, and a claim for service connection for trigeminal neuralgia in November 2009 that was denied in a March 2010 rating decision.  The Veteran did not appeal nor submit additional evidence within a year of the March 2010 decision, and the decision, therefore, became final.  

In September 2012, the Veteran sought to reopen his claim.  New evidence submitted since the March 2010 rating decision includes a March 2017 VA examination, and various private treatment records, as well as private medical opinions with regard to the issues on appeal.   For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  As the above-mentioned evidence is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claims.  Thus, the claim for service connection for trigeminal neuralgia, and the claim for service connection for a spine condition, to include spinal stenosis, and lumbar spondylosis, are reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  To this limited extent only, the claims are granted.

Service Connection for Trigeminal Neuralgia

Service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  In order to establish service connection for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Board finds that the evidence of record supports a grant of service connection for trigeminal neuralgia.  First, there is evidence of a current disability.  A March 2017 VA examination report diagnosed trigeminal neuralgia.  See 38 C.F.R. § 3.303(a). 

Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current trigeminal neuralgia is related to an in-service head trauma.   In that regard, the law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (West 2014).  The Board acknowledges that there is evidence against the claim.  In that regard, a March 2017 VA examiner opined that it was less likely than not that the Veteran's trigeminal neuralgia was related to service.  However, the Veteran submitted an April 2017 opinion written by his private physician that is supportive of the claim, and includes sufficient rationale.  That opinion opines that "[i]t is reasonable . . . to attribute th[e Veteran's] neuropathic pain to th facial trauma he suffered to the right side of the face while [on] active duty Air Force."  Moreover, the Veteran provided June 2012 and October 2012 opinions written by other private physicians that are also supportive of his claim.  The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for trigeminal neuralgia is warranted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").


ORDER

New and material evidence having been received, reopening of the previously denied claim of entitlement to service connection for trigeminal neuralgia, to this extent only, the appeal is granted.

New and material evidence having been received, reopening of the previously denied claim of entitlement to service connection for a spine condition, to include spinal stenosis, and lumbar spondylosis, to this extent only, the appeal is granted.

Entitlement to service connection for trigeminal neuralgia is granted.  


ORDER

New and material evidence having been received, reopening of the previously denied claim of entitlement to service connection for a low back condition, to this extent only, the appeal is granted.

Entitlement to service connection for trigeminal neuralgia is granted.  


REMAND

COPD

The Veteran asserts that he has breathing difficulty, to include COPD, that is related to his time in service.  Although the Veteran was not diagnosed with COPD at the time of his July 2013 VA examination, the Board notes that the record reflects that the Veteran has since been diagnosed with COPD.  See November 2017 Private Medical Records.  Upon consideration of the record, the Board finds that a VA medical opinion is warranted that addresses the nature and etiology of the Veteran's breathing difficulty, to include COPD.  See, e.g., McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i) (2017).   

Spine Condition, to Include Spinal Stenosis, and Lumbar Spondylosis.  

The Veteran asserts that he has a spine condition, to include spinal stenosis, and lumbar spondylosis, that is related to his time in service.  The record reflects that the Veteran has been diagnosed with lumbar spondylosis, and spinal stenosis.  See November 2009 Private Medical Records.  

Additionally, the Board notes that the Veteran submitted a December 2009 private medical opinion stating that the Veteran's low back pain dated back to his time in service.  Moreover, the Veteran provided an October 2012 private medical opinion in support of his claim.  However, the doctor provided no supporting rationale for his opinion that the Veteran had chronic lumbar radiculopathy that was related to his military service.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion").  

In light of the foregoing, the Board finds that a VA medical opinion is warranted that addresses the nature and etiology of the Veteran's spine condition, to include spinal stenosis, and lumbar spondylosis.  See, e.g., McLendon, 20 Vet. App. at 79; 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).     

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his spine condition(s), as well as his breathing difficulties, to include chronic obstructive pulmonary disease (COPD).  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also secure any outstanding VA treatment records.

2. After completing the foregoing development, schedule the Veteran for a VA examination to determine the nature and etiology of his spine condition, to include spinal stenosis, and lumbar spondylosis.  The examiner should review all pertinent records associated with the claims file.  

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.

The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's spine condition, to include spinal stenosis, and lumbar spondylosis, had its onset during service, manifested to a compensable degree within one year after active service, or is otherwise etiologically related to his active service.   Specifically, the examiner is asked to address the Veteran's October 2012 private treatment note opining that the Veteran had chronic lumbar radiculopathy as a result of lifting patients during service, as well as a December 2009 private treatment note indicating that the Veteran had experienced low back pain since service.   

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's breathing difficulties, to include COPD. The examiner should review all pertinent records associated with the claims file.  

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.

The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's breathing difficulty, to include COPD, had its onset during service or is otherwise etiologically related to his active service.    

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  

4. In the event that the Veteran does not report for the any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address and to his representative, if applicable.  It should also be indicated whether any notice sent was returned as undeliverable.  
     
5. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).

These claims 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 2014).




______________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs