Citation Nr: 1803919 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-27 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for residuals of traumatic brain injury (TBI). 4. Entitlement to service connection for mild tension headaches. 5. Entitlement to service connection for hearing loss, right ear. 6. Entitlement to service connection for right ankle disability. 7. Entitlement to service connection for left ankle disability. 8. Entitlement to service connection for right knee strain. 9. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 10. Entitlement to a rating in excess of 10 percent for tinnitus. 11. Entitlement to a rating a compensable rating for left ear hearing loss. 12. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Army National Guard with active duty from November 2000 to March 2001, from October 2003 to August 2004, and from January 2008 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2011 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In September 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. After the hear hearing, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) initial consideration. Accordingly, the additional evidence has been associated with the record. The issues of entitlement to service connection for a low back disability, a traumatic brain injury, mild tension headaches, entitlement to a rating in excess of 50 percent for service-connected PTSD, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A December 2007 rating decision denied the Veteran's claim for entitlement to service connection for a low back disability. The Veteran did not appeal that decision and it became final. 2. The additional evidence submitted since the December 2007 rating decision is new and material as it relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. During the Veteran's September 2015 videoconference hearing, the Veteran withdrew his claims for entitlement to service connection for right ear hearing loss, right ankle disability, left ankle disability, and right knee strain, entitlement to a rating in excess of 10 percent for tinnitus and entitlement to a compensable rating for left ear hearing loss. CONCLUSIONS OF LAW 1. The December 2007 rating decision that denied the Veteran's claim for entitlement to service connection for a low back disability is final. 38 U.S.C. §§ 7104, 7015(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for withdrawal of a Substantive Appeal for the Veteran's claim for entitlement service connection for right ear hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 4. The criteria for withdrawal of a Substantive Appeal for the Veteran's claim for entitlement service connection for a right ankle disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 5. The criteria for withdrawal of a Substantive Appeal for the Veteran's claim for entitlement service connection for a left ankle disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 6. The criteria for withdrawal of a Substantive Appeal for the Veteran's claim for entitlement service connection for a right knee strain have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 7. The criteria for withdrawal of a Substantive Appeal for the Veteran's claim for entitlement a rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 8. The criteria for withdrawal of a Substantive Appeal for the Veteran's claim for a compensable rating for left ear hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103(A) (2012); 38 C.F.R. § 3.159 (2017). However, as discussed below, the Board is reopening the Veteran's claim for entitlement to service connection for a low back disability, dismissing the Veteran's claims for entitlement to service connection for right ear hearing loss, right ankle disability, left ankle disability, and right knee strain, entitlement to a rating in excess of 10 percent for service-connected tinnitus and entitlement to a compensable rating for service-connected left ear hearing loss and remanding the remainder of the Veteran's appeal back to the AOJ, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of this claim is necessary. II. New and Material Evidence The Veteran's claim for entitlement to service connection for a low back disability was originally denied in December 2007, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, 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. New evidence means existing 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 Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, in determining whether this low threshold is met, VA should not limit its consideration to 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. At the time of the December 2007 rating decision that denied the Veteran's claim for entitlement to service connection for a low back disability, the competent evidence of record included treatment records that documented the Veteran's complaints of back pain without corresponding diagnoses of disability. The Board finds that new and material evidence has been submitted since the December 2007 rating decision. Specifically, the newly submitted evidence includes sworn testimony from the Veteran and additional post-service treatment records documenting continuing complaints of back pain. The Board finds that the sworn testimony and post-service treatment records are new in that they were not of record at the time of the previous denial. They are material in that they speak directly to the Veteran's claim of service connection for a low back disability. Furthermore, when considered with the previous evidence of record, they could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 118 (2010). The new evidence, taken with the evidence already of record, is material to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has been submitted and the claim for service connection for a low back disability is reopened. III. Withdrawn Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, during the Veteran's September 2015 videoconference hearing, the Veteran and his representative withdrew his claims for entitlement to service connection for right ear hearing loss, right ankle disability, left ankle disability, and right knee strain, entitlement to a rating in excess of 10 percent for tinnitus and entitlement to a compensable rating for left ear hearing loss. As the withdrawals were received by VA prior to the issuance of a final decision as to these issues, the Board accordingly finds that there remains no allegation of error of fact or law for appellate consideration with respect to those issues. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability, and the claim is reopened. The appeal of the denial of entitlement to service connection for right ear hearing loss is dismissed. The appeal of the denial of entitlement to service connection for a right ankle disability is dismissed. The appeal of the denial of entitlement to service connection for a left ankle disability is dismissed. The appeal of the denial of entitlement to service connection for a right knee strain is dismissed. The appeal of the denial of entitlement to a rating in excess of 10 percent for tinnitus is dismissed. The appeal of the denial of entitlement to a compensable rating for left ear hearing loss is dismissed. REMAND While the Board sincerely regrets further delay, additional development is required before the Veteran's claims may be adjudicated on the merits. During his September 2015 video conference hearing before the Board, the Veteran stated that he was currently receiving Social Security disability benefits. However, a review of the evidence of record shows that there are no Social Security Administration records associated with the Veteran's claims file. Accordingly, a remand is required to obtain these records in order to satisfy the VA's duty to assist. 38 C.F.R. § 3.159(c)(2) (2017). Additionally, with respect to the Veteran's claim for entitlement to a TDIU, the Board notes that this claim is inextricably intertwined with his increased rating claim which remains appeal. Accordingly, the Board will therefore defer any action with respect to this claim until the completion of the development noted above. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them with the Veteran's claims file. 2. Contact the Social Security Administration and request a copy of the Veteran's completed Social Security disability benefits file, including any medical records used in granting disability benefits to the Veteran. If the AOJ cannot locate these records, they must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence, and (c) describe any further action it will take with respect to these claims. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remain denied, in whole or in part, the Veteran should be provided with a Supplemental Statement of the Case, afforded a reasonable opportunity to respond, and the case should then be returned to the Board for further appellate review, if otherwise in order. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs