Citation Nr: 18142890 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 11-26 999A DATE: October 17, 2018 ORDER New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a low back disability. The appeal is denied. REMANDED Entitlement to service connection for emphysema, to include as secondary to service-connected pulmonary tuberculosis, inactive, status post resection of right lung, is remanded. Entitlement to a noninitial disability rating in excess of 10 percent for service-connected pulmonary tuberculosis, inactive, status post resection of right lung, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT By a final November 1990 rating decision, the Veteran was last denied entitlement to service connection for a low back disability. A claim to reopen entitlement to service connection was received in July 1996, but was abandoned. Evidence received since the final November 1990 rating decision is not both new and material, and does not raise a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. The November 1990 rating decision is final with respect to its denial of entitlement to service connection for a low back disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. 2. The Veteran’s July 1996 claim to reopen entitlement to service connection for a low back disability was abandoned. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.155; 3.158(a). 3. New and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for a low back disability has not been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1973 to August 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2011 and June 2014 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a May 2018 Travel Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. The Veteran was previously represented by attorney C.D.R. See VA Form 21-22a, executed June 7, 2011. In correspondence received in July 2017, the Veteran notified VA in writing that he was terminating C.D.R.’s representation and would be proceeding pro se. However, C.D.R. appeared at the May 2018 Board hearing, represented the Veteran during the proceedings, and made procedural requests on the Veteran’s behalf, to include withdrawing the claim of entitlement to service connection for tinnitus and waiving initial RO review of evidence received since the December 2014 Supplemental Statement of the Case. These actions called into question the validity of the Veteran’s July 2017 termination of C.D.R.’s representation. In September 2018, VA sent the Veteran correspondence seeking clarification of the scope of C.D.R.’s representation. The Veteran was notified that if he wished to proceed with C.D.R. as his representative, he must submit an updated VA Form 21-22a within thirty days, or else the Board would proceed with its review of the appeal under the assumption he was unrepresented. The thirty-day period has expired, and the Veteran has not submitted an updated VA Form 21-22a identifying C.D.R. or anyone else as his representative. Accordingly, the Board shall proceed with its review of the appeal under the assumption that the Veteran is pro se and unrepresented in these proceedings. In September 2018, VA also sent the Veteran correspondence seeking to clarify whether the Veteran agreed with the procedural decisions C.D.R. made on his behalf at the May 2018 Board hearing. In correspondence received in September 2018, the Veteran indicated that he wished to withdraw the claim of entitlement to service connection for tinnitus. As this request complied with the regulatory requirements of 38 C.F.R. § 20.204, this claim is no longer before the Board for appellate review. Additionally, the Veteran confirmed that he wished to waive initial RO review of evidence received since the December 2014 Supplemental Statement of the Case. 38 C.F.R. § 20.1304(c). Accordingly, the Board may proceed with its appellate review. The Veteran has not raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In August 2012, the Veteran filed a claim of entitlement to service connection for a neck disability; however, the RO treated this claim as part and parcel with the Veteran’s claim to reopen entitlement to service connection for low back disability. However, the neck (cervical spine) is anatomically separate from the thoracolumbar spine, and should have been considered as a separate service connection claim. Accordingly, a claim of entitlement to service connection for a neck disability has been raised by the record, and is REFERRED to the RO for appropriate action. 38 C.F.R. § 19.9(b). New and Material Evidence The Veteran seeks to reopen a claim of entitlement to service connection for a low back disability. To reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108. New evidence means 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO indicated in the March 2014 and June 2014 rating decisions, as well as the September 2016 Statement of the Case, that a claim of entitlement to service connection for a low back disability was last denied in a March 1976 rating decision. However, the Board’s de novo review of the appellate record establishes that this assertion is incorrect. The first decision addressing the back claim was in 1976, but the Veteran was last denied entitlement to service connection for a low back disability in a November 1990 rating decision, mailed to the Veteran in December 1990. The question of whether new and material evidence has been received considers the record at the time of the last final denial. The basis of the November 1990 denial was the RO’s conclusion that the medical evidence did not show that the Veteran’s low back disability was incurred in or aggravated by the Veteran’s active duty service. The Veteran was notified of his procedural and appellate rights in December 1990, but he did not submit a notice of disagreement within one year from the date in which the RO mailed the rating decision. 38 C.F.R. § 20.302. The Veteran also did not submit new and material evidence regarding this claim within the one-year appellate period. 38 C.F.R. § 3.156(b). While medical evidence was received in June and November 1991, this evidence pertained to treatment for dermatitis, substance abuse, and a left foot injury. This evidence did not discuss or reference a low back disability or any relevant treatment for such a disability. Although this evidence was new, it was not material or even relevant to the issue of entitlement to service connection for a low back disability. As the Veteran did not initiate an appeal to the November 1990 rating decision, or submit new and material evidence within one year, the rating decision became final. 38 C.F.R. §§ 3.156(b), 20.302(a), 20.1103. The Board acknowledges that the Veteran filed a subsequent claim seeking to reopen entitlement to service connection for a low back disability in July 1996. The RO issued correspondence in August 1996 indicating that no further action would be taken on the claim until the Veteran submitted new and material evidence. The RO requested that the evidence be submitted as soon as possible, preferably within sixty days of the letter, but no later than one-year following the issuance of the letter. The Veteran did not submit any medical or lay evidence regarding a low back disability within the one-year period following the issuance of the RO’s August 1996 letter. [He did submit evidence on other claims, but none of it was pertinent to the back.] Pursuant to 38 C.F.R § 3.158(a), the Veteran’s July 1996 petition to reopen a claim of entitlement to service connection for a low back disability was abandoned, and does not constitute a finally adjudicated claim. The Veteran’s most recent request to reopen a claim of entitlement to service connection for a low back disability was received in August 2012. While new evidence in the form of private and VA treatment records, as well as lay statements and testimony, have been received, the evidence is not material, as it does not relate to the previously unestablished fact of whether the Veteran’s low back disability is etiologically related to his active duty service. The Board notes that the Veteran injured his low back in June 2010 and October 2011 while at work. As part of a workers’ compensation claim, the Veteran was examined in May 2012 by a private orthopedist. The Veteran reported a prior history of back pain following a motor vehicle accident in the 1990’s, but did not discuss any low back pain or injuries during service. The physician found that the June 2010 and October 2011 injuries exacerbated a present, but asymptomatic, prior low back condition. The physician did not indicate or suggest that the Veteran’s low back disability had its origins during the Veteran’s active duty service. This evidence is not material because it does not include any indication that the Veteran’s current low back disability is possibly related to the Veteran’s active duty service and could not reasonably substantiate the Veteran’s claim. Moreover, C.D.R. argued at the May 2018 Board hearing that the Veteran’s low back disability may be secondary to the Veteran’s service-connected resection of the sixth right rib. This new theory of entitlement is not a new claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (multiple theories of entitlement pertaining to the same benefit for the same disability constitute the same claim). While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37(Fed. Cir. 2008); see also Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005) (In delineating a distinction between claims and theories when considering the question of finality, the United States Court of Appeals for the Federal Circuit held that, pursuant to 38 U.S.C. § 7104(b), “finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected.”). Thus, it is necessary to determine whether this new theory, in conjunction with the evidence of record, is sufficient to reopen this claim. As the record currently stands, there is no competent medical or lay evidence linking the Veteran’s current low back disability to his service-connected resected rib. The only person suggesting such a link is the Veteran’s former attorney, and he has not provided any basis in support of his contention. This assertion of a new theory of entitlement is not supported by new and material evidence sufficient to reopen the previously disallowed claim. Consequently, the evidence received since the November 1990 rating decision is not both new and material, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. Accordingly, the Veteran’s application to reopen this claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for emphysema, to include as secondary to service-connected pulmonary tuberculosis, inactive, status post resection of right lung, is remanded. The Veteran was afforded a VA examination in July 2010 to assess the nature of his claimed emphysema disability and determine whether this disability, if present, was secondary to the Veteran’s service-connected inactive pulmonary tuberculosis, status post resection of the right lung, under the provisions of 38 C.F.R. § 3.310. The examiner diagnosed the Veteran, in relevant part, with chronic interstitial lung disability with emphysema. Regarding nexus, the examiner found that the restrictive portion of the Veteran’s lung disability was at least as likely as not related to his right lung surgery that occurred due to service-connected tuberculosis in October 1975; however, the examiner could not link the obstructive portion of the Veteran’s lung disability (i.e., presumably emphysema) to his service-connected inactive pulmonary tuberculosis, without resort to mere speculation, given the Veteran’s history of smoking, which is known to cause chronic obstruction. The Board finds than an additional medical opinion is warranted to: • Determine whether the Veteran’s current emphysema disability was incurred in or otherwise etiologically linked to the Veteran’s active duty service; • Clarify that the “obstructive portion” of the Veteran’s lung disability mentioned by the July 2010 examiner was in reference to emphysema, and if not, determine whether the Veteran’s emphysema is proximately due to or the result of the Veteran’s service-connected inactive pulmonary tuberculosis, status post resection of the right lung. • Determine whether the Veteran’s emphysema is aggravated by the Veteran’s service-connected inactive pulmonary tuberculosis, status post resection of the right lung. 2. Entitlement to a noninitial disability rating in excess of 10 percent for service-connected pulmonary tuberculosis, inactive, status post resection of right lung, is remanded. The Veteran was last afforded a pulmonary VA examination in July 2010 and last underwent pre-and-post bronchodilator spirometry testing in February 2012. While the Board is cognizant that the mere passage of time alone is not a sufficient basis for obtaining a new VA examination, the record establishes that recent lay statements from the Veteran, his daughter, and his home health provider suggest a severe worsening of the Veteran’s pulmonary disability, to the point that the Veteran now utilizes a breathing machine daily. See VAOPGCPREC 11-95 (1995). At the May 2018 Board hearing, the Veteran testified that his breathing has worsened drastically since 2013 and reiterated that he utilizes a breathing machine to sleep. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, as the Veteran last underwent acceptable spirometry testing nearly six years ago, and the lay statements of record suggest that the Veteran’s symptoms have worsened, he should be afforded a VA examination to assess the current nature, extent, and severity of his service-connected inactive pulmonary tuberculosis, status post resection of right lung. 3. Entitlement to a TDIU is remanded. As the record currently stands, the Veteran is in receipt of a total combined disability rating of 30 percent for his service-connected disabilities. The increased rating claim for service-connected inactive pulmonary tuberculosis, status post resection of right lung, and service connection claim for emphysema, which are currently on appeal and are being remanded for further evidentiary development, have the potential to impact (1) whether the Veteran satisfies the schedular TDIU thresholds set forth in 38 C.F.R. § 4.16; or (2) VA’s assessment of whether the Veteran experiences occupational impairment arising from the combination of his service-connected disabilities sufficient to warrant extraschedular TDIU referral. The Veteran is cautioned that if service connection for emphysema is achieved, 38 C.F.R. § 4.96(a) dictates that ratings for coexisting respiratory conditions shall not be combined, but will instead be assigned a single rating under the diagnostic code which reflects the predominant disability, with elevation to the next higher evaluation in circumstances where the severity of the overall disability warrants such elevation. Given the above, the Veteran’s claim of entitlement to a TDIU is inextricably intertwined with his pending claims, the adjudication of which may affect his ability to satisfy the schedular requirements for award of a TDIU as set forth in 38 C.F.R. § 4.16(a), or warrant potential referral for extraschedular TDIU consideration under 38 C.F.R. § 4.16(b). See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Upon remand, the Veteran should be provided with the opportunity to submit a completed VA Form 21-8940, listing his educational and employment history, as such information is necessary to properly adjudicate his claim for a TDIU. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2017 to the present. 2. Also, ensure that all pulmonary function test results from VA treatment records, dated April 2009 to present, have been associated with the Veteran’s electronic claims file. 3. Send the Veteran VA Form 21-8940 for completion. If the form is completed, proceed with any further evidentiary development deemed necessary, to include sending VA Form 21-4192 to the Veteran’s listed previous employers, if appropriate. 4. Also, schedule the Veteran for a VA examination to assess the nature and severity of the Veteran’s current pulmonary disabilities. The examiner must perform complete pulmonary function testing, and report the Veteran’s FVC; FEV-1; FEV-1/FVC; DLCO (SB); and maximum exercise capacity as measured by oxygen consumption (in ml/kg/min). If pulmonary function testing cannot be completed, the examiner must explain why. To the extent possible, the examiner should differentiate the Veteran’s pulmonary function test results due to his service-connected inactive pulmonary tuberculosis, status post resection of right lung, from those, if any, due to emphysema or any other currently nonservice-connected lung conditions. If the examiner concludes certain PFT results such as FVC or FEV-1 are more appropriate for rating the impairment due to the service-connected inactive pulmonary tuberculosis, status post resection of right lung, than from emphysema or any other currently nonservice-connected lung conditions, then please state such with an explanation. Following a complete review of the electronic claims file and in-person examination/testing, the examiner is requested to issue an opinion on the following inquiries: (a.) Identify whether the Veteran’s service-connected inactive pulmonary tuberculosis, status post resection of right lung, or his emphysema is his predominant respiratory disability, and explain your conclusion. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current emphysema was first incurred in or otherwise etiologically related to the Veteran’s active duty service? (c.) When the July 2010 VA examiner referenced the “obstructive portion” of the Veteran’s lung disease, was he referring to emphysema? (i). Only if the answer is negative shall the examiner opine on whether, is it at least as likely as (50 percent or greater probability) that the Veteran’s current emphysema is proximately due to or the result of the Veteran’s service-connected inactive pulmonary tuberculosis, status post resection of right lung? (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current emphysema is aggravated by the Veteran’s service-connected inactive pulmonary tuberculosis, status post resection of right lung? The term “aggravated” means a lasting increase in severity of the underlying disability that is not due to the natural progress of the disease. The examiner must 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 must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel