Citation Nr: 18142990 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-26 867 DATE: October 17, 2018 ORDER New and material evidence having not been received; the claim of entitlement to service connection for chronic prostatitis is denied. New and material evidence having not been received; the claim of entitlement to service connection for low back pain is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for chronic left knee strain is remanded. Entitlement to an increased rating in excess of 10 percent for chest pain due to undiagnosed illness is remanded. Entitlement to an increased rating in excess of 30 percent for tension headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an August 2004 Board decision, service connection for chronic prostatitis was denied. The Veteran did not file a substantive appeal. As such, the August 2004 Board decision denying service connection for chronic prostatitis became final. 2. The additional evidence since submitted or otherwise obtained is either cumulative or redundant of evidence already of record and previously considered or does not relate to an unestablished fact necessary to substantiate the claim of service connection for chronic prostatitis. 3. In an August 2004 Board decision, service connection for low back pain was denied. The Veteran did not file a substantive appeal. As such, the August 2004 Board decision denying service connection for low back pain became final. 4. The additional evidence since submitted or otherwise obtained is either cumulative or redundant of evidence already of record and previously considered or does not relate to an unestablished fact necessary to substantiate the claim of service connection for low back pain. CONCLUSIONS OF LAW 1. The August 2004 Board decision, which denied service connection for chronic prostatitis became final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence not having been received, service connection for chronic prostatitis is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. The August 2004 Board decision, which denied service connection for low back pain became final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence not having been received, service connection for low back pain is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to March 1985 and from September 1990 to June 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran withdrew his appeal as to the issue of entitlement to service connection for a right knee disability prior to certification to the Board. See May 2016 Report of General Information. As such, that issue is no longer on appeal, and no further consideration is necessary. Additionally, the Board notes evidence has been received into the record with the requisite waivers of initial RO consideration. See Correspondence received June 2, 2017. VA’s Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA’s duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO sent the Veteran a letter in October 2012 that complies with statutory notice requirements. Therein, the RO notified the Veteran of the evidence VA was responsible for obtaining and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, the RO notified the Veteran of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why his claim was previously denied. Thus, VA has satisfied the notification and duty-to-assist provisions of the law, and no further action pursuant to the VCAA need be undertaken on the Veteran’s behalf. The Veteran has not identified any other pertinent evidence that remains outstanding. Whether new and material evidence had been submitted to reopen claims of service connection for chronic prostatitis and low back pain. Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is described under 38 U.S.C. § 5108, which provides that “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 of the claim.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the August 2004 Board decision, which denied service connection for chronic prostatitis and low back pain, the pertinent evidence of record consisted of the Veteran’s claim for benefit, available service treatment and VA treatment records, buddy statements and VA medical examination reports. The Board determined that the Veteran had a diagnosis of chronic prostatitis that did not begin during service nor was medically linked to his period of active service, or to an undiagnosed illness, or to a medically unexplained chronic multi-symptom illness. The Board also determined that the Veteran had a diagnosis of mild scoliosis, but did not have a current back disability that is medically linked to his period of active service or to an undiagnosed illness or a medically unexplained chronic multi-symptom illness. The Veteran was properly notified of the August 2004 Board decision; the Veteran failed to appeal the claims and the August 2004 Board decision became final based on the evidence of record at that time. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The Veteran has not presented evidence since the August 2004 Board decision that relates to an unestablished fact necessary to substantiate the claims for service connection for chronic prostatitis and low back pain. Since the August 2004 Board decision, the evidence received into the record includes updated medical treatment records, and a May 2016 back VA examination. This additional evidence submitted in connection with this claim is new as it was previously of record and considered, however, it is not material since it does not tend to show the Veteran has current chronic prostatitis or low back disability that was incurred or related to service. The Board acknowledges the Veteran’s statements that his chronic prostatitis and low back disability are related to service. However, despite the “low threshold” announced in Shade, the Board must still consider whether this evidence could reasonably substantiate the claim, if the claim was reopened, including by triggering VA’s duty to obtain a VA examination. The evidence of record is silent as to any current chronic low back pain and there is no objective evidence of current chronic prostatitis. In fact, the most recent treatment records indicate the Veteran’s prostate is normal and are silent as to any complaints or treatments for low back pain. Thus, the lay assertions of record, alone, are insufficient to support reopening of his previously denied claims of service connection for chronic prostatitis and low back pain. In sum, the evidence received since the August 2004 Board decision does not constitute competent evidence tending to show that the Veteran has current chronic prostatitis or low back pain attributable to his military service. Accordingly, the evidence received since the most recent final denial of the claim is not new and material, and reopening of the claims of service connection for chronic prostatitis or low back pain is not warranted. Until the evidence meets the threshold burden of being new and material to reopen the claims, reopening of the claims must be denied, and the merits-based standard of benefit of the doubt does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to increased ratings in excess of 10 percent for chronic left knee strain, in excess of 10 percent for chest pain and in excess of 30 percent for tension headaches are remanded. The Board finds an additional examination is needed to obtain the current severity of the Veteran’s left ankle disability. The record reflects the Veteran last underwent VA examinations in November 2012. Remand is necessary to determine the current severity of the Veteran’s disabilities. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 2. Entitlement to a TDIU is remanded. Finally, the decision on the issue remanded herein may impact the Veteran’s claim for TDIU. Therefore, the Board finds these issues to be inextricably intertwined and the Board must remand the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected left knee, chest pain and tension headache disabilities. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The electronic claims file, including a copy of this remand should be reviewed in conjunction with this examination. With respect to the Veteran’s service-connected left knee disability, the examiner should conduct range of motion testing (expressed in degrees) of the left knee on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate) and if possible, each joint should be contrasted with the range of the opposite undamaged joint. Correia, 28 Vet. App. at 168-70. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. (Continued on the next page)   In addition, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the left knee due to pain and/or any other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel