Citation Nr: 18143079 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-35 697A DATE: October 18, 2018 ORDER New and material evidence has not been received to reopen the previous, final denial of a claim for service connection for osteoporosis, to include as secondary to diabetes mellitus, type II. The Veteran's October 3, 2014 statement expressing disagreement with the August 2013 rating decision's denial of a total disability rating for individual unemployability due to service-connected disabilities (TDIU) cannot be accepted as a timely Notice of Disagreement (NOD). FINDINGS OF FACT 1. In November 2011, the Board denied entitlement to service connection for osteoporosis on a direct basis and as secondary to the Veteran’s service-connected diabetes mellitus, type II. 2. The evidence received since the November 2011 Board decision denying service connection for osteoporosis, to include as secondary to diabetes mellitus, type II, does not raise a reasonable possibility of substantiating the claim. 3. In an August 2013 rating decision, in pertinent part, the Regional Office (RO) denied entitlement to a TDIU. On August 8, 2013, the RO notified the Veteran of that decision and the procedures for filing an NOD. On October 3, 2014, more than one year after the August 8, 2013 notification letter, the Veteran expressed disagreement with the August 2013 rating decision's denial of a TDIU and his intent to appeal. CONCLUSIONS OF LAW 1. The November 2011 Board decision’s denial of entitlement to service connection for osteoporosis, to include as secondary to diabetes mellitus, type II, is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The criteria for reopening the previous, final denial of the claim for service connection for osteoporosis, to include as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156. 3. The Veteran's October 2014 statement expressing disagreement with the August 2013 rating decision's denial of a TDIU cannot be accepted as a timely NOD. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1974. Initially, the issue of entitlement to service connection for degenerative disc disease of the lumbar spine is REFERRED to the RO for appropriate action. The RO treated the Veteran’s May 2012 statement regarding this condition as an informal petition to reopen the Board’s November 2011 denial of service connection for osteoporosis, (now claimed as degenerative disc disease). To the extent that the Veteran’s May 2012 statement could be construed as a petition to reopen the previously denied service connection claim for osteoporosis, as the RO did here, the Board will address that issue further below. However, after a full review of the record, the Board finds that the May 2012 statement also could be construed as a new, original claim for service connection for lumbar spine degenerative disc disease. Throughout the appeal of the original service connection claim for osteoporosis, which the Board denied in November 2011, the Veteran framed that claim specifically as entitlement to service connection for osteoporosis, and VA developed and adjudicated the claim accordingly. In contrast, the Veteran did not frame the claim generally as one for service connection for a lumbar spine condition, to include all possible diagnoses; nor did the RO or the Board frame the claim that broadly when developing and adjudicating it. Moreover, during the pendency of the prior appeal of the osteoporosis claim, the Veteran consistently and primarily contended that his osteoporosis was diagnosed many years after service and was secondary to his service-connected diabetes mellitus, as opposed to directly related to service; the RO and the Board developed and adjudicated the appeal accordingly, focusing on this secondary service connection theory. In contrast, throughout the pendency of the present appeal, the Veteran specifically has framed the service connection claim as one for lumbar spine degenerative disc disease, which he primarily contends is directly related to a specific, reported injury in August 1973, during his active service in Germany. See December 2012 statement; see also statement in December 2013 NOD. Moreover, the medical evidence suggests that his osteoporosis and lumbar spine degenerative disc disease diagnoses are two distinct medical conditions. See generally private and VA treatment records (consistently referencing lumbar degenerative disc disease, and osteoporosis of spine and hips, as separate medical issues). In summary, the Board finds that splitting the issues into two separate ones – a petition to reopen the previously denied claim for service connection for osteoporosis, to include as secondary to diabetes mellitus, type II (addressed herein), and a new, original service connection claim for lumbar spine degenerative disc disease (referred to the RO herein) – is warranted. A waiver of initial RO review of additional evidence submitted by the Veteran is automatic in substantive appeals filed after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. 38 U.S.C. § 7105(e). Here, the Veteran filed a substantive appeal in July 2016 and submitted additional evidence after the May 2016 Statements of the Case (SOCs). To the extent that any such evidence was pertinent to the issues on appeal, he did not request AOJ review of that evidence in writing. Also, to the extent that the RO obtained additional evidence after the May 2016 SOCs, the Board finds such evidence was not pertinent to the issues on appeal. The Appellant has not raised any duties to notify or duty to assist issues. 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations for consideration were provided to the Veteran in the May 2016 SOCs and will not be repeated here in full.   For the reasons discussed below, the petition to reopen the previous, final denial of the claim for service connection for osteoporosis, to include as secondary to diabetes, type II, is denied; and the Veteran’s October 2014 statement expressing disagreement with the August 2013 rating decision’s denial of a TDIU and his intent to appeal cannot be accepted as a timely NOD. 1. Petition to Reopen In November 2011, the Board denied entitlement to service connection for osteoporosis, to include as secondary to service-connected diabetes mellitus, type II. The Board found that the Veteran’s osteoporosis: did not manifest during active service or for many years after service; was not otherwise related to service; and was not caused or aggravated by his service-connected diabetes mellitus, type II. The Board decision became final on November 8, 2011, when it was mailed. (On January 3, 2012, the Veteran filed a motion to reconsider the November 2011 Board decision, which the Board denied in April 2017.) After a full review of the record, the petition to reopen the claim for service connection osteoporosis, to include as secondary to diabetes mellitus, type II, is denied because new and material evidence has not been received since the November 2011 Board decision. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board, therefore, is whether new and material evidence has been received, regardless of how the RO characterized the issue. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). In determining whether newly-received evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Newly submitted evidence may be material if it provides a more complete picture of the circumstances surrounding the origin of the Veteran’s disability. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). In this case, new and material evidence has not been received to reopen the previously denied claim for service connection for osteoporosis. Since the November 2011 Board decision, VA has received additional medical evidence, including VA outpatient treatment records, private treatment records, Social Security Administration (SSA) records, VA examination reports, and medical treatises. Many of those documents do not reference or pertain to the Veteran’s osteoporosis at all. To the extent that some of them do reference his osteoporosis, the evidence was not material because it did not include medical findings competently suggesting that his osteoporosis was caused or aggravated by his service-connected diabetes mellitus type II, or directly related to service. Nor did such evidence suggest that his osteoporosis manifested within one year of active service or soon after service. Moreover, since the November 2011 Board decision, VA has received additional lay statements, which the Board must presume credible under Justus, supra. However, such statements are not material because they do not competently suggest that his osteoporosis was caused or aggravated by his service-connected diabetes mellitus type II, or directly related to service. Moreover, to the extent that such statements reference his diagnosis of lumbar spine degenerative disc disease, and suggest that this condition is directly related to a specific, alleged injury during his active service in Germany, they are not material because they do not refer to his osteoporosis, a distinct medical condition. (As discussed above, the claim for service connection for lumbar spine degenerative disc disease is referred to the AOJ for appropriate action.) In summary, the Board finds that the additional evidence summarized above that VA has received since the November 2011 Board decision is not new and material because it does not raise a reasonable possibility of substantiating the claim for service connection for osteoporosis. Therefore, the petition to reopen that claim is denied. See 38 C.F.R. § 3.156. 2. Timeliness of NOD In an August 2013 rating decision, in pertinent part, the RO denied entitlement to a TDIU. On August 8, 2013, the RO notified the Veteran of that decision and the procedures for filing an NOD. On October 3, 2014, the Veteran submitted a statement expressing disagreement with the August 2013 rating decision's denial of a TDIU and his intent to appeal. However, in January 2015, the RO notified the Veteran that it could not accepted the October 2014 statement as an NOD because it was untimely. Prior to March 24, 2015, there was no requirement for an NOD to be filed on a standardized form. During the relevant period, 38 C.F.R. § 20.201 (2012) defined an NOD as: A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. . . .While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. The requirement that the NOD must be filed within one year from the date that the agency of original jurisdiction (AOJ) mails notice of the determination to the veteran has remained unchanged. 38 C.F.R. § 20.302(a) (2012 and 2016). The regulations also address NODs in the context of rating decisions, like the August 2013 rating decision, which adjudicate multiple issues: If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the NOD must make that clear. 38 C.F.R. § 20.201 (2012). In this case, in an August 2013 rating decision, the RO adjudicated multiple issues, including entitlement to service connection for osteoporosis and entitlement to a TDIU, both of which were denied. On August 8, 2013, the RO notified the Veteran of that decision, including the denial of the TDIU claim, and explained the procedures for filing an NOD. On December 27, 2013, the Veteran timely filed an NOD form that expressly only challenged the August 2013 rating decision’s denial of service connection for osteoporosis, to include as secondary to service-connected diabetes mellitus, type II; that NOD form does not reference the TDIU claim. Indeed, between August 8, 2013 and August 8, 2014, he did not submit any communication that reasonably could be construed as expressing disagreement with the August 2013 rating decision’s denial of the TDIU claim. An October 3, 2014 report of general information notes that he asked to RO to add the TDIU issue to the current appeal, i.e., the December 2013 NOD that was pending at that time. However, as this communication was not received within one year of the August 8, 2013 rating decision notice, the Board finds that the RO properly rejected the October 2014 informal NOD as untimely. The Veteran has not identified any submission dated between August 8, 2013 and August 8, 2014 as an overlooked NOD regarding the August 2013 rating decision’s denial of the TDIU claim; nor does he contend that he submitted an NOD regarding the August 2013 denial of that claim before October 2014. The Board recognizes the Veteran’s implied suggestion that the October 2014 NOD was untimely because it takes a long time for mail (e.g., the August 2013 rating decision notice) to reach his home, which is outside of the continental United States. See January 2017 report of general information. However, the Board rejects this argument. He clearly was able to comply with the regulations governing NOD filing deadlines, despite any possible mailing delays, because he timely filed a December 2013 NOD form challenging the August 2013 rating decision’s denial of the claim for service connection for osteoporosis. Moreover, the October 2014 NOD at issue here arose from a phone call he made to the RO, not from a document he had mailed. There is nothing in the record to suggest he was not capable of making such a phone call within the one-year appeal period. In summary, there was no timely submission received that can reasonably be construed as expressing disagreement with the August 2013 rating decision’s denial of the TDIU claim and a desire for appellate review. Therefore, the Veteran did not file a timely NOD with this denial, and the October 2014 NOD is untimely. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel