Citation Nr: 18146986 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-19 184A DATE: November 2, 2018 ORDER As new and material evidence has been received, entitlement to service connection for a lumbar spine disability is reopened. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. An unappealed April 1990 rating decision that denied a claim for service connection for a lumbar spine disability is final. 2. Evidence received since the April 1990 rating decision is new and material and raises a reasonable possibility of substantiating entitlement to service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The April 1990 rating decision that denied service connection for a lumbar spine disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the last final denial of service connection for a lumbar spine disability, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to January 1990. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the RO issued a February 2015 rating decision that, in pertinent part, decreased the assigned rating from 20 percent to 10 percent for the service-connected gastroesophageal reflux disease (GERD) and reopened but denied service connection for the lumbar spine disability. Subsequently, in an April 2015 rating decision, the RO denied service connection for sleep apnea and coronary artery disease (CAD), and again denied service connection for the lumbar spine disability. The Veteran filed a timely May 2015 notice of disagreement as to the decreased rating for the GERD and to the denial of service connection for the lumbar spine disability and a separate May 2015 notice of disagreement to the denial of service connection for CAD and sleep apnea. Subsequently, an April 2016 statement of the case (SOC) was issued addressing the decreased rating for GERD and the denial of service connection for the lumbar spine, sleep apnea, and CAD disabilities. In May 2016, the Veteran perfected his appeal only to the denial of service connection for the lumbar spine, sleep apnea, and CAD disabilities. Therefore, the appeal of the decreased rating for GERD was no longer on appeal. Additionally, in a September 2016 rating decision, service connection for the CAD disability was granted and because such award is considered a full benefit of what was sought on appeal, the issue of service connection for CAD is no longer in appellate status. Further, the Board notes that the issues of service connection for tinnitus, increased rating for the service-connected headache disability, and entitlement to a total disability rating due to individual unemployability (TDIU) are also part of different appeal streams that are currently being developed at the RO at the post-notice of disagreement stage. The RO has not yet issued a statement of the case (SOC) regarding these claims. The Board acknowledges that ordinarily those claims should be remanded for issuance of a SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notices of disagreement have been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address these claims at this time. The Veteran did not request a Board hearing for the currently pending claims. See May 2016 VA Form 9. As new and material evidence has been received, entitlement to service connection for a lumbar spine disability is reopened. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 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 (2010). Here, the RO denied the Veteran’s service connection claim for a lumbar spine disability in an April 1990 rating decision, finding that there was no evidence of a current disability of the lumbar spine. The evidence considered at the time included service treatment records. Notice of the April 1990 rating decision was sent to the Veteran in May 1990. The Veteran did not appeal, and new and material evidence was not received within one year of notice of the decision. Thus, the April 1990 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the April 1990 denial of the claim includes an August 2016 VA examination that diagnosed the Veteran with degenerative arthritis of the lumbar spine. This medical evidence relates to the unestablished element of a current disability in the prior final denial. The additional evidence received since the April 1990 final denial is therefore new and material. The criteria for reopening the claim for service connection for a lumbar spine disability are therefore met. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that his lumbar spine disability had onset or is otherwise related to service or that it was proximately caused or aggravated by his service-connected left knee disability. First, the Veteran reported that he was in receipt of Social Security Disability benefits from the Social Security Administration (SSA) for his low back disability. See March 2014 VA treatment records. However, there is no evidence that the SSA records have been requested and none are associated with the claims file. Therefore, a remand is warranted to obtain these records. Next, the Veteran reported in September 2016 VA treatment records that he filed a workman’s compensation claim for an injury to his back when he worked for the United States Postal Service. There is no evidence that the records related to the claim for workman’s compensation have been requested and none are associated with the claims file. Thus, a remand is warranted to obtain these records. Additionally, a remand is warranted to obtain an addendum medical opinion as to the nature and etiology of the Veteran’s lumbar spine disability. The Veteran was afforded a VA-sponsored examination in January 2015. The examiner, a physician, concluded that it was less likely than not that the Veteran’s low back disability had its onset during or was related to service because there was no documented history of treatment for low back pain until after service discharge. However, service treatment records show the Veteran sought treatment for low back pain several times during service. See January 1989 and December 1989 service treatment records. This medical opinion is inadequate because it is based on a faulty factual premise. Additionally, no etiology opinion was provided for the Veteran’s contention that his low back disability is secondary to his service-connected left knee disability. The Veteran was afforded another VA examination in August 2016 and a medical opinion was provided in September 2016. The examiner, a nurse practitioner, concluded that it was less likely than not that the Veteran’s low back disability was the result of the Veteran’s service-connected left knee disability because a preponderance of the medical literature had not established a cause and effect relationship between a knee condition and arthritis of the back. Further, the examiner found that it was less likely than not that the Veteran’s back strain during service in 1989 was related to the current back disability because the back strain occurred 27 years before the examination. The September 2016 medical opinion is inadequate in its current form for several reasons. As to the opinion for secondary service connection, the examiner failed to provide an opinion as to whether the service-connected left knee disability aggravated the low back disability. As to direct service connection, the examiner’s opinion that the Veteran’s low back disability was less likely than not related to “a back strain that occurred 27 years ago” failed to consider that the Veteran had sought treatment for low back pain multiple times before the date of this examination and as early as May 1992. Thus, a remand is warranted to obtain an adequate medical opinion as to the nature and etiology of the Veteran’s low back disability. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service connected chronic gastritis with GERD and Barrett’s esophagus is remanded. The Veteran also asserts that his obstructive sleep apnea was proximately caused or aggravated by his service-connected chronic gastritis with GERD and Barrett’s esophagus. In support of his claim, the Veteran submitted a medical article entitled, Gastroesophageal Reflux Disease and Sleep Disorders: Evidence for a Causal Link and Therapeutic Implications. To date, VA has not afforded the Veteran a VA examination or obtained a medical opinion addressing this claim. Accordingly, an examination and medical opinion is necessary prior to further adjudication. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as discussed above, the Veteran has been in receipt of SSA disability benefits, but these records are not associated with the claims file. A remand is warranted to obtain these records. The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Contact SSA and obtain copies of records related to the Veteran’s SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. Associate any records obtained with the claims file. 3. Contact the appropriate agency and request a copy of all determinations granting, denying, or confirming an award of workman’s compensation benefits, as well as all medical and employment records relied upon in making the determination(s). Any authorization necessary to obtain such records should be specifically requested from the Veteran. All efforts to obtain such records should be documented in the record. If it becomes reasonably certain that such records do not exist or that further efforts to obtain them would be futile, it should be noted in the record. 4. Then, obtain an addendum opinion regarding the nature and etiology of the low back disability. Whether an additional physical examination is warranted is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should address the following: a) Identify each current disability of the low back. b) For each current disability of the low back, provide an opinion as to whether it had its onset or is otherwise related to active service. *Discuss the Veteran’s low back strain reported in January and two December 1989 service treatment records, as well as the treatment for low back pain as early as May 1992. c) For each current disability of the low back, provide an opinion as to whether the service-connected left knee disability proximately caused the low back disability. d). For each current disability of the low back, provide an opinion as to whether the service-connected left knee disability aggravated the low back disability. *A complete rationale for each conclusion must be provided. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the obstructive sleep apnea, to include as secondary to the service-connected chronic gastritis with GERD with Barrett’s esophagus. All necessary testing and evaluations should be conducted. After a thorough review of the claims file, the examiner should respond to the following: a) Provide an opinion as to whether the Veteran’s obstructive sleep apnea was proximately caused by the service-connected chronic gastritis with GERD and Barrett’s esophagus. b) Provide an opinion as to whether the Veteran’s obstructive sleep apnea is aggravated by the service-connected chronic gastritis with GERD and Barrett’s esophagus. Consider the medical treatise article submitted by the Veteran. c) Provide an opinion as to whether the Veteran’s obstructive sleep apnea had onset during or is otherwise related to service. *A complete rationale for each conclusion must be provided. 6. Readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel