Citation Nr: 18148912 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-44 483 DATE: November 9, 2018 REMANDED The claim of entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, prior to September 4, 2014, and in excess of 40 percent thereafter, is remanded. The claim of entitlement to service connection for a back disability is also remanded for additional development. Preliminary Matters The Veteran had honorable active duty service with the United States Army from February 1969 to October 1970. As regards to the increased rating claim for the Veteran’s service-connected diabetes mellitus, by way of background, the Board of Veterans’ Appeals (Board) notes that in a May 2011 rating decision, the local Regional Office (RO) awarded service connection for diabetes mellitus and assigned a 20 percent disability rating, effective as of November 30, 2010. In December 2011, the Veteran filed a notice of disagreement (NOD), appealing the effective date of the award of service connection as well as the initial disability rating assigned. Thereafter, while the Veteran’s claims for an earlier effective date as well as for a higher initial evaluation were already on appeal, in November 2012, the Veteran filed a claim for an increased rating for his service-connected diabetes mellitus. In a January 2014 rating decision, the RO, in pertinent part, continued the initial evaluation assigned to the Veteran’s service-connected diabetes mellitus. Then, in a November 2014 rating decision, the RO, in pertinent part, granted an earlier effective date for the award of service connection for diabetes mellitus, assigning a new effective date of November 30, 2009. The RO also increased the disability rating for the Veteran’s service-connected diabetes mellitus from 20 percent to 40 percent, effective as of September 4, 2014. While the Veteran submitted two separate filings, including a NOD and an increased rating claim, following the May 2011 rating decision, the Board construes the Veteran’s filings as an intent to also appeal the initial evaluation assigned for his service-connected diabetes mellitus. Significantly, the Board notes that in the first filing dated December 2011, the Veteran appealed both the effective date assigned and the initial evaluation. This filing was submitted within one year of the May 2011 rating decision. As such, the Board finds that the Veteran timely filed a NOD appealing the initial evaluation assigned; thus, the issue has been restated accordingly on the title page. Additionally, as previously noted, during the pendency of the appeal, in a November 2014 rating decision, the RO increased the Veteran’s evaluation for the service-connected diabetes mellitus disability to 40 percent disabling, effective as of September 4, 2014. When a Veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Turning to the claim of entitlement to service connection for a back disability, by way of background, the Board notes that in November 1971, the Board, in pertinent part, denied service connection for a back disability. The Veteran did not appeal this decision; thus, it became final. In March 2005, the Veteran filed a request to reopen his claim of entitlement to service connection for a back disability. In a July 2005 rating decision, the RO denied the Veteran’s petition to reopen the claim on the basis that no new and material evidence had been submitted. One month later, in August 2005, the Veteran filed a statement expressing his disagreement with the RO’s denial of his petition to reopen his claim, as it was his belief that the evidence he had submitted in support of his claim was new and material. The Board finds that this statement is consistent with the requirements for a valid and timely NOD. See 38 C.F.R. § 20.201 (in effect prior to March 24, 2015). As such, the Board finds that the Veteran timely filed a NOD to the July 2005 rating decision. The record does not reflect that the Veteran was issued a statement of the case (SOC) in response to his August 2005 statement. In November 2010, the Veteran filed a request to reopen his claim of service connection for a back disability. In a May 2011 rating decision, the RO, in pertinent part, denied the Veteran’s petition to reopen his claim, as no new and material evidence had been submitted. In August 2011, the Veteran filed a timely NOD to the May 2011 rating decision. A SOC was then issued in November 2014, and the Veteran timely filed his substantive appeal in December 2014. Based on the above procedural history of the back disability claim, while the RO has deemed this matter to be on appeal from the May 2011 rating decision, the Board finds that this matter is actually on appeal from the July 2005 rating decision, which initially denied the Veteran’s petition to reopen his claim of service connection for a back disability. The Board considers the August 2005 statement a timely NOD; therefore, the July 2005 rating decision never became final. 38 C.F.R. § 20.201. As it pertains to the back disability claim, the Board further notes that, generally, where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. 38 U.S.C. §5108; 38 C.F.R. § 3.156(a). However, when the Department of Veterans Affairs (VA) receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). In this case, the last prior denial of the claim of service connection for a back disability was issued by the Board in its November 1971 decision. At the time of the November 1971 Board decision, all of the Veteran’s service treatment records and military personnel records were not associated with the claims file. After a review of the evidence, the Board finds that relevant service treatment records have been added to the record since the last prior final decision. Specifically, these records show that the Veteran complained of back pain on various occasions in 1970. As such, the Board will reconsider the claim of service connection for a back disability on a de novo basis, without the need for new and material evidence. The Board notes that in his December 2014 substantive appeal (VA Form 9), the Veteran requested a hearing. In July 2018, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claims currently on appeal. As a final matter, in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability. The Court explained, “When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.” Id. at 454. In this case, the Veteran has not asserted or contended that he is unemployable due to the service-connected diabetes mellitus. Thus, the issue of entitlement to TDIU benefits is not part and parcel of the underlying increased rating issue presently before the Board. For these reasons, the issue of entitlement to TDIU benefits is not before the Board at this time; thus, no further action is required.   REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to an increased rating for his service-connected diabetes mellitus, as well as service connection for a back disability. The record reflects that the Agency of Original Jurisdiction (AOJ) addressed both issues in a November 2014 SOC. Since the November 2014 SOC, a VA examination was conducted for the Veteran’s service-connected diabetes mellitus in June 2015. In addition to the June 2015 VA examination report, voluminous new VA treatment records have been associated with the claims file. However, the AOJ has not issued a supplemental statement of the case (SSOC) addressing either issue since receipt of this additional evidence. A SSOC must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). As noted above, this provision only applies to evidence submitted by the Veteran. Therefore, both issues must be remanded to allow for AOJ consideration of the new medical evidence. Additionally, as regards to the back disability claim, the Veteran has consistently and unvaryingly asserted that he is entitled to service connection for a back disability, as he believes that this disability was aggravated by his active service. The record reflects that the Veteran suffered a back injury as a result of a motor vehicle accident prior to entering service. See May 2013 Veteran statement. As noted above, service treatment records show that the Veteran sought treatment for back pain on several occasions in 1970. Post-service private and VA treatment records show that the Veteran has sought continuous treatment for his back. An October 2012 private treatment record shows that the Veteran underwent a magnetic resonance imaging (MRI) of his lumbar spine in June 2012, which revealed degenerative disc disease (DDD), spondylosis, and disc bulges causing spinal stenosis in the lumbar spine. The record reflects that the Veteran has never been afforded a VA examination for his claimed back disability. VA must provide a VA medical examination or obtain a nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that the Veteran should be scheduled for an examination to determine whether there is clear and unmistakable evidence that the Veteran’s back condition preexisted service, and also whether the Veteran’s condition was not aggravated while in service. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his back disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current back disabilities associated with the Veteran. (b) Determine whether there is clear and unmistakable evidence that the Veteran’s back disability preexisted service. Note that “clear and unmistakable” evidence means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. (c) Regardless of the conclusion to subpart (b), determine whether there is clear and unmistakable evidence that the Veteran’s back disability was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (d) If there is no clear and unmistakable evidence that the Veteran’s back disability preexisted service and was not aggravated by service, then the Veteran must be considered to have been sound at entry, and based upon that premise, the question to answer would be whether it is at least as likely as not that the Veteran’s back disability is directly related to service, to include whether the Veteran’s back disability had its onset within one year of the Veteran’s service discharge. In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran’s statements regarding in-service injury associated with the back, and all VA and private treatment records. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the SOC issued in November 2014. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel