Citation Nr: 18151761 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-33 769 DATE: November 20, 2018 ORDER As new and material evidence has not been received, the claim to reopen entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a chronic renal condition, to include Gitelman's syndrome is remanded. Whether new and material evidence has been received to reopen the claim for service connection for hypokalemia (low potassium) is remanded. FINDINGS OF FACT 1. In a July 2007 rating decision, the Veteran was denied entitlement to service connection for a lumbar spine disability (claimed as low back). The Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of notification and the decision is final. 2. The evidence submitted since the July 2007 decision denying the claim for service connection for a low back disability is cumulative of the evidence previously considered and/or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria to reopen the claim for entitlement to service connection for a low back disability have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1968 to August 1972. The Veteran had additional service in the Air National Guard from October 1980 to October 1984, and from August 1999 to December 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied back, renal and hypokalemia claims. The Board notes that the RO erroneously listed the issue of service connection for benign prostatic hypertrophy (BPH) in the May 2016 statement of the case (SOC). The claim for service connection for BPH was not addressed in the rating decision on appeal, nor was a notice of disagreement filed within one year of the denial of that claim in the July 2007 rating decision. Rather, the issue that was claimed and addressed in the 2012 rating decision on appeal, and with which the Veteran disagrees, was service connection for a kidney/renal condition. As the reasons and bases portion of the SOC included discussion of the renal claim, the Board will accept jurisdiction over the renal claim. However, the BPH claim was not addressed in the rating decision and is a distinct disability from the renal disability. See Boggs v. Peake, 520 F.3d 1330 (Fed.Cir.2008). Accordingly, a claim involving service connection for BPH is not properly in appellate status and is not before the Board. 38 C.F.R. §§ 20.200. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2018). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2018). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The July 2007 decision confirming the prior denial of service connection for a low back condition, determined that no evidence linking the Veteran’s low back disability to service had been submitted. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Board notes that service records from the Veteran’s period of National Guard service were added to the record after the issuance of the July 2007 rating decision. However, to the extent those records are not duplicates of those already considered in the 2007 decision, they do not relate to, or contain evidence of, the Veteran’s claimed in-service injury or back symptoms. As such, 38 C.F.R. §3.156(c) is inapplicable in the instant case. The evidence that has been received since the July 2007 rating decision also includes additional private treatment records, which contain evidence of on-going treatment and management of chronic low back pain with documented diagnoses of lumbar spondylosis and multiple facet arthropathy. However, the private treatment records are silent for any link between the Veteran’s low back condition and his service. In fact, throughout the private treatment records, the Veteran has himself, repeatedly attributed the onset of any real back problems to multiple motor vehicle accidents, which occurred in or around 1995, while the Veteran was not on active duty. As such, while new, the evidence does not relate to an unestablished fact necessary to substantiate the claim. Accordingly, new and material evidence has not been submitted, the claim is not reopened, and the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a chronic renal condition 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypokalemia The Veteran contends that his diagnosed chronic renal condition was caused by an episode of penile discharge (diagnosed as gonorrhea). VA treatment records contain indicate that the Veteran has been diagnosed with both a chronic renal condition, to include Gitelman Syndrome. The Board finds that a VA examination with an opinion is warranted. The medical evidence suggests the chronic low potassium may be related to the Gitelman syndrome; thus, that claim is intertwined with the renal claim. Relevant ongoing medical records should also be requested. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his renal condition and low potassium. After securing the necessary release, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are not available, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to determine the nature of the Veteran’s renal condition and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s chronic renal condition, to include Gitelman’s syndrome arose in service or is related to service, to include the gonorrhea therein. Please explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis