Citation Nr: 18156291 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 10-23 160 DATE: December 7, 2018 ORDER The application to reopen the claim of entitlement to service connection for low back disability is denied. The application to reopen the claim of entitlement to service connection for neuropathy, including sciatica, of the left leg is denied. The application to reopen the claim of entitlement to service connection for neuropathy, including sciatica, of the right leg is denied. The application to reopen the claim of entitlement to service connection for depression is denied. REMANDED Entitlement to an effective date earlier than June 5, 2009, for the grant of service connection for tinnitus, is remanded. FINDINGS OF FACT 1. A May 2007 rating decision denied service connection for low back disability. The Veteran did not timely appeal the decision nor submit new and material evidence within one year of the decision. 2. Evidence received since the May 2007 rating decision that denied entitlement to service connection for low back disability is cumulative in relation to the evidence of record at the time of the prior final denial and does not raise a reasonable possibility of substantiating the claim. 3. A May 2007 rating decision denied service connection for neuropathy, including sciatica, of the left leg and right leg. The Veteran did not timely appeal the decision nor submit new and material evidence within one year of the decision. 4. Evidence received since the May 2007 rating decision that denied entitlement to service connection for neuropathy, including sciatica, of the left leg and right leg is cumulative in relation to the evidence of record at the time of the prior final denial and does not raise a reasonable possibility of substantiating the claims. 5. A May 2007 rating decision denied service connection for depression. The Veteran did not timely appeal the decision nor submit new and material evidence within one year of the decision. 6. Evidence received since the May 2007 rating decision that denied entitlement to service connection for depression is cumulative in relation to the evidence of record at the time of the prior final denial and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. As new and material evidence has not been received since the May 2007 rating decision that denied entitlement to service connection for low back disability, the claim of entitlement to service connection for low back disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has not been received since the May 2007 rating decision that denied entitlement to service connection for neuropathy, including sciatica, of the left leg, the claim of entitlement to service connection for neuropathy of the left leg is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has not been received since the May 2007 rating decision that denied entitlement to service connection for neuropathy, including sciatica, of the right leg, the claim of entitlement to service connection for neuropathy of the right leg is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. As new and material evidence has not been received since the May 2007 rating decision that denied entitlement to service connection for depression, the claim of entitlement to service connection for depression is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1960 to December 1961. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of July 2009. In November 2011, the Veteran testified at a Board hearing. A transcript of the hearing is of record. In January 2018, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the hearing was no longer employed by the Board and that the Veteran therefore had a right to request another hearing. The Veteran did not subsequently request a new Board hearing. In March 2018, the Veteran filed a notice of disagreement (NOD) concerning the effective date of the grant of service connection for tinnitus, and concerning the initial rating assigned for the grant of service connection for bilateral hearing loss, as determined by a September 2017 rating decision. To date, the agency of original jurisdiction (AOJ) has not issued a statement of the case (SOC) respecting these two appealed issues. Because the Veterans Appeals Control and Locator System (VACOLS) reflects that the AOJ has acknowledged the filing of an NOD as to the initial rating assigned for bilateral hearing loss, a remand pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41(1999) to direct the issuance of an SOC is not now required. However, because the AOJ has not acknowledged the Veteran’s NOD as to the effective date assigned for service connection for tinnitus, a remand of that issue is required under Manlincon. Service Connection In general, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). There must be: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service or the presumptive period following service is an alternative means of establishing service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). In general, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception provides that VA shall reopen a disallowed claim if new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108. VA will generally presume the credibility of the evidence in determining whether it is new and material. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence has been submitted is low. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for low back disability. An October 1990 decision of the Board denied service connection for a chronic back disability. The Veteran appealed to the United States Court of Veterans Appeals, which remanded the issue to the Board for additional development of medical evidence. In May 1993, the Board remanded the issue to the agency of original jurisdiction, which continued the service-connection denial by supplemental statements of the case of April 1994 and October 1994. The case was then returned to the Board, which again denied the claim in December 1995. While finding that the first and second elements of Shedden were established, the Board denied the claim because there was no nexus between the Veteran’s current back disability and the back symptoms noted in the service treatment records or the in-service back injuries described by the Veteran. As result of further filed claims, service connection for back disability was again denied by rating decisions of August 1996 and September 1996. In November 2006, the Veteran filed a service-connection claim for lumbar spine disability, which was denied by a rating decision of May 2007. The Veteran was notified of the decision by a letter of May 2007. The denial was based on the fact that no new and material evidence had been submitted with respect to the claim. The Veteran did not perfect an appeal with respect to the May 2007 rating decision or file new and material evidence within one year of being notified of the decision, which became final. In June 2009, the Veteran filed a request to reopen the claim of service connection for disability of the low back. Evidence added to the record since the May 2007 rating decision includes VA treatment records, Social Security Administration records, workers compensation records, and statements of the Veteran. The added evidence relates to the fact of current disability and is not probative of any missing element of service connection. Further evidence of current degenerative joint disease of the back and recurrent back pain is merely cumulative of other evidence already of record and is not new and material. See Anglin v. West, 203 F.3d 1343 (2000). An August 2009 VA treatment record indicates that the Veteran relates his current back disability to in-service injury. The latter assertion by the Veteran was already of record at the time of the 2007 denial of service connection. No evidence added to the record since the last final denial tends to make a connection between current disability and service more likely. Therefore, the Veteran’s claim of entitlement to service connection for low back disability may not be reopened. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for neuropathy including sciatica, left leg. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for neuropathy including sciatica, right leg. By a filing of November 2006, the Veteran sought service connection for neuropathy, including sciatica, of the left leg and right leg as a result of lumbar spine injury. The bilateral neuropathy claims were denied by a rating decision of May 2007. Direct service connection was denied for lack of neuropathy symptoms during service and no nexus between current disability and in-service injury. Secondary service connection was denied because the Veteran was not service-connected for the low back injury alleged to cause his bilateral neuropathy. The Veteran was notified of the decision by a letter of May 2007. He did not perfect an appeal with respect to the May 2007 rating decision or file new and material evidence within one year of being notified, and the decision became final. In June 2009, the Veteran filed a request to reopen the claim of service connection for neuropathy of the left leg and right leg. Evidence added to the record since the May 2007 rating decision includes VA treatment records, Social Security Administration records, workers compensation records, and statements of the Veteran. The added evidence relates to the fact of current disability and is not probative any missing element of service connection. For example, the SSA records contain a 1985 diagnosis of L4 and L5 radiculopathy. No new evidence added to the record tends to make more likely a connection between current disability and service, or between current disability and a service-connected disability. The new evidence is merely cumulative of other evidence of record and is not new and material. See Anglin v. West, 203 F.3d 1343 (2000). As discussed above, the Veteran continues to not be entitled to service connection for a low back disability. With no new and material evidence having been added to the record since the last final denial of the claims of entitlement to service connection for neuropathy of the left leg and right leg, to include as secondary to lumbar spine injury, the claims may not be reopened. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression. By a filing of November 2006, the Veteran sought service connection for depression as secondary to lumbar spine injury. The claim was denied by a rating decision of May 2007. Direct service connection was denied for lack of psychiatric symptoms during service and no nexus between current disability and in-service injury. Secondary service connection was denied because the Veteran was not service-connected for the low back injury alleged to cause his depression. The Veteran was notified by a letter of May 2007. He did not perfect an appeal with respect to the May 2007 rating decision or file new and material evidence within one year of being notified of the decision, which became final. In June 2009, the Veteran filed a request to reopen the claim of service connection for depression. The scope of the claim includes any disability that may reasonably be encompassed by the Veteran’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Evidence added to the record since the May 2007 rating decision includes VA treatment records, Social Security Administration records, workers compensation records, and statements of the Veteran. The added evidence relates to the fact of current disability and is not probative of any missing element of service connection. It is merely cumulative of other evidence of record and is not new and material. See Anglin v. West, 203 F.3d 1343 (2000). For example, SSA medical records of 1989 note a DSM-IV diagnosis of “organic mood disorder, depressed.” There is also a medical statement that the Veteran has a low back injury from 1985 and is depressed because of it. Because the Veteran is not service-connected for a low back disability, the latter statement does not make a nexus to a service-connected disability more likely and is therefore not new and material evidence. New and material evidence has not been submitted with respect to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability, to include depression. Therefore, the claim may not be reopened. REASONS FOR REMAND Entitlement to an effective date earlier than June 5, 2009 for the grant of service connection for tinnitus. In March 2018, the Veteran filed an NOD as to the effective date of the September 2017 grant of service connection for tinnitus. To date, no SOC has been issued as to that issue. Where a notice of disagreement has been filed but an SOC has not been issued, the Board must remand the claim to the AOJ so that an SOC may be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case as to entitlement to an effective date earlier than June 5, 2009 for the grant of service connection for tinnitus. Only if the Veteran or his representative submits a timely substantive appeal should the issue be returned to the Board for appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Counsel