Citation Nr: 18156681 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-47 590 DATE: December 11, 2018 ORDER The petition to reopen the claim of service connection for a lumbar spine disorder is denied. The petition to reopen the claim of service connection for an acquired psychiatric disorder is denied. Entitlement to an effective date earlier than March 27, 2013 for the grant of service connection for hypothyroidism is denied. REMANDED Service connection for a left shoulder disorder is remanded. Service connection for a left ear disorder is remanded. Service connection for radiculopathy/peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to an initial rating higher than 60 percent for the service-connected hypothyroidism is remanded. FINDINGS OF FACT 1. In July 2008, the Veteran filed claims for service connection for a lumbar spine disorder and depression that were then denied in a February 2010 rating decision. The Veteran did not file new and material evidence or a notice of disagreement within one year of the rating decision and it became final. 2. Since the February 2010 rating decision, new and material evidence has not been associated with the claims file that suggests the Veteran’s lumbar spine disorder began in or is related to an in-service injury. 3. Since the January 2013 rating decision, new and material evidence has not been associated with the claims file that suggests the Veteran’s bipolar disorder, depressed type, began in service or is related to service-connected disabilities. 4. The Veteran filed his claim for service connection for hypothyroidism on March 27, 2013, and there are no earlier communications that constitute an informal or formal claim. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying service connection for a lumbar spine disorder and depression is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 2. The criteria to reopen the claim of service connection for a lumbar spine disorder have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to reopen the claim of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for an effective date earlier than March 27, 2013 for the award of service connection for hypothyroidism have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.1, 3.155, 3.400 (2017); 38 C.F.R. § 3.157 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In February 2010, the RO denied service connection for a lumbar spine disorder because the evidence did not show a relationship between service, including in-service injuries, and the lumbar spine degenerative disc disease. The RO also denied service connection for depression because the evidence did not show a relationship between the psychiatric disorder and service or the service-connected Hodgkin’s disease. The Veteran did not file a notice of disagreement within one year. The Veteran has argued that his claims should not be considered a petition to reopen because his former attorney did not file a notice of disagreement with the February 2010 rating decision despite reportedly being instructed to do so by the Veteran. In support of his claim, he submitted a fax cover sheet dated October 28, 2010 that indicates it was sent to his former attorney regarding the “VA denial letter.” The cover sheet and accompanying document do not demonstrate intent to file a disagreement with the denial, and the remaining documents are dated November 2011, more than one year after the February 2010 decision, beyond when a timely notice of disagreement should have been received. Regardless, if his appointed representative failed to file a notice of disagreement, while that is unfortunate, the fact remains it was not done. During the one-year time period the attorney did ask for a copy of his claims file, but did not express any indication of an intent to appeal the decision. A copy of the file was provided to her in December 2010, so she had notice of the date of the February 2010 rating decision and knowledge of the time remaining to appeal the decision, yet she did not do so. Furthermore, the record does not demonstrate, and the Veteran does not contend, that he ever filed a notice of disagreement for the February 2010 denial of service connection for depression. Equitable tolling is not applicable where the veteran never filed a notice of disagreement. See McPhail v. Nicholson, 19 Vet. App. 30, 34, (2005) (“Equitable tolling of a time period is generally available to perform an action within that period only if the action had actually been performed.”); Weems v. Shinseki, 2014 U.S. App. Vet. Claims LEXIS 570, *7 (“Although this Court has not yet determined whether equitable tolling applies to the one-year period within which a veteran is entitled to file an NOD as to a rating decision, equitable tolling is not applicable, where, as here, the veteran never filed an NOD.”). Furthermore, the Veteran’s incarceration in late 2011 and subsequent findings of not guilty by reason of insanity all occurred after the one-year appeal period expired, so those events/findings cannot be used to justify any failure on his part to appeal the decision. Accordingly, the Board finds that equitable tolling is not applicable. The Veteran also did not submit new and material evidence within one year of the February 2010 rating decision. The RO did receive notification in that one-year period that the Veteran had been hospitalized at a VA medical facility. Therefore, VA was in actual and constructive possession of VA treatment records. See e.g., Turner v. Shulkin, 29 Vet. App. 207 (2018) (VA treatment records generated within the one-year appeal period following a rating decision may satisfy the requirements of 38 C.F.R. § 3.156(b) when VA adjudicators at VBA have knowledge of the existence of those VA treatment records within the one-year appeal period). When evaluating the finality of a rating decision, 38 C.F.R. § 3.156(b) requires VA to evaluate records and submissions received during the relevant appeal period, and determine whether they contain new and material evidence relevant to a pending claim. Here, those records generated within that one-year time period were not new and material. They showed continued treatment for a back condition and a psychiatric disorder – diagnoses already established at the time of the 2010 denial. These additional records in no way suggested that either condition was related to the Veteran’s service or a service-connected disability; therefore, they were not material. In summary, as the Veteran did not file a notice of disagreement or submit new and material evidence within one year, the February 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Accordingly, the Board will proceed with the claims as a petition to reopen. 1. The petition to reopen the claim of service connection for a lumbar spine disorder is denied. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1100, 20.1103, 20.1104. If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. See Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. See id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See id. 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). For the reasons given above, the February 2010 rating decision is final. At that time, the evidence included the Veteran’s statements, supporting buddy statements, service treatment records, VA medical records from 1993 to 2010, private treatment records, and an August 2008 examination. The Veteran filed a petition to reopen his claim in March 2013. Since then, new Social Security Administration (SSA), private, and VA medical records have been associated with the claims file. While these records are “new,” they are not “material” because they do not address an unestablished fact necessary to substantiate the claim. Specifically, the new medical records do not suggest that the Veteran’s degenerative disc disease is related to service. Additionally, while the Veteran contends his lumbar spine disorder is related to injuries in service, and new medical records note such contentions, these statements are not new because they were considered as evidence for the original claim. As new and material evidence has not been received since the final February 2010 rating decision, the Veteran’s petition to reopen the claim of service connection for a lumbar spine disorder is denied. In September 2016, the Veteran requested that “ALL ongoing claims are residuals and should be considered with the effects over time resulting from a relation to radiation treatments [for the service-connected Hodgkin’s disease] and service connected ratings.” To the extent the Veteran seeks service connection for his lumbar spine disorder secondary to his service-connected Hodgkin’s disease, he must submit new and material evidence that supports the new theory of causation. See Boggs v. Peake, 520 F.3d 1330 (Fed. Circ. 2008); see also Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (multiple theories of entitlement for the same disability constitute the same claim). The Veteran has not submitted any evidence that supports his new theory and there is no evidence in the file that suggests such a relationship is possible. Accordingly, the petition to reopen remains denied. 2. The petition to reopen the claim of service connection for an acquired psychiatric disorder is denied. For the reasons given above, the February 2010 rating decision is final. At that time, the evidence included the Veteran’s statements, supporting buddy statements, service treatment records, VA medical records from 1993 to 2010, and private treatment records that included a diagnosis of bipolar disorder, depressed type. In March 2013, the Veteran filed a claim for service connection for bipolar disorder secondary to the service-connected Hodgkin’s disease. Even though the Veteran filed for service connection for two different psychiatric disorders, the Board finds that the current claim encompasses the previous claim and is considered a petition to reopen the claim of service connection for an acquired psychiatric disorder. In determining whether new and material evidence is required, “the focus of the Board’s analysis must be on whether the evidence presented truly amounts to a new claim ‘based upon distinctly diagnosed diseases or injuries’ or whether it is evidence tending to substantiate an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (citing Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008)). Here, the Veteran’s current claim is clearly based upon the same set of facts as the previously denied claim, i.e. depressive symptoms and suicidal ideation reportedly related to his service-connected Hodgkin’s disease and residuals. Moreover, his bipolar disorder was contemplated in the previous denial. Accordingly, the current claim is properly characterized as a petition to reopen the claim of service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Since the Veteran filed his petition to reopen, new SSA, private, and VA medical records and a VA mental disorders examination have been associated with the claims file. While these records are “new,” they are not “material” because they do not address an unestablished fact necessary to substantiate the claim, i.e., the new records do not suggest that the Veteran has a psychiatric disorder that is related to service or his service-connected Hodgkin’s disease. Instead, the evidence shows that he has consistently related his mental health to chronic back pain and related medication, including as documented in an August 2008 VA medical record and the June 2012 Oklahoma Forensic Center psychiatric evaluation. As new and material evidence has not been received since the final February 2010 rating decision, the Veteran’s petition to reopen the claim of service connection for an acquired psychiatric disorder is denied. 3. Entitlement to an effective date earlier than March 27, 2013 for the grant of service connection for hypothyroidism is denied. The Veteran contends that he is entitled to an effective date earlier than March 27, 2013 for the award of service connection for hypothyroidism. The Board finds, however, that March 27, 2013 is the earliest possible effective date available. For direct service connection claims, the effective date is the day following separation from active service or date entitlement arose if claim is received within one year after separation from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments apply to claims filed on or after March 24, 2015. Here, the claim was received in March 2013, and thus, the former regulations apply, as provided below. The Veteran filed his claim for service connection for hypothyroidism on March 27, 2013, more than 20 years after separation from service; thus, to be entitled to an earlier effective date, the Veteran must have communicated a belief in entitlement to benefits prior to March 27, 2013. After review of the claims file, however, the Board finds that no such communication was received. VA medical records show that the Veteran was diagnosed with hypothyroidism in 2000 and an October 2000 medical record noted that it was “likely secondary to” radiation treatment for his Hodgkin’s disease. Under the former regulations, VA medical records are not accepted as informal claims where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006); Brannon v. West, 12 Vet. App. 32, 25 (1998) (“The mere presence of the medical evidence does not establish an intent on the part of the [appellant] to seek secondary service connection for the psychiatric condition . . . . While the Board must interpret the appellant’s submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant.”). Even medical records containing some documentation or discussion of entitlement to benefits have been held not to constitute an informal claim. See King v. Shinseki, 23 Vet. App. 464, 469 (2010) (holding that VA treatment records noting that a veteran "is trying" or "wanted to file" a service connection claim were not sufficient to constitute an informal claim under section 3.155), aff'd 430 Fed. Appx. 890 (unpublished) (Fed. Cir. July 21, 2011). In this case, the VA outpatient records that pre-date the 2013 claim cannot constitute a claim under 38 C.F.R. § 3.157(b)(1). The provisions of § 3.157(b)(1) expressly "apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission." Thus, while the Veteran’s earlier medical records documented a diagnosis of hypothyroidism that was related to his service-connected Hodgkin’s disease, he did not communicate an intent to file for benefits until March 27, 2013, the date his claim was received. Per 38 C.F.R. § 3.400(b), this is the earliest possible effective available. The Board also considered the Veteran’s argument that he is entitled to an earlier effective date because he instructed his former attorney to file a claim when he instructed her to file a notice of disagreement with the February 2010 rating decision, which she failed to do. In support of his argument, he provided handwritten notes related to his case which show his Hodgkin’s disease, thyroid and depression disorders on the same page dated April 20, 2012. However, these notes were received by VA in July 2015. While it is unfortunate that his prior attorney did not file a claim for him, that does not change the result here. As above, the Veteran essentially seeks equitable tolling of the effective dates requirements. Equitable tolling has been held to be inapplicable, however, to issues involving effective dates under 38 U.S.C. § 5110. See Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (holding that equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110, as that section addresses the question of when benefits begin to accrue, not whether a veteran is entitled to benefits at all). This is a case where the law is dispositive; the Board is bound by the law and is without authority to grant an appeal on an equitable basis. Given the foregoing, the Veteran’s claim for an earlier effective date for the award of service connection for hypothyroidism must be denied. REASONS FOR REMAND 1. Service connection for a left shoulder disorder is remanded. The Veteran’s service treatment records show that he presented with left shoulder dislocation, decreased range of motion, and pain after falling on his shoulder in September 1988. He was diagnosed with a third-degree acromioclavicular (AC) joint separation but no fracture. Subsequent records show continued complaints of left shoulder pain in October 1988, March 1989, July 1989, and October 1989. He underwent shoulder x-rays in March 1989, which revealed left AC joint separation with slight hypertrophic degenerative changes of the distal left clavicle. In July 1989, he landed on his left shoulder and sustained a left AC sprain. Post-service medical records show that he complained of left shoulder pain in April 2004, at which time he was diagnosed with left shoulder degenerative joint disease. Considering the extensive injuries to the left shoulder in service and post-service arthritis diagnosis, the Board finds that a remand is necessary for a VA examination and medical opinion.   2. Service connection for a left ear disorder is remanded. The Veteran seeks service connection for a left ear disorder, manifested by chronic bleeding and basal cell carcinoma, secondary to the radiation he underwent for his service-connected Hodgkin’s disease. He was afforded a VA examination in June 2014 and the examiner concluded that the ear disorder was less likely than not related to service. The examiner stated, however, that he was unable to determine whether radiation therapy had any influence on his basal cell carcinoma because he did not know the fields of the radiation used in his treatment. The Veteran’s service treatment records, however, contain the details of his radiation therapy, including treatment locations, field sizes, and dosages. This summary was not included in the examiner’s list of medical records considered; thus, the Board finds that a remand is necessary for an addendum medical opinion that is not speculative and relies on all available evidence. 3. Service connection for radiculopathy/peripheral neuropathy of the bilateral lower extremities is remanded. The Veteran contends that the radiation therapy he underwent in service caused nerve damage in his bilateral lower extremities. The radiation therapy, in part, targeted the para-aortic lymph nodes, located in front of the lumbar vertebrae, and a May 2009 medical record shows diagnoses of left S1 radiculopathy and peripheral neuropathy involving the bilateral peroneal, right tibial, and bilateral sural sensory nerves after EMG/NCV testing. The Veteran was afforded a VA peripheral nerves examination in June 2014, and the examiner concluded there was no peripheral neuropathy diagnosis, despite the Veteran’s medical records, and concluded that any neuropathy was unrelated to the service-connected Hodgkin’s disease because it had not recurred since service. Due to the medical records showing current diagnoses of bilateral peripheral neuropathy and left-sided radiculopathy, and the in-service radiation treatment, the Board finds that a remand is necessary to obtain an adequate medical opinion that addresses these facts.   4. Entitlement to an initial rating higher than 60 percent for the service-connected hypothyroidism is remanded. The Veteran timely disagreed with the 60 percent rating assigned for the service-connected hypothyroidism in the July 2014 rating decision. The 2016 statement of the case did address this issue. It was not listed as a separate issue, but the question of entitlement to a higher rating was addressed within the section on the earlier effective date claim. See 2016 Statement of the Case at page 28. Therefore, the issue has been properly appealed. However, it has been over four years since the last examination, and that report was somewhat inconsistent in that it listed various symptoms in the history section yet found no such symptoms within the evaluation section of the report. Therefore, another examination is needed. The matters are REMANDED for the following action: 1. Ask the Veteran to complete release forms for any medical provider who has treated him for his hypothyroidism, ear, left shoulder, and/or radiculopathy/neuropathy since 2013. 2. Schedule the Veteran for an examination to determine the nature and etiology of his left shoulder disorder. After examination and review of the claims file, the examiner should respond to the following: Is it at least as likely as not that the Veteran’s left shoulder disorder is related to service? The examiner should consider the service treatment records documenting multiple reports of treatment for left shoulder pain and third-degree AC separation.   3. Forward the Veteran’s claims file to an examiner for a medical opinion on the left ear/basal cell carcinoma claim. After review of the claims file and this remand, the examiner should respond to the following: Is it at least as likely as not that the Veteran’s left ear chronic bleeding and basal cell carcinoma are related to in-service radiation therapy for Hodgkin’s disease? The examiner should consider the radiation therapy notes which document the locations, field sizes, and dosages for the treatment. 4. Forward the Veteran’s claims file to an examiner for a medical opinion on the neurological claim. After review of the claims file and this remand, the examiner should respond to the following: Is it at least as likely as not that the Veteran’s May 2009 diagnoses of left S1 radiculopathy and peripheral neuropathy involving the bilateral peroneal, right tibial, and bilateral sural sensory nerves are related to in-service radiation therapy for Hodgkin’s disease? The examiner should consider the radiation therapy notes which indicate treatment that targeted the para-aortic lymph nodes and discuss, if appropriate, any role his lumbar spine condition has with respect to the neurological findings.   5. Schedule the Veteran for an examination to determine the current severity of his hypothyroidism. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel