Citation Nr: 18158588 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-40 697A DATE: December 17, 2018 ORDER New and material evidence having not been received; the claim of entitlement to service connection for thoracic scoliosis is denied. New and material evidence having not been received; the claim of entitlement to service connection for a low back disability is denied. New and material evidence having been received; the claim of entitlement to service connection for a heart disability is reopened. The appeal is granted to that extent only. New and material evidence having been received; the claim of entitlement to service connection for hypertension (claimed as high blood pressure) is reopened. The appeal is granted to that extent only. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for right elbow arthritis is remanded. Entitlement to service connection for left elbow arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a November 2012 rating decision, service connection for thoracic scoliosis was denied. The Veteran did not file a substantive appeal. As such, the November 2012 rating decision denying service connection for thoracic scoliosis became final. 2. The additional evidence since submitted or otherwise obtained is either cumulative or redundant of evidence already of record and previously considered or does not relate to an unestablished fact necessary to substantiate the claim of service connection for thoracic scoliosis. 3. In a November 2012 rating decision, service connection for a low back disability was denied. The Veteran did not file a substantive appeal. As such, the November 2012 rating decision denying service connection for a low back disability became final. 4. The additional evidence since submitted or otherwise obtained is either cumulative or redundant of evidence already of record and previously considered or does not relate to an unestablished fact necessary to substantiate the claim of service connection for a low back disability. 5. In a November 2012 rating decision, service connection for a heart disability was denied. The Veteran did not file a substantive appeal. As such, the November 2012 rating decision denying service connection for a heart disability became final. 6. The evidence received since the November 2012 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a heart disability. 7. In a November 2012 rating decision, service connection for hypertension (claimed as high blood pressure) was denied. The Veteran did not file a substantive appeal. As such, the November 2012 rating decision denying service connection for hypertension (claimed as high blood pressure) became final. 8. The evidence received since the November 2012 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The November 2012 rating decision, which denied service connection for thoracic scoliosis and a low back disability became final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence not having been received, service connection for thoracic scoliosis and a low back disability are not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The November 2012 rating decision, which denied service connection for a heart disability and hypertension (claimed as high blood pressure) became final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence having been received, service connection for a heart disability and hypertension (claimed as high blood pressure) are reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to July 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April and October 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). At the outset, the Board notes the Veteran filed a timely appeal for the denial of service connection for a mental condition (claimed as anxiety, depression, nervousness, weight gain, and posttraumatic stress disorder) and memory loss. Prior to the claims being certified to the Board, the RO granted service connection for posttraumatic stress disorder with depressive symptoms (claimed as a mental condition, to include anxiety, depression, nervousness, weight gain, and memory loss). Thus, the Board finds these claims are no longer before the Board. VA’s Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA’s duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO sent the Veteran a letter in September 2011 that complies with statutory notice requirements. Therein, the RO notified the Veteran of the evidence VA was responsible for obtaining and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, the RO notified the Veteran of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why his claims were previously denied. Thus, VA has satisfied the notification and duty-to-assist provisions of the law, and no further action pursuant to the VCAA need be undertaken on the Veteran’s behalf. The Veteran has not identified any other pertinent evidence that remains outstanding. Whether new and material evidence had been submitted to reopen previously denied claims. Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is described under 38 U.S.C. § 5108, which provides that “if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing 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 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. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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 (2010). In regard to the Veteran’s claims of service connection for thoracic scoliosis and a low back disability, the November 2012 rating decision denied service connection for these claims, the pertinent evidence of record consisted of the Veteran’s claim for benefit, and available medical treatment records. The RO determined that there was no evidence of current chronic thoracic scoliosis or low back disability. The Veteran was properly notified of the November 2012 rating decision; and the Veteran failed to appeal the claims and the November 2012 rating decision became final based on the evidence of record at that time. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The Veteran has not presented evidence since the November 2012 rating decision that relates to an unestablished fact necessary to substantiate the claims of service connection for thoracic scoliosis or a low back disability. Since the October 2012 rating decision, the evidence received into the record includes service treatment records, updated medical treatment records, and lay statements from the Veteran and his family members. The Veteran has asserted that he has thoracic scoliosis and a low back disability. However, medical treatment records reveal the Veteran has not been diagnosed with current thoracic scoliosis or a low back disability. The Board notes the Veteran was diagnosed with thoracic scoliosis during service in November 1992 however, update medical treatment records do not reveal the Veteran has a current diagnosis of thoracic scoliosis. Updated medical treatment records also reflect the Veteran has not been diagnosed with a current low back disability. Thus, the Board finds the additional evidence submitted in connection with these claims, albeit new as it was not previously of record and therefore not considered, is not material since it does not tend to show the Veteran has current chronic thoracic scoliosis or a low back disability. The Board acknowledges the Veteran’s statements that he has current thoracic scoliosis and a current low back disability. However, despite the “low threshold” announced in Shade, the Board must still consider whether this evidence could reasonably substantiate the claim, if the claim was reopened, including by triggering VA’s duty to obtain a VA examination. The evidence of record is silent as to any diagnosis of current chronic thoracic scoliosis or a low back disability. The lay assertions of record, alone, are insufficient to support reopening of his previously denied claims of service connection for thoracic scoliosis and a low back disability because this evidence is not competent to provide evidence of a current diagnosis. In sum, the evidence received since the November 2012 rating decision does not constitute competent evidence tending to show that the Veteran has current chronic thoracic scoliosis or a current low back disability. Accordingly, the evidence received since the most recent final denial of the claim is not new and material, and reopening of the claim for service connection for these claims are not warranted. Until the evidence meets the threshold burden of being new and material to reopen the claims, reopening of the claims must be denied, and the merits-based standard of benefit of the doubt does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In regard to the Veteran’s claims of service connection for a heart disability and hypertension (claimed as high blood pressure), the Board finds that new and material evidence has been received to reopen the previously denied claims. The claims were originally denied in a November 2012 rating decision. The RO denied the Veteran’s claims because the evidence submitted failed to show a current diagnosis of a heart disability or hypertension. The Veteran was provided with notification of the November 2012 rating decision and of his procedural and appellate rights. The Veteran did not perfect an appeal and the November 2012 rating decision which denied service connection for these disabilities became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Subsequent to the November 2012 rating decision, the Veteran has submitted additional evidence and arguments that if presumed credible for purposes of reopening, show that he has a current diagnosis of coronary artery disease (CAD) and hypertension. Accordingly, this evidence is sufficient to reopen the previously-denied claims of entitlement to service connection for CAD and hypertension. See 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for a heart disability, hypertension, and sleep apnea is remanded. Here, the Veteran was not afforded a VA examination with respect to these claims. In regard to the Veteran’s hypertension claim, service treatment records reflect the Veteran’s complaints of high blood pressure and that he was evaluated for high blood pressure during service. Additionally, post service medical treatment records note the Veteran’s continued treatment for hypertension. Therefore, the Board finds an opinion is required to determine whether the Veteran’s current diagnosis of hypertension is related to his complaints of high blood pressure during service. With respect to his sleep apnea claim, the Veteran has asserted that his sleep problems are due to his medical problems to include his PTSD. Additionally, the Board finds an opinion is needed to determine whether the Veteran’s CAD is related to the Veteran’s hypertension. Based on the foregoing, the Board finds additional examinations are required to determine the nature an etiology of these disabilities. VA must afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Specifically, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability, (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 Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Here, the Veteran was afforded a VA examination for his TBI claim in September 2015. The examiner opined that the Veteran appeared to have residuals of TBI but that it was not possible to separate out the residuals from prior TBI before service and the 2 incidents recorded during service. The Board finds this opinion is inadequate for adjudication purposes as the examiner acknowledged the Veteran does have residuals of a TBI but did not provide adequate rationale as to why it was not possible to provide a baseline of aggravation and to determine whether the head injuries sustained during service aggravated his preexisting TBI. Thus, the Board finds an additional opinion is needed to determine the etiology of the Veteran’s TBI which was not noted on entrance examination. 3. Entitlement to service connection for right and left elbow arthritis, right and left knee arthritis is remanded. Here, the Veteran underwent a Gulf War general medical examination in October 2015. The examiner opined that musculoskeletal disabilities are concrete physical diseases caused by direct mechanical forces at work on the joints, and are less likely to be due to an environmental toxic exposure in southwest Asia. The Board finds an additional opinion is needed to determine whether these disabilities are directly related to the Veteran’s service as the examiner failed to provide an opinion on a direct basis. Service treatment records reflects the Veteran’s complaints and treatment for elbow and knee pain and injuries to each. The Veteran has reported that he has suffered from pain in his elbows and knees during and since service. Based on the foregoing, the Board finds an additional opinion is needed to determine the nature and etiology of these disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding medical treatment records. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disability, to include CAD, hypertension and sleep apnea. In regard to hypertension, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease during service. If the examiner finds the Veteran’s hypertension is related to service then the examiner should opine whether the Veteran’s CAD is at least as likely as not (1) proximately due to his hypertension or (2) aggravated beyond its natural progression by hypertension. In regard to sleep apnea, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease during service or (1) proximately due to any service-connected disability or (2) aggravated beyond its natural progression by any service-connected disability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residual of TBI. The examiner must opine whether it clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral elbow and knee arthritis are at least as likely as not related to an in-service injury, event, or disease during service to include injuries sustained to both elbows and knees during service. A discussion of the underlying reasons for all opinions expressed must be included in the examiner’s report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide an explanation for the basis of that determination. The examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be considered, along with the other evidence of record in formulating the requested medical opinion. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel