Citation Nr: 18158849 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-50 546 DATE: December 18, 2018 ORDER 1. The petition to reopen the claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain (previously claimed as a back condition), is denied. 2. Entitlement to service connection for depressive disorder is denied. REMANDED 3. Entitlement to service connection for left knee degenerative joint disease is remanded. 4. Entitlement to service connection for right knee degenerative joint disease is remanded. FINDINGS OF FACT 1. A March 2012 rating decision denied the Veteran’s claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain. The Veteran was subsequently notified of this determination within a March 2012 notification letter, which included his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the March 2012 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain, and does not raise a reasonable possibility of substantiating the claim. 3. Depressive disorder did not have its onset during active service and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The March 2012 rating decision that denied the Veteran’s claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain, has not been added to the record. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for depressive disorder have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1984 to April 1990, with subsequent Reserves service. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim on there is a final decision may be reopened if new and material evidence is submitted. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. A March 2010 rating decision denied service connection for residuals of spinal surgery. The Veteran was notified of the decision. The following month, he wrote he had spinal surgery in 1996 or 1998 and had right-side tingling and numbness in his right arm and right leg. After providing the Veteran with an examination in June 2010, wherein the examiner diagnosed cervicolumbar disorder with right-sided radiculopathy and concluded that it was not related to service, the RO issued a new decision in November 2010, wherein it continued the denial of service connection for residuals of spinal surgery. A March 2012 rating decision denied reopening the Veteran’s claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain. The Veteran was subsequently notified of this determination within a March 2012 notification letter, which included his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. As such, the March 2012 rating decision is final. Since the prior final March 2012 rating decision, relevant evidence added to the record includes VA treatment records and lay statements from the Veteran. VA treatment records document the Veteran’s ongoing complaints of back pain, and a March 2013 treatment record notes spinal degenerative joint disease; however, there is no indication that a chronic back condition, or other residuals of spinal surgery, are related to the Veteran’s active service. An April 2014 lay statement from the Veteran reported an in-service injury to his back as a result of parachute jumps. While the evidence added to the record since the prior final March 2012 rating decision is new, in that it was not of record at the time of the prior final rating decision, it is not material evidence because it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain. The Veteran’s April 2014 lay statement regarding an in-service back injury as a result of parachute jumps is cumulative of his previous contentions at the time of the March 2012 final denial of the claim; therefore, such statements are not new and material evidence. Similarly, to the extent that VA treatment records which document degenerative joint disease of the spine are new evidence, they do not identify a nexus between such conditions and the Veteran’s active service or a service-connected disability. In other words, the evidence of record still lacks competent evidence of a nexus between a current back disability, including residuals of spinal surgery and right sided numbness and pain, and active service, or a service-connected disability. Finally, the Board is mindful that the Veteran failed to report for a VA back examination in August 2013. Although the Board herein remands the Veteran’s claims of entitlement to service connection for bilateral knee disabilities in order to afford him an additional opportunity to appear at scheduled examinations, such development is not warranted regarding the Veteran’s application to reopen the claim for service connection for residuals of spinal surgery. Significantly, VA’s duty to assist in providing a medical examination or opinion does not attach until new and material evidence sufficient to reopen a previously denied claim has been submitted. Accordingly, as the evidence submitted is not both new and material, reopening of the Veteran’s claim of entitlement to service connection for residuals of spinal surgery, to include right sided numbness and pain, is not warranted, and the application to reopen the claim is denied. Service Connection 2. Entitlement to service connection for depressive disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The Veteran claims entitlement to service connection for depressive disorder. As to the first element of a service connection claim, a current disability, the Board finds that post-service private treatment records document an assessment of severe obstructive sleep apnea following a May 2013 private sleep study. Regarding the in-service element of a service connection claim, the Board finds that service treatment records do not document complaints, treatment, or diagnosis of depressive disorder. A July 1989 physical examination documents a normal psychiatric evaluation, with no depressive disorder noted under defects/diagnoses; and while the Veteran reported depression or excessive worry within a concurrent report of medical history, a physician’s note referred to the condition as “excessive worry” and further noted that the condition did not require medication. Following his discharge from active service, the Veteran had additional Reserves service. Within February 1995 and January 1996 reports of medical history, the Veteran again reported depression or excessive worry; however, concurrent psychiatric clinical evaluations were normal, with no depressive disorder noted under defects/diagnoses. Thus, while the Veteran complained of depression or excessive worry during active service, the Board finds that the evidence does not support that such was related to depressive disorder or another psychiatric disability. Regarding the third element of a service connection claim, the Board finds that the preponderance of the evidence is against evidence of a nexus between the Veteran’s current depressive disorder and his active service. Upon VA mental disorders examination in August 2013, the VA examiner opined that the Veteran’s currently diagnosed depressive disorder, not otherwise specified, was less likely than not related to active service or a service-connected disability. The examiner noted that the Veteran spent most of the examination ranting about his commanding officer. The examiner noted that service treatment records documented the Veteran’s lay reports of depression, with concurrent negative psychiatric evaluations. Finally, the examiner concluded that the Veteran’s current depression seemed related to his family problems and financial hardship, rather than his active service or a service-connected disability. As such, the Board finds that the August 2013 negative nexus opinion is probative evidence which weighs against the Veteran’s claim. Moreover, there are no positive nexus opinions of record to weigh against the August 2013 negative nexus opinion. To the extent that the Veteran asserts that his current depression is related to active service or a service-connected disability, such statements are of little probative value given the Veteran’s lack of psychiatric or medical expertise. Moreover, to the extent that the Veteran asserts that his depressive disorder first had its onset during active service and has continued since that time, such statements are inconsistent with the additional evidence of record, including service treatment records and post-service VA treatment records, which fail to document a diagnosis of depressive disorder or another psychiatric disability during active service or soon after service discharge. In fact, the Board finds no objective evidence of post-service psychiatric treatment for reported depression until December 2009, when the Veteran reported a history of depression and prior alcohol abuse, for which he had sought rehabilitation at a VA facility in 1995. Such evidence weighs against the Veteran’s claim that his depressive disorder had onset during active service or is otherwise related to active service. In sum, the preponderance of the evidence of record weighs against the Veteran’s claim of entitlement to service connection for depressive disorder. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim is denied. REASONS FOR REMAND 3. Entitlement to service connection for left knee degenerative joint disease is remanded. 4. Entitlement to service connection for right knee degenerative joint disease is remanded. The Board finds that remand is required in this case to afford the Veteran VA examinations regarding his bilateral knee claims, as the record suggests that the Veteran may not have received notice of previously scheduled examinations in August 2013. An August 2013 VA treatment record documents that the Veteran failed to report for a scheduled VA bilateral knee examination. In October 2013, the Veteran’s attorney reported that the Veteran had not received notice of the VA knee examination, and requested that the examination be rescheduled. Similar requests were received in November 2013, December 2013, April 2014, June 2014, December 2014, February 2015, June 2015, October 2015. A July 2016 VA Form 21-5107a, Request for Physical Examination, documents that VA requested a knee and lower leg examination to be scheduled. The Veteran’s current address was also listed on the form, and a notice letter was sent to the Veteran’s address of record that same month informing him that an examination would be scheduled, although the Board is unable to find within the record a copy of the specific notice letter from the VAMC to the Veteran informing him of the specific date and time of the scheduled VA examination. Thereafter, an August 2016 VA treatment record indicates that the Veteran failed to appear for scheduled examinations. In January 2017, following his submission of a VA Form 9 substantive appeal, the Veteran submitted a statement which reported that he had no knowledge of the previously scheduled examinations through telephone call or written information, and requested that the examination be rescheduled. Finally, within a March 2018 brief, the Veteran’s attorney asserted that although the record contains information regarding the scheduling of prior examinations, there is very little evidence of actual notice letters to the Veteran, with corresponding notations regarding the mailing and receipt or non-receipt of such, which is particularly important when evaluating whether good cause exists for failure to report for scheduled examinations. As such, the attorney again requested remand of the matters in order to schedule the Veteran for the VA knee examination. Typically, in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process; however, in this instance, though the Board is mindful of the Veteran’s apparent repeated failure to appear at VA examinations in conjunction with his bilateral knee claims, the Board finds that in order to fully regard the Veteran’s due process rights, and without a reason to question the credibility of the Veteran and his representative regarding the assertion that he failed to receive proper notice, he will be given one more opportunity to appear at a scheduled VA knee examination. Therefore, upon remand, the AOJ must schedule the Veteran for the previously requested medical examinations, provide him and his attorney with adequate prior notice of the examination date and location (to be sent to his current mailing address of record), and allow him this one additional opportunity to appear for an examination in connection with his bilateral knee claims. The Veteran is hereby advised, however, that he is legally obligated to report for such medical examination; moreover, the consequences of his failure, without good cause, to appear for an examination ordered in conjunction with his original compensation claim is that his claim shall be rated on the evidence of record. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination regarding his claims of entitlement to service connection for bilateral knee degenerative joint disease. The claims file must be made available to the examiner for review, and the examination report should reflect that such review was accomplished. A full and detailed rationale for all opinions, with citation to relevant medical findings or medical authority, must be provided. Specifically, the examiner is asked to provide the following opinion: Whether it is at least at likely as not (a 50 percent probability or greater) that the Veteran’s bilateral knee degenerative joint disease is related to active service. In providing the requested opinion, the examiner must specifically consider and discuss all relevant lay and medical evidence of record, with supporting references to the record as necessary. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel