Citation Nr: 18159214 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-63 688 DATE: December 19, 2018 ORDER New and material having been received, the claim of service connection for Tourette syndrome is reopened, and to that extent the appeal is granted. New and material having not been received, the application to reopen the claim of service connection for a lumbar spine disorder is denied, and the claim is not reopened. REMANDED Entitlement to service connection for Tourette syndrome is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. In November 2010, service connection for Tourette syndrome was denied by the Board; that decision was unappealed and became final. 2. The evidence received since the last final denial relates to an unestablished fact necessary to substantiate the claim of service connection for Tourette syndrome. 3. In April 2006, service connection for a back disorder was denied; a notice of disagreement was submitted, but the Veteran did not submit a substantive appeal, VA Form 9, for the issue after receiving the statement of the case. 4. The evidence added to the record since the April 2006 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for a back disorder. CONCLUSIONS OF LAW 1. The November 2010 Board decision that denied the claim of entitlement to service connection for Tourette syndrome is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100, 20.1105. 2. As the evidence received subsequent to the November 2010 Board decision is new and material, the requirements to reopen the claim of entitlement to service connection for Tourette syndrome have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 3. The April 2006 rating decision that denied the Veteran’s claim of service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. As the evidence received subsequent to the April 2006 rating decision is not new and material, the requirements to reopen the claim of service connection for a back disorder have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1985 to November 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA). The Board observes that in a May 2015 rating decision, VA stated that the Veteran’s claim for a cervical spine disorder had been previously denied service connection in May 2004. However, the Veteran’s May 2003 claim only requested service connection for a back injury and arthritis in the back. Additionally, the May 2004 rating decision itself only adjudicated service connection for a back disorder. As the Veteran’s cervical spine disorder is separate and distinct from his previous back disorder claim, new and material evidence is unnecessary. With regards to the Veteran’s lumbar spine disorder, VA determined that the Veteran had presented new and material evidence with respect to the claim in October 2016. It subsequently reopened the claim and denied it on the merits. However, the issue of whether new and material evidence has been received is a threshold question in any case involving a previously denied claim, which must be determined by the Board upon de novo review. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). Therefore, the issue has been captioned as seen above. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Tourette Syndrome The Veteran is seeking to reopen the previously-denied claim of service connection for Tourette syndrome. Based on the additional evidence added submitted by the Veteran since the last final denial of the claim, the Board finds that new and material evidence has been added to the record. The Veteran’s claim for service connection for Tourette syndrome was previously before the Board in November 2010, at which time the Board denied that claim because the evidence of record did not demonstrate that the Veteran’s Tourette syndrome, which was determined to have pre-existed service, was aggravated beyond its natural course by service. The Board decision was not appealed to the United States Court of Appeals for Veterans Claims, nor was there a timely Motion for Reconsideration received. As a result, a final decision was promulgated by the Board in November 2010 with respect to the Veteran’s claim involved in the appeal. 38 C.F.R. § 20.1100(b). Since the November 2010 Board decision, the Veteran has submitted a medical opinion by his neurologist. In the opinion, the neurologist stated that the Veteran’s Tourette syndrome started in his teenage years and has become significantly worse with stress. The neurologist cited the stress of serving in the U.S. Navy and specifically seeing the death of another veteran when he was sucked into a propeller. Based on the neurologist’s experience, they stated that there is a reasonable degree of medical certainty that it is more likely than not that his symptoms of Tourette syndrome were aggravated by his service-connected duties. The Board finds that evidence is new as it was not previously included in the claims file. Additionally, as the opinion directly addresses the possibility of aggravation of the Veteran’s disorder during service, the Board finds that the opinion is material. Consequently, the Board finds that new and material evidence raises a reasonably possibility of substantiating the Veteran’s claim, and therefore the claim is reopened at this time. See 38 C.F.R. § 3.156. Lumbar Spine Disorder The Veteran is seeking service connection for the previously-denied claim of a back disorder. Based on the additional evidence added to the record since the previous final denial of the Veteran’s claim, the Board finds that new and material evidence has not been added to the record. The Veteran’s service connection claim for a back disorder was initially denied in a May 2004 rating decision. A review of that rating decision reveals that at the time, VA declined to grant service connection because there was insufficient evidence to demonstrate that the Veteran’s current back condition was linked to his complaints of lower back pain and strain in service. He did not appeal that decision within one year, nor did he submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). The Veteran’s application to reopen the claim of service connection for a back disorder was denied in an April 2006 rating decision. A review of that rating decision reveals that at the time, VA declined to reopen the claim because the newly-added treatment records showed continued treatment for a back disorder, but did not relate the Veteran’s condition to service. A notice of disagreement was submitted, but the Veteran did not submit a substantive appeal, VA Form 9, for the issue after receiving the statement of the case. As a result, this rating decision represents the last final denial of the claim. See 38 C.F.R. § 20.1103. Since the April 2006 rating decision, the Veteran has submitted additional medical treatment records that document continued treatment of his lumbar spine disorder. Despite the demonstration of continued treatment for a lumbar spine condition, there are no medical records suggesting a nexus with military service. The Veteran also underwent a VA examination in April 2015. The examiner determined that the Veteran’s lumbar spine disorder was less likely as not related to military service. The examiner noted that the Veteran was only conservatively treated for a muscle strain of his back during service with no noted residuals. There were no indications on his separation examination of a lumbar spine disability and a muscle strain in service would not be anticipated to cause the early onset of degenerative disc disease or degenerative joint disease. As the VA examination and negative nexus opinion do not raise a reasonable possibility of substantiating a claim, the evidence is new, but not material. Neither the treatment records nor the VA examination indicate that his lumbar spine disorder first manifested during or is connected with military service. As the new evidence fails to show one of the missing necessary elements for service connection, the Board concludes that new and material evidence has not been added to the record and the claim is not reopened. See 38 C.F.R. § 3.156. REASONS FOR REMAND Respecting the Veteran’s claim for Tourette syndrome, he asserts that he had convulsive tics during military service which were determined to be nerves. However, upon his entrance into service, a physician noted a history of mild nervousness when under a lot of stress, which the physician deemed as normal. The Veteran has now alternately stated that his Tourette syndrome predated his service, but that symptoms first manifested during military service. The Board does not find that the notation of nerves upon entrance into service is indicative of Tourette syndrome. Therefore, as the Veteran may be entitled to the presumption of soundness, the Board finds it necessary to obtain a medical examination and opinion to determine whether the Veteran’s Tourette syndrome clearly and unmistakably pre-existed his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). If it clearly and unmistakably pre-dated service, and evidence of aggravation is presented, VA must then analyze whether it was clearly and unmistakably aggravated beyond its natural course during military service. However, if it did not pre-date military service or there was an absence of aggravation, VA must analyze whether his Tourette syndrome first manifested during service or is related to service. Respecting the cervical spine disorder, the Veteran asserts he injured his neck during service. The April 2015 examiner provided a negative nexus opinion, observing that the Veteran’s cervical muscle strain in service resolved with no residuals before discharge. However, in addition to the December 1992 muscle strain, the Veteran also was diagnosed in April 1989 with a cervical muscle spasm. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See 38 U.S.C. 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the medical opinion was based on an incomplete understanding of the Veteran’s neck injuries during service, the Board will remand the claim for an addendum medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his Tourette syndrome. The examiner must opine whether the Veteran’s Tourette syndrome clearly and unmistakably (undebatable) preexisted the Veteran’s service. (a.) If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. (b.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not 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. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cervical spine disorder is at least as likely as not related to service, to include his documented April 1989 cervical muscle spasm and December 1992 cervical muscle strain. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel