Citation Nr: 18160051 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 13-09 844 DATE: December 21, 2018 ORDER New and material evidence has not been received sufficient to reopen the previously denied claim of service connection for degenerative arthritis of the lumbar spine. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea is remanded. FINDINGS OF FACT 1. In a May 2009 rating decision, the RO denied entitlement to service connection for degenerative arthritis of the lumbar spine; the Veteran did not appeal this determination, and new and material evidence was not received within a year of its issuance. 2. Evidence received since the time of the final May 2009 rating decision is duplicative and cumulative of that of record at the time of the prior final denial and does not raise a reasonable possibility of substantiating the claim of service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied service connection for degenerative arthritis of the lumbar spine is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been submitted sufficient to reopen a claim of service connection for degenerative arthritis of the lumbar spine. 38 U.S.C. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.156, 3.159 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2016. A transcript of the hearing has been associated with the file. In a January 2017 decision the Board denied entitlement to service connection for bilateral hearing loss and sleep apnea and determined that the new and material evidence was not received to reopen the claim of service connection for degenerative arthritis of the lumbar spine. The Veteran appealed those determinations and in a May 2018 order, the Court of Appeals for Veterans Claims (Court) remanded the issues back to the Board so that more adequate reasons and bases could be articulated, encompassing the totality of information and contentions submitted by the Veteran. New and Material Evidence 1. Lumbar Spine In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 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, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, 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. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, 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.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service connection for a lumbar spine disability was originally denied by way of a May 2009 rating decision on the basis that there was no nexus between the Veteran's in-service injury and his current diagnosis of degenerative arthritis. The appellant did not file an appeal or submit new evidence within one year of the May 2009 decision. Thus, the May 2009 decision became final. The evidence of record at the time of the prior denial was service treatment records and a VA examination. The Veteran's service treatment records contain his February 1969 report of medical examination for separation. This examination indicates that the Veteran had back trouble one and a half years prior due to muscle spasm. This injury was treated with back support, pills, and heat. Upon examination the Veteran's spine was found to be normal. The Veteran's service treatment records also contain notes of back pain or injuries. In September 1966, the Veteran was seen for back pain that had three days earlier been treated as a stiff neck and shoulders. He was temporarily ordered to no heavy lifting. In November 1966, the Veteran was seen with continued vague stiff neck and back complaints. It was noted as worse with lifting and bending. No definite physical findings were present and the Veteran's work history was noted as involving significant lifting and carrying of heavy objects. A December 1966 note indicated that the Veteran still had back pain due to lifting, but he had full range of motion, and no tenderness. Imaging was negative and the Veteran was diagnosed with a muscle strain. A December 1966 surgical clinic note showed a normal examination of the lumbosacral spine. In March and April of 1967 the Veteran again had back issues following lifting a 95-pound jackhammer. Following an April 1967 referral, the Veteran was seen in the orthopedic clinic where his examination was negative except for a notation of instability. The April 2009 VA examiner reported that the Veteran claims to have ceased complaining about his back in the final years of service due to ineffective treatment. Additionally, the Veteran claims to have avoided mentioning any current back pain at his separation examination to speed up the process. There were no complaints of back pain in the Veteran's file from separation until his claim for service connection in 2009, a span of 40 years. The evidence submitted since the prior denial is the Veteran's statement that he had to change his MOS in order to get relief from his back pain and his military personnel records that verify a change in MOS. In a January 1968 personnel action request, the Veteran's MOS was changed from grounds maintenance man to maintenance and control specialist. Prior to that, the Veteran was a pavement specialist. While this evidence is new, as it was not of record at the time of the prior denial, it is not material. VA has already conceded that the Veteran had an in-service back injury. The Veteran's service treatment records document a long history of muscle strains and spasms due to lifting heavy objects. The element of service connection that has been absent from the Veteran's claim is a nexus between that injury and his current condition. The Veteran's new contention that his back injury forced an in-service MOS change does not provide the necessary link between such an injury and the Veteran's current degrative arthritis. The March 2009 examiner determined that the Veteran's current diagnosis of degenerative arthritis was due to aging, and was not a continuation of the Veteran's back pain noted in service, 40 years prior. The Veteran has made additional claims that his back pain has been a chronic condition since service. These are the same claims that he made to the March 2009 examiner. As such, they are not new, but merely duplicative of the evidence of record at the prior denial. The Veteran has supplied additional post service medical records, however none of the records contain a nexus opinion regarding the Veteran's back pain. In August 2012, the Veteran requested an opinion from Dr. RH, but no opinion was given. These additional post service medical records are not new, as they contain the same diagnoses and complaints as those already of record, nor are they material, as VA has already conceded that the Veteran has a current injury, degenerative arthritis. Furthermore, the evidence contained in the additional medical records indicates that the Veteran began experiencing back pain in or around 2005, 35 years after separation from service. While new, this evidence is not material as it contradicts the Veteran's claim of continuity of symptomatology. In summary, the new evidence submitted since the previous denials consists of a new theory on the in-service injury, a point VA has already conceded, and additional medical records describing the Veteran's current injuries, again a point VA has already conceded. As the Veteran has not provided a nexus opinion, the lone element of service connection yet to be established, the Board finds that new and material evidence has not been submitted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. While the VA examiner has opined that the Veteran's MOS of maintenance and control specialist did not expose the Veteran to hazardous noise, no examiner has taken into account the Veteran's exposure to aircraft engines, gunfire, and industrial maintenance equipment, such as jack hammers, pavers, and runway sweepers. As such, remand is warranted to obtain an addendum opinion. 2. Entitlement to a sleep disorder, to include sleep apnea is remanded. At his Board hearing, the Veteran’s attorney stated that his claim was for sleep disturbance rather than sleep apnea. A July 2013 note from Dr. LS states that the Veteran may suffer from a REM sleep disorder. However, this contention has never been developed. As such, remand is warranted to further develop the claim. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the bilateral hearing loss is at least as likely as not related to any noise the Veteran may have been exposed to during service, to include aircraft engines, gunfire, and industrial maintenance equipment like jack hammers, pavers, and runway sweepers. If it is necessary to examine the Veteran for purposes of this opinion, that should be arranged. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The examiner is asked to opine whether it is at least as likely as not related to an in-service injury or disease, to include whether it is at least as likely as not to have had its onset during service. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel