Citation Nr: 1807162 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-11 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder, and, if so whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disorder, and, if so whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left knee disorder, and, if so whether service connection is warranted. 4. Entitlement to service connection for a temporomandibular joint (TMJ) disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1991 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issues of entitlement to service connection for back, neck, left knee, and TMJ disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision dated in July 1995, the RO denied the Veteran's claim of entitlement to service connection for a back condition. 2. Evidence added to the record since the final July 1995 decision is not cumulative or redundant of the evidence of the record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a back condition. 3. In a final decision dated in July 1995, the RO denied the Veteran's claim of entitlement to service connection for a neck condition. 4. Evidence added to the record since the final July 1995 decision is not cumulative or redundant of the evidence of the record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a neck condition. 5. In a final decision dated in July 1995, the RO denied the Veteran's claim of entitlement to service connection for a left knee condition. 6. Evidence added to the record since the final July 1995 decision is not cumulative or redundant of the evidence of the record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left knee condition. CONCLUSIONS OF LAW 1. New and material evidence has been received since the issuance of a final July 1995 decision; the criteria for reopening the claim for service connection for a back condition are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received since the issuance of a final July 1995 decision; the criteria for reopening the claim for service connection for a neck condition are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received since the issuance of a final July 1995 decision; the criteria for reopening the claim for service connection for a left knee condition are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As the Board's decision to reopen the Veteran's claim of entitlement to service connection for disabilities of the back, neck and left knee is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the issues is deferred pending additional development consistent with the VCAA. II. Reopening a Claim Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The 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, the Secretary 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). III. Back Condition The Board finds new and material evidence sufficient to reopen the Veteran's claim for a back condition. A July 1995 rating decision denied the Veteran's claim for service connection for a lower back condition because the Veteran failed to report to a VA examination and there was insufficient evidence. The Veteran did not appeal, and new and material evidence was not received within the appellate period; thus the July 1995 rating decision is final. 38 C.F.R. §§ 20.200. Since July 1995, new evidence has been added to the claims file. New evidence pertinent to this case includes a March 2010 medical summary from the Veteran's private physician. The Veteran's private physician provided evidence that the Veteran has a current back condition and that he implied that the Veteran had back pain since service. The March 2010 medical summary is new and material evidence. The medical summary is not redundant of past evidence and therefore new. The March 2010 opinion is material because it goes to the unestablished fact of whether the Veteran had a current back disability and a possible nexus to service. Therefore, the March 2010 private medical summary is new and material evidence. In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the Veteran has provided new and material evidence, reopening this claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). IV. Neck Condition The Board finds new and material evidence sufficient to reopen the Veteran's claim for a neck condition. A July 1995 rating decision denied the Veteran's claim for service connection for neck condition because the Veteran failed to report to a VA examination and there was evidence that the Veteran did not have a neck disability. The Veteran did not appeal, and new and material evidence was not received within the appellate period; thus the July 1995 rating decision is final. 38 C.F.R. §§ 20.200. Since July 1995, new evidence has been added to the claims file. New evidence pertinent to this case includes a March 2010 medical summary from the Veteran's private physician. The Veteran's private physician provided evidence that the Veteran has a current neck condition. The March 2010 medical summary is new and material evidence. The medical summary is not redundant of past evidence and therefore new. The March 2010 opinion is material because it goes to the unestablished fact of whether the Veteran has a current neck disability. Therefore, the March 2010 private medical summary is new and material evidence. In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the Veteran has provided new and material evidence, reopening this claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). V. Left Knee Condition The Board finds new and material evidence sufficient to reopen the Veteran's claim for a left knee condition. A July 1995 rating decision denied the Veteran's claim for service connection for left knee condition because the Veteran failed to report to a VA examination and there was evidence that the Veteran did not have a knee disability. The Veteran did not appeal, and new and material evidence was not received within the appellate period; thus the July 1995 rating decision is final. 38 C.F.R. §§ 20.200. Since July 1995, new evidence has been added to the claims file. New evidence pertinent to this case includes a March 2010 medical summary from the Veteran's private physician. The Veteran's private physician provided evidence that the Veteran was treated for a left knee disability. The March 2010 medical summary is new and material evidence. The medical summary is not redundant of past evidence and therefore new. The March 2010 opinion is material because it goes to the unestablished fact of whether the Veteran has a current left knee disability. Therefore, the March 2010 private medical summary is new and material evidence. In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the Veteran has provided new and material evidence, reopening this claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for a neck disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for a left knee disorder is reopened; the appeal is granted to this extent only. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. The RO scheduled the Veteran for VA examinations for TMJ, left knee, neck, and back disabilities. The record indicates that the Veteran failed to report to these examinations. The Veteran's representative stated that the letter notifying the Veteran of the examinations was sent to the wrong address; and, therefore, the Veteran was unaware of his examinations. The record indicates that the VA examination request forms had multiple addresses noted for the Veteran. It is unclear which address VA sent notification for the Veteran's examinations. Giving the Veteran the benefit of the doubt, the Board finds a remand is warranted. The RO should locate/identify the Veteran's current address and then schedule the Veteran for VA examinations for his knee, back, neck, and TMJ claims. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's correct address. All efforts to obtain this information should be documented in the claims file. 2. Schedule the Veteran for a VA spine examination of his back and neck claims. All indicated tests and studies should be conducted. The electronic claims file must be made available to the examiner, and the examination report must reflect that it has been reviewed. At the conclusion of the physical examination and record review, address the following questions: a) Identify all current back and neck disabilities. b) As to each diagnosed neck and/or back disability, is at least as likely as not (50 percent probability or greater) that any diagnosed neck and/or back disability had its onset in active duty service or is otherwise related to any in-service disease, event, or injury. c) The Veteran's service treatment records allude to a motor vehicle accident (MVA) prior to service, if the examiner opines that the MVA caused or is related to any diagnosed back and/or neck disability then the examiner must opine as to whether there is clear and unmistakable evidence (medically undebatable) that the Veteran's diagnosed back and/or neck disability preexisted service and was not aggravated (permanently worsened) by service. If there was an aggravation of a preexisting disability, is there clear and unmistakable (medically undebatable) evidence that this aggravation was due to the natural progress of the condition. d) The examiner must provide a detailed rationale for all opinions and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. 3. Schedule the Veteran for a left knee examination. All indicated tests and studies should be conducted. The electronic claims file must be made available to the examiner, and the examination report must reflect that it has been reviewed. At the conclusion of the physical examination and record review, address the following questions: a) Identify all current left knee disabilities. b) As to each diagnosed left knee disability, is at least as likely as not (50 percent probability or greater) that any diagnosed left knee disability had its onset during service or is otherwise related to any in-service disease, event, or injury. c) The examiner must provide a detailed rationale for all opinions and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. 4. Schedule the Veteran for a VA examination to address his TMJ claim. All indicated tests and studies should be conducted. The electronic claims file must be made available to the examiner, and the examination report must reflect that it has been reviewed. At the conclusion of the physical examination and record review, address the following questions: a) Whether the Veteran has a current diagnosis of a TMJ disorder. b) Is it at least as likely as not (50 percent probability or greater) that any current TMJ disorder had its onset in active duty service or is otherwise related to any in-service disease, event, or injury to include an in-service tonsillectomy. The examiner should address the Veteran's service treatment records that indicate in April 1992 the Veteran complained of jaw tightness, jaw popping, and on rare occasions his jaw locking open and a May 1994 service dental record noting that the Veteran was a bruxer with pronounced pop in both TMJs and bilateral pain, especially in left joint; assessment was chronic bruxer with possible internal derangement of TMJ. The examiner should also address the Veteran's March 2010 private dentist's opinion that the Veteran's current symptoms are consistent with a history of trauma due to hyperextension of mandible during surgeries. c) The examiner must provide a detailed rationale for all opinions and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs