Citation Nr: 1808736	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-07 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to a disability rating in excess of 20 percent for right ankle disability. 

2. Entitlement to a disability rating in excess of 20 percent for left ankle disability.

3. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 

4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for back disability. 
 
5. Entitlement to service connection for back disability. 
 

REPRESENTATION

Veteran represented by:	Daniel Smith, Attorney at Law


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1987 to August 1987 and from January 1990 to February 1998.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from the January 2009 and January 2014 rating decisions of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA).  The January 2009 rating decision denied increase rating for bilateral ankle condition and service connection for back disability.  On the other hand, the January 2014 rating decision granted service connection for PTSD and assigned a 50 percent disability rating.  The Veteran disagreed with the rating assigned for his PTSD. 

The issue of service connection for back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACTS

1. The Veteran did not timely appeal the July 1999 rating decision that denied service connection for lumbar or thoracic spine condition; this rating decision became final.

2. Evidence received since July 1999 relates to a previously unestablished element of the claim regarding the Veteran's back disability and raises a reasonable probability of substantiating the claim.

3. The Veteran's attorney-representative withdrew the claim for increase rating for PTSD, as well as the right and left ankle disabilities.
CONCLUSIONS OF LAW

1. The July 1999 rating decision that denied claim for service connection for lumbar or thoracic spine condition is final.  38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017).

2. New and material evidence has been received, and the claim for service connection for back disability may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

4. The criteria are met for withdrawal of the substantive appeal for entitlement to an initial rating in excess of 50 percent for PTSD. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

5. The criteria are met for withdrawal of the substantive appeal for entitlement to a rating in excess of 20 percent for right ankle disability. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

6. The criteria are met for withdrawal of the substantive appeal for entitlement to a rating in excess of 20 percent for left ankle disability. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.   Ordinarily, the Board must ensure that the required notice and assistance provisions of the VCAA have been properly applied.  In this case, however, the Board need not discuss whether there has been compliance with VCAA as it is only rendering a favorable final decision with respect to reopening the claim for service connection for back disability.  Therefore, any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2017). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

II. New and Material

In general, the RO's determination not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108; 7105 (2012).  

 "New" evidence means evidence not previously submitted to the RO.  On the other hand, "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 already of record at the time of the last 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)(2017).  This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).

Here, the July 1999 rating decision denied service connection for lumbar or thoracic spine for lack of evidence showing permanent residual or chronic disability.  Because the Veteran did not appeal the denial within one year, it became final.  Since July 1999, the Veteran has undergone a VA examination in January 2009, where a lumbar strain was diagnosed.  This examination is new evidence as it was not considered in the July 1999 rating decision.  To the extent, the examination reflects diagnosis of lumbar strain; it is material evidence that goes towards substantiating the claim.  Therefore, the Board finds new and material evidence to reopen the claim for service connection for back disability. 

III. Withdrawn Claims

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017).

Prior to the promulgation of a decision in this case, in January 2018, the Veteran, with the assistance of his attorney-representative, submitted statements withdrawing the claims for increased rating for PTSD in excess of 50 percent.  The Veteran's attorney-representative also filed a letter withdrawing the claim for increase rating for the right and left ankle disabilities in May 2016. 

Therefore, a "case or controversy" involving a pending adverse determination that the Veteran has taken exception to does not currently exist with respect to the above-listed issues. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994).  Accordingly, the Board does not have jurisdiction to review the appeal for increased rating for PTSD and bilateral ankle disabilities, and thereby they are dismissed.


ORDER

The claim for service connection for back disability is reopened; the appeal is granted to this extent only.

The appeal concerning the claim of entitlement to an initial rating in excess of 50 percent for PTSD is dismissed.

The appeal concerning the claim of entitlement to a rating in excess of 20 percent for right ankle disability is dismissed.

The appeal concerning the claim of entitlement to a rating in excess of 20 percent for left ankle disability is dismissed.


REMAND

The Board regrets further delay, but additional development is necessary to decide the remaining claim.

The Veteran underwent a VA examination in January 2009 that is of record.  The Board finds that the examination report is internally inconsistent and inadequate for the Board to adjudicate the claim.  That is, the examination report shows that the Veteran has diagnosis of lumbar strain.  However, in the comment section of the report, the examiner notes that the Veteran "had no recent treatment or diagnosis of back condition."   VA has a duty to obtain an adequate medical nexus opinion when one is necessary to adjudicate a claim.  Therefore, a remand is warranted to obtain an adequate medical examination and opinion.    

Accordingly, the case is REMANDED for the following action:

1. Update VA medical records.

2. After completion of directives #1, schedule the Veteran for a VA examination to determine the etiology of his back disability. The Veteran's claims file must be made available to the examiner for review.  The examiner must take a complete history from the Veteran.  All indicated tests and studies should be completed.

The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Is the Veteran's back disability at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran's active military service?  

A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is the case.

3.  The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

4.  Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case to him and his representative and allow the applicable time for response.  Then, return the case to the Board.

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).

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).



______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs