Citation Nr: 1817366 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-22 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral thumb disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for fibrositis in multiple joints. 3. Entitlement to a disability rating greater than 60 percent for a lumbosacral spine disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due exclusively to a service-connected lumbosacral spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1972 to August 1974 and from November 1981 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, in which the RO denied the Veteran's request to reopen a previously denied claim of service connection for a bilateral thumb disability and essentially reopened the Veteran's previously denied claim of service connection for fibrositis in multiple joints (which was characterized as fibrositis involving multiple joints (claimed as right shoulder condition)). The Veteran disagreed with this decision later in November 2010. He perfected a timely appeal in June 2014. The Board observes that, in an April 1999 rating decision, the Agency of Original Jurisdiction (AOJ) (in this case, the RO) denied the Veteran's claim of service connection for a bilateral thumb disability. In a March 2010 rating decision, the AOJ denied, in pertinent part, the Veteran's request to reopen a previously denied claim of service connection for fibrositis. The Veteran did not appeal either of these rating decisions and they became final. See 38 U.S.C. § 7104 (West 2012). He also did not submit any relevant evidence or argument within 1 year of the April 1999 or March 2010 rating decisions which would render either of these rating decisions non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for a bilateral thumb disability and for fibrositis in multiple joints are as stated on the title page. Regardless of the AOJ's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). This matter next is on appeal from an August 2011 rating decision in which the AOJ denied the Veteran's claims for a disability rating greater than 60 percent for a lumbosacral spine disability (which was characterized as degenerative disc disease with left sciatica, muscle spasm, and absent ankle jerk) and for a TDIU due exclusively to a service-connected lumbosacral spine disability (which was characterized as a TDIU claim). The Veteran disagreed with this decision in September 2011 with respect to the denial of his TDIU claim. He perfected a timely appeal in July 2014 with respect to the denial of his TDIU claim. Unfortunately, in a supplemental statement of the case (SSOC) issued to the Veteran and his service representative in July 2014, the AOJ readjudicated the Veteran's increased rating claim for a lumbosacral spine disability in addition to readjudicating the currently appealed TDIU claim. The service representative subsequently presented argument concerning the Veteran's increased rating claim for a lumbosacral spine disability on a VA Form 646 submitted to the AOJ later in July 2014. The representative also submitted argument concerning the Veteran's increased rating claim for a lumbosacral spine disability in an Informal Hearing Presentation (IHP) submitted to the Board in February 2018. It is clear to the Board that, although the Veteran did not disagree with the August 2011 rating decision with respect to the denial of his increased rating claim for a lumbosacral spine disability, he and his service representative have been led to believe by the AOJ's actions following the August 2011 rating decision that this issue is in appellate status. It also is clear to the Board that the AOJ implicitly waived timely filing of an appeal with respect to this issue. Thus, the Board has jurisdiction over an increased rating claim for a lumbosacral spine disability. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (finding that VA may waive timely filing of substantive appeal implicitly or explicitly and as to any issue or claim raised in substantive appeal). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated on the title page. The issues of entitlement to a disability rating greater than 60 percent for a lumbosacral spine disability and entitlement to a TDIU due exclusively to a service-connected lumbosacral spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In a rating decision dated on April 14, 1999, and issued to the Veteran and his service representative on April 16, 1999, the AOJ denied a claim of service connection for a bilateral thumb disability; this decision was not appealed and became final. 2. The evidence received since the April 1999 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran's claim of service connection for a bilateral thumb disability and does not relate to an unestablished fact necessary to substantiate this claim. 3. In a rating decision dated on March 15, 2010, and issued to the Veteran and his service representative on March 23, 2010, the AOJ denied, in pertinent part, a request to reopen the previously denied claim of service connection for fibrositis in multiple joints; this decision was not appealed and became final. 4. The evidence received since the March 2010 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran's claim of service connection for fibrositis in multiple joints and does not relate to an unestablished fact necessary to substantiate this claim. CONCLUSIONS OF LAW 1. The April 1999 rating decision, which denied the Veteran's claim of service connection for a bilateral thumb disability, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 2. Evidence received since the April 1999 AOJ decision in support of the claim of service connection for a bilateral thumb disability is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The March 2010 rating decision, which denied the Veteran's request to reopen a previously denied claim of service connection for fibrositis in multiple joints, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 4. Evidence received since the March 2010 AOJ decision in support of the claim of service connection for fibrositis in multiple joints is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that new and material evidence has been received sufficient to reopen his previously denied claims of service connection for a bilateral thumb disability and for fibrositis in multiple joints (which he characterizes as a shoulder disability). In April 1999, the AOJ denied the Veteran's claim of service connection for a bilateral thumb disability. In March 2010, the AOJ denied, in pertinent part, the Veteran's request to reopen a previously denied claim of service connection for fibrositis in multiple joints. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. The Veteran did not initiate an appeal of either of these rating decisions and they became final. He also did not submit any statements relevant to either of these claims within 1 year of either of these rating decisions which would render either of them non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie, 24 Vet. App. at 251-52. The claims of service connection for a bilateral thumb disability and for fibrositis in multiple joints may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen his previously denied service connection claim for a bilateral thumb disability in statements on a VA Form 21-0820 which was dated on May 28, 2010. He filed an application to reopen his previously denied service connection claim for fibrositis in multiple joints in a letter dated on July 28, 2010, and date-stamped as received by the AOJ on August 2, 2010. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen a claim of service connection for a bilateral thumb disability, the evidence before VA at the time of the prior final AOJ decision consisted of his service treatment records, post-service VA outpatient treatment records and examination reports, and lay statements. The AOJ found no complaints of or treatment for a bilateral thumb disability in the Veteran's available service treatment records. The AOJ also found that, although the Veteran had been diagnosed as having and treated for a right thumb infection after service separation, this condition was acute, transitory, and resolved with treatment. The AOJ finally found that there was no current diagnosis of a bilateral thumb disability which could be attributed to active service. Thus, the claim was denied. With respect to the Veteran's application to reopen a claim of service connection for fibrositis in multiple joints, the evidence before VA at the time of the prior final AOJ decision consisted of additional post-service VA outpatient treatment records and lay statements. The AOJ found that none of this newly received evidence was material because it did not relate to an unestablished fact necessary to substantiate the previously denied claim. Thus, the claim was not reopened. The newly received evidence includes additional VA and private outpatient treatment records and additional lay statements from the Veteran. Despite the Veteran's assertions to the contrary, none of the newly received evidence shows that he experiences any current disability due to either his claimed bilateral thumb disability or his claimed fibrositis in multiple joints which is related to active service or any incident of service. It appears that the only evidence the Veteran submitted in support of his application to reopen his previously denied service connection claim for a bilateral thumb disability consists of lay statements regurgitating his prior assertions that he experiences current bilateral thumb disability which is related to active service. The Board also notes that, following VA examination in September 2010, the VA examiner concluded that there was no evidence of any current disability due to the claimed fibrositis in multiple joints. In other words, the newly received evidence is cumulative and redundant of evidence previously considered by VA. The Board observes in this regard that, in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. In this case, however, there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening either of the Veteran's previously denied service connection claims for a bilateral thumb disability or for fibrositis in multiple joints. Unlike in Shade, there is no evidence in this case - either previously considered in the April 1999 AOJ decision, which denied service connection for a bilateral thumb disability, the March 2010 AOJ decision, which denied a request to reopen the previously denied service connection claim for fibrositis in multiple joints, or received since each of these decisions became final - which demonstrates that the Veteran experiences any current disability due to either his claimed bilateral thumb disability or his claimed fibrositis in multiple joints which is attributable to active service or any incident of service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's requests to reopen his previously denied service connection claims for a bilateral thumb disability and for fibrositis in multiple joints. In summary, as new and material evidence has not been received, the previously denied claims of service connection for a bilateral thumb disability and for fibrositis in multiple joints are not reopened. ORDER As new and material evidence has not been received, the previously denied claim of service connection for fibrositis in multiple joints is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for a bilateral thumb disability is not reopened. REMAND The Veteran contends that his service-connected lumbosacral spine disability is more disabling than currently evaluated. He also contends that his service-connected lumbosacral spine disability, alone or in combination with his other service-connected disabilities, precludes his employability, entitling him to a TDIU. Having reviewed the record evidence, the Board finds that additional development is required before either of these claims can be adjudicated on the merits. With respect to the Veteran's increased rating claim for a lumbosacral spine disability, the Board observes that he was examined most recently for this disability in April 2011. The Veteran's service representative argued in the February 2018 IHP that a new examination was necessary to determine the current nature and severity of this disability. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA spine examination in April 2011, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected lumbosacral spine disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. With respect to the Veteran's TDIU claim, the Board observes that adjudication of the increased rating claim for a lumbosacral spine disability being remanded in this decision likely will impact adjudication of the TDIU claim. Thus, the Board finds that both of these claims are inextricably intertwined and adjudication of the Veteran's TDIU claim must be deferred. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records which have not been obtained already. 2. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected lumbosacral spine disability. The examiner is asked to state the occupational impact of this disability on the Veteran's employability, if possible. 3. Readjudicate the appeal. The appellant 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 (West 2012). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs