Citation Nr: 18119455 Decision Date: 07/19/18 Archive Date: 07/18/18 DOCKET NO. 15-15 572 DATE: July 19, 2018 ORDER New and material evidence has been received to reopen a claim for service connection for a lumbar spine disability and the claim is reopened. To that extent only, the claim is granted. New and material evidence has been received to reopen a claim for service connection for a cervical spine disability and the claim is reopened. To that extent only, the claim is granted. New and material evidence has been received to reopen a claim for service connection for right hand carpal tunnel syndrome and the claim is reopened. To that extent only, the claim is granted. REMANDED Service connection for a right shoulder disability is remanded. Entitlement to service connection for back disability is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for right hand carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and mood disorder is remanded. Entitlement to a compensable rating for tension headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed February 1995 rating decision denied service connection for a back disability, and became final. Since that decision, the Veteran has provided new and material evidence regarding the claimed back disability. 2. An unappealed February 2002 rating decision denied service connection for a cervical spine disability, and became final. Since that decision, the Veteran has provided new and material evidence regarding the claimed cervical spine disability. 3. An unappealed May 2002 decision denied service connection for a right hand disability, also claimed as carpel tunnel syndrome, and became final. Since that decision, Since that decision, the Veteran has provided new and material evidence regarding the claimed right hand disability. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the claim for service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7104(b), 7105. 2. New and material evidence having been submitted, the claim for service connection for a cervical spine disability is reopened. 38 U.S.C. §§ 5108, 7104(b), 7105. 3. New and material evidence having been submitted, the claim for service connection for right hand carpal tunnel syndrome is reopened. 38 U.S.C. §§ 5108, 7104(b), 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1981, and had various period of active duty for training (ACDUTRA) from 1987 through December 1993, including in May 1990. Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in April and July 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the April 2015 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, 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. 38 U.S.C. § 5108. New evidence means existing 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that threshold is met, VA should not limit consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen a claim for service connection for a back disability Regarding the claim for service connection for a back disability, a February 1995 rating decision denied service connection, based on the lack of finding of a current disability. The Veteran was notified of that decision and of her appellate rights. She did not submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201. In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156(b). Nor have any relevant, official service department records been received since February 1995. 38 C.F.R. § 3.156(c). Accordingly, the February 1995 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In May 2012, the Veteran filed a claim to reopen the previously denied claim for service connection for a back disability. A December 2012 rating decision declined to reopen the claim, again finding that there was no evidence of a current disability. The Veteran filed a timely notice of disagreement and substantive appeal and the claim is before the Board. The evidence received after the February 1995 rating decision for the claim for service connection includes VA and private treatment records, lay statements from the Veteran, and statements from the representative. The new evidence submitted by the Veteran includes VA and private medical evidence diagnosing the Veteran with lumbar scoliosis and severe foraminal stenosis, which required lumbar fusion surgery in February 2010. The Board finds that evidence is both new and material, as the evidence submitted after the last denial establishes the presence of a current back disability. The Board notes that the Veteran’s claim was previously denied based on the fact that the she did not have an actual diagnosed back disability at the time. Here, as the new evidence of record establishes that the Veteran has a diagnosed back disability, that evidence is new and material, as it is relevant a previously unestablished fact necessary for service connection. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim has been submitted, and the claim is reopened. 38 C.F.R. § 3.156. 2. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disability A February 2002 rating decision denied service connection for a cervical spine disability. The Veteran did not file a timely appeal and that rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In April 2012, the Veteran applied to reopen that claim. A January 2013 rating decision found that there was no new or material evidence related to the Veteran’s claimed cervical spine disability; and, as no new and material evidence had been received, declined to reopen the claim for service connection for a cervical spine disability. The new evidence submitted by the Veteran includes private medical evidence diagnosing a neck disability, to include arthritis and degenerative disc disease (DDD) of the cervical spine. Additionally, the new evidence of record, since February 2002, includes VA medical evidence, to include an X-ray diagnosis of DDD. The Board finds that evidence is both new and material, as the evidence was submitted after the last denial as shows the presence of a current cervical spine disability. The claim was previously denied based on the fact that the she did not have a diagnosed cervical spine disability at the time. The new evidence of record shows, through X-ray evidence, that the Veteran has a diagnosed cervical spine disability. Therefore, that new evidence is material, as it tends to establish a fact necessary for service connection. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim has been submitted, and the claim is reopened. 38 C.F.R. § 3.156. 3. Whether new and material evidence has been received to reopen a claim for service connection for carpal tunnel syndrome right hand A May 2002 Board decision denied service connection for a right hand disability, based on the lack of finding of a current disability and no etiological nexus between any possible right hand disability and active service. The Veteran was notified of that decision and of her appellate rights. She did not appeal the decision and that decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In May 2012, the Veteran filed a claim to reopen the previously denied claim for service connection for a righthand disability. A December 2012 rating decision declined to reopen the claim, again finding that there was no new or material evidence substantiating a positive etiological nexus between a diagnosed right hand disability and active service. The Veteran filed a timely notice of disagreement and subsequent substantive appeal and the claim is before the Board. The evidence received after the most recent final denial of the claim for service connection for a right hand disability includes VA and private treatment records, lay statements from the Veteran, and statements from the Veteran’s representative. The new evidence submitted by the Veteran includes VA and private medical evidence diagnosing carpal tunnel syndrome of the right hand. The Board finds that evidence is both new and material, as the evidence was submitted after the last denial as shows the presence of a current right hand disability, which was not shown at the time of the previous examination. The claim was previously denied based on the fact that the she did not have a diagnosed right hand disability at the time. The new evidence of record shows that the Veteran has a diagnosed right hand disability. Therefore, that new evidence is material, as it tends to establish a fact necessary for service connection. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim has been submitted, and the claim is reopened. 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Service connection for a right shoulder condition is remanded. 2. Entitlement to service connection for back disability is remanded. 3. Entitlement to service connection for a cervical spine disability is remanded. 4. Entitlement to service connection for right hand carpal tunnel syndrome is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for a right shoulder disability, back disability, cervical spine disability, and right hand carpal tunnel syndrome because no VA examiner has opined whether the claimed right shoulder, back, and cervical spine disabilities are etiologically related to the Veteran’s active service. Furthermore, the Veteran now has a diagnosed carpal tunnel syndrome in the right hand and an opinion is needed as to whether that is related to service. The Veteran was not provided a VA examination to assess the nature and etiology of any right shoulder disability. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that sufficient evidence is of record to trigger the VA’s duty to obtain a competent medical opinion with regard to any potential etiological relationship between the Veteran’s right shoulder, back, cervical spine, and right carpal tunnel syndrome disabilities and active service. The Board notes that the competent medical evidence of record shows evidence of the presence of the claimed disabilities. The Board also acknowledges that the Veteran is competent to state what symptoms she experiences that she believes are related to the claimed disabilities. Bruce v. West, 11 Vet. App. 405 (1998); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board finds that the claim must be remanded for further development, to include scheduling a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to a compensable rating for tension headaches is remanded. The most recent examination to assess the nature and severity of service-connected headaches was in January 2013, more than five and a half years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding the Veteran’s headaches have been set forth by the Veteran’s representative since that examination. When available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the current level of disability due to headaches. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the claim for increased ratings for headaches. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 6. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and mood disorder is remanded. The most recent examination to assess the nature and severity of service-connected PTSD was in August 2014, nearly four years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding the Veteran’s PTSD have been set forth by the Veteran’s representative since that examination. When available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the current level of disability due to PTSD. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the claim for increased ratings for PTSD. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 7. Entitlement to a total disability rating based on individual unemployability is remanded. With regard to the claim for TDIU, as the claims for increased rating for PTSD and headaches are being remanded for additional development, and claims for service connection are being remanded, the outcome of those claims could have a direct bearing on the claim for TDIU. Therefore, the Board finds that the claims remanded are inextricably intertwined with any analysis of the claim for TDIU. Accordingly, since those claims are being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider the claim for TDIU prior to a resolution of the other claims. Bernard v. Brown, 4 Vet. App. 384 (1993); Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. Then, schedule the Veteran for a VA examination to assess the current nature and severity of service-connected headaches. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly address the functional impairments caused by the Veteran’s headache disability, both occupationally and socially. The examiner should opine regarding the frequency and severity of headaches and whether there are prostrating attacks and the frequency and severity of any prostrating attacks of headaches. 3. Schedule the Veteran for a VA examination for right shoulder or arm, cervical spine, back, and right carpal tunnel syndrome disabilities. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a complete rationale for any opinions provided. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any disabilities of the cervical spine, back, right shoulder or arm, or right carpal tunnel syndrome, are related to any incident of service, to specifically include the Veteran’s confirmed physical assault during service for training in May 2010. The examiner must reconcile any opinion with that of any previous examination results of record. With specific regard to the cervical spine disability, the examiner must address the March 1998 VA examination which positively associated any cervical spine disability to the Veteran’s in-service assault. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that any disabilities of the cervical spine, back, right shoulder or arm, and right carpal tunnel syndrome are due to or the result of any service-connected disabilities. The examiner should further opine whether it is at least as likely as not (50 percent probability or greater) that any disabilities of the cervical spine, back, right shoulder or arm, and right carpal tunnel syndrome have been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disabilities. 4. Then, schedule the Veteran for a VA examination to assess the current nature and severity of PTSD. The examiner must review the claims file and should note that review in the report. The examiner should opine regarding the levels of social and occupational impairment caused by PTSD and should describe the symptoms, and the frequency and severity of those symptoms, that causes those levels of impairment. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly address whether the service-connected PTSD and tension headaches prevent the Veteran from obtaining or maintaining substantially gainful employment, without consideration of any non-service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel