Citation Nr: 18122425 Decision Date: 07/30/18 Archive Date: 07/30/18 DOCKET NO. 95-04 263 DATE: July 30, 2018 ORDER As new and material evidence has been received, the claim of entitlement to service connection for low back disability is reopened. REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the right knee is remanded. Entitlement to service connection for a low back disability, to include as secondary to right knee disabilities, left knee disability, and/or left great toe disability, is remanded. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the left knee is remanded. Entitlement to a rating in excess of 30 percent for residuals of a neck injury with spondylosis and degenerative joint disease (DJD) is remanded. Entitlement to an initial rating in excess of 10 percent from February 3, 1994 to November 2, 2006 and from February 1, 2007 to October 25, 2007 for injury to left great toe with hallux valgus with gout and initial rating in excess of 10 percent from October 25, 2007 to December 7, 2014 and in excess of 30 percent since March 1, 2015 for left great toe amputation is remanded. Entitlement to an initial compensable rating for residual scar of the left great toe is remanded. FINDINGS OF FACT 1. In an August 1996 Board decision, the claim for entitlement to service connection for low back disability was denied and affirmed by the United States Court of Appeals for Veterans Claims (Court) in a December 1997 Joint Motion for Remand (JMR). 2. In a November 1998 VA rating decision, the petition to reopen service connection for low back disability was denied; the Veteran was notified of this action and of his appellate rights, but did not file a timely Notice of Disagreement or submit new and material evidence within a year thereafter. 3. The evidence received since the November 1998 VA rating decision, regarding service connection for low back disability, is not cumulative and redundant and raises the possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The August 1996 Board decision, denying entitlement to service connection for low back disability, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (2017). 2. The November 1998 VA rating decision, denying reopening the issue of entitlement to service connection for low back disability, is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 3.104, 20.204, 20.302, 20.1103 (2017). 3. New and material evidence has been received since the November 1998 VA rating decision to reopen the claim for service connection for low back disability. 38 U.S.C. §§ 1110, 1131, 5108, 7104(b) (2012); 38 C.F.R. §§ 3.156, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1973 to January 1987. Before reaching the merits of the claim for low back disability, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized these issues accordingly. In the March 2014 substantive appeal, VA Form 9, the Veteran requested a video conference hearing before the Board. In September 2014, the Board remanded the case for the Veteran to be scheduled for such hearing, and the Veteran’s request to withdraw his hearing request was received in June 2015. A private attorney revoked his representation and withdrew as the Veteran’s representative for the issues on appeal in October 2015 after the certification of this appeal. The record reflects that written notice was provided to the Board and Veteran. In October 2015, a notice letter was sent to the Veteran affording him the opportunity to select another representative. As of this date, there has been no response from the Veteran regarding this matter; therefore, the Board will proceed under the assumption that he wishes to represent himself. See 38 C.F.R. § 20.608(a) (2017). In August 1996, the Board, in part, denied the issues of initial higher ratings for traumatic arthritis of the right knee, traumatic arthritis of the left knee, and left great toe. The Veteran appealed the August 1996 Board decision for these issues to the United States Court of Appeals for Veterans Claims (Court). Counsel for the appellant and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated in December 1997 granted the motion and remanded these issues to the Board. In June 1998, March 2003, February 2009, September 2014, the Board remanded theses pursuant to the JMR and for additional evidentiary development. In September 2015 and August 2017, the Board also remanded the issues of higher initial ratings for traumatic arthritis of the left knee and left great toe for additional evidentiary development. These three issues have been returned to the Board for appellate review. In February 2009, the Board also denied the issues of higher initial rating for right knee instability and residuals of a neck injury with spondylosis and DJD. Pursuant to the Veteran’s clam for a higher rating for residuals of a neck injury with spondylosis and DJD, in September 2015 and August 2017, the Board remanded this issue for additional evidentiary development and has been returned to the Board for appellate review. In September 2015 and August 2017, the Board also remanded the issues of whether new and material evidence had been received to reopen service connection for low back disability, service connection for sleep disorder, and higher initial rating for scar on the left great toe for additional evidentiary development. These three issues have been returned to the Board for appellate review. Lastly, the Board notes that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was granted, effective from December 20, 2010, in an October 2014 VA rating decision, and the issue of entitlement to a TDIU prior to December 20, 2010 was dismissed in the September 2015 Board decision. Whether new and material evidence has been received to reopen a previously denied claim of service connection for low back disability In an October 1994 VA rating decision, the claim for entitlement to service connection for low back disability was denied. This issue was perfected on appeal and denied in an August 1996 Board decision and affirmed by the Court in a December 1997 JMR. Therefore, the August 1996 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1100. In June 1998, the Veteran requested to reopen the previously denied claim of service connection for low back disability. In a November 1998 VA rating decision, the reopening of this claim was denied. The Veteran was notified of this action and of his appellate rights, but did not file a timely notice of disagreement or submit new and material evidence within a year thereafter. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence received since the November 1998 VA rating decision includes a December 2010 statement from the Veteran (notice of disagreement with the April 2010 VA rating decision on appeal) in which he asserts his low back disability is secondary to his service-connected right and left knee disabilities. Additionally, a March 2013 VA Disability Benefits Questionnaire (DBQ) medical opinion was obtained regarding whether the Veteran’s low back disability is secondary to his service-connected left great toe disability. Although “a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104(b) (2012)],” any evidence supporting a new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Board finds that this evidence is new and material to the element of establishing a nexus on a secondary basis, which was not established at the time of the November 1998 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.310. REASONS FOR REMAND 1. Entitlement to service connection for low back disability, to include as secondary to service-connected right knee disabilities, left knee disability, and/or left great toe disability During the course of the appeal, the Veteran was afforded a VA DBQ examination for back conditions in March 2013. Following the clinical evaluation, the examiner rendered a diagnosis of degenerative disc disease and explained why it is less likely than not related to the Veteran’s military service and less likely than not caused by the service-connected right knee disabilities, left knee disability, and left great toe disabilities. In light of the Veteran’s contentions regarding this claim during the appeal period, the Board finds that additional development is needed to properly adjudicate this claim. Specifically, review of the record does not show that a VA medical opinion has been provided addressing the etiology of the Veteran’s low back disability on a secondary basis for aggravation. See 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disabilities During the course of the appeal, review of VA treatment records shows the Veteran’s prescribed treatment for sleep impairment and reported symptoms of sleep impairment due to pain from his service-connected disabilities and due to his service-connected depressive disorder. As such, the Board finds that additional development is needed to determine the existence and etiology of any current disability or functional impairment of the Veteran’s sleep impairment since separation from service. See 38 C.F.R. §§ 3.303, 3.310 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the right knee Following the December 1997 JMR, this issue was remanded by the Board for additional evidentiary development in June 1998, March 2003, February 2009, and September 2014. While it was noted in September 2015 that the Board lacked jurisdiction over this issue because there was no indication of a notice of disagreement or statement of the case since the February 2009 Board decision, that was inaccurate and the issue is still on appeal for appellate review. As of this date, this issue was last readjudicated by the RO in a December 2012 supplemental statement of the case. 4. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the left knee 5. Entitlement to a rating in excess of 30 percent for residuals of a neck injury with spondylosis and DJD 6. Entitlement to an initial rating in excess of 10 percent from February 3, 1994 to November 2, 2006 and from February 1, 2007 to October 25, 2007 for injury to left great toe with hallux valgus with gout and initial rating in excess of 10 percent from October 25, 2007 to December 7, 2014 and in excess of 30 percent since March 1, 2015 for left great toe amputation 7. Entitlement to a compensable rating for residual scar of the left great toe Due to the similar dispositions for these claims on appeal, the Board will address them in a common discussion below. In a May 2018 letter, the Veteran was notified of additional evidence obtained and associated with the record since the December 2017 supplemental statement of the case (SSOC). Such evidence consists of VA treatment records dated from January 2017 to February 2018 and vocational rehabilitation and education folder dated from November 2013 to January 2014. The Veteran was requested to specify whether he waives the right to have such evidence initially reviewed by the Regional Office (RO) or to have the case sent back to the RO for initial review, and informed that if no response was received within 45 days from the date of the letter that the Board will assume the Veteran does not wish to have the Board decide the appeal at this time and will remand it to the RO for review. Review of the record shows that no response was received by the Veteran within 45 days of the May 2018 letter. The matters are REMANDED for the following actions: 1. Return the Veteran’s claims file to the examiner who conducted the March 2013 VA DBQ examination for back conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran’s low back disability was aggravated beyond its natural progression by his service-connected right knee disabilities, left knee disability, and/or left great toe disability. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his sleep impairment. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The clinician must identify whether, at any time since June 2008 (even if since resolved), the Veteran has had functional impairment due to sleep impairment. Then, the clinician must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s identified sleep impairment began during active service. (b.) Whether it is at least as likely as not that the Veteran’s identified sleep impairment was proximately due to or the result of any of his service-connected disabilities, including his depressive disorder. (c.) Whether it is at least as likely as not that the Veteran’s identified sleep impairment was aggravated beyond its natural progression by any of his service-connected disabilities, including his depressive disorder. (d.) Whether it is at least as likely as not that the Veteran’s identified sleep impairment is already contemplated and manifested with his service-connected depressive disorder. Note – the Veteran is currently service connected for the following disabilities: depressive disorder, gout, residuals of neck injury, left great toe including amputation, traumatic arthritis of the right and left knees, right knee instability, left ankle, status post removal of the left second toe, and scar on the left great toe. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. If it is determined that additional evidence or additional opinion is needed, such development should be undertaken, to include scheduling the Veteran for examination(s) with an appropriate clinician to determine the current severity of his traumatic arthritis of the right knee, traumatic arthritis of the left knee, results of a neck injury with spondylosis and DJD, injury to left great toe with amputation, and residual scar of the left great toe. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for any opinions provided. (Continued on the next page)   4. Readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel