Citation Nr: 18136277 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 15-08 385 DATE: September 18, 2018 ORDER New and material evidence having been received, the application to reopen the claim of service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for lumbar and cervical spine arthritis is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with peripheral neuropathy of the upper and lower extremities is remanded. Entitlement to a compensable rating for tension headaches is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a December 2009 rating decision, the Regional Office (RO) denied service connection for a low back disability. The Veteran did not file a notice of disagreement and no new and material evidence was received within the appeal period. 2. The evidence received since the December 2009 rating decision is not duplicative or cumulative of evidence previously of record and it raises the reasonable possibility of substantiating the Veteran’s claim of service connection for a low back disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a low back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from May 1969 to December 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which increased the disability rating for the Veteran’s service-connected PTSD to 50 percent, continued the 20 percent disability rating for diabetes mellitus, type II, with peripheral neuropathy of the upper and lower extremities, continued the noncompensable rating for tension headaches, denied service connection for arthritis of the spine, and denied entitlement to a TDIU. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2017. A copy of the transcript has been reviewed and associated with the claims file. In an October 2010 rating decision, the RO decreased the disability rating for the Veteran’s service-connected prostate cancer from 100 percent to 40 percent disabling and notified the Veteran in a letter dated in October 2010. The Veteran filed a Notice of Disagreement (NOD) in July and September 2011. Subsequently, the RO issued a Statement of the Case (SOC) and mailed a copy to the Veteran in July 2012. The Veteran or his representative did not file a substantive appeal within sixty days from the date that the SOC was mailed in order to perfect the appeal. See 38 U.S.C. § 7105; 38 C.F.R. § 20.202. At the hearing in April 2017 and in subsequent written argument, the Veteran’s representative continued to express disagreement with regard to the issue of the reduction of his disability rating for prostate cancer and indicated that Board should have jurisdiction over this issue. As discussed, the Board does not have jurisdiction over this issue given that the Veteran and/or his representative did not file a timely substantive appeal. Accordingly, the Board finds that the argument set forth in the April 2017 hearing and in subsequent written argument does not constitute a substantive appeal, but rather, an informal claim with regard to the issue of an increased rating for the Veteran’s service-connected prostate cancer. It is noted that effective March 24, 2015, VA no longer recognizes informal claims. Therefore, if it is the Veteran’s intent to pursue a claim of an increased rating for his service-connected prostate cancer, he is reminded of the need to complete a VA Form 21-0958. Whether new and material evidence has been submitted to reopen the claim of service connection for a lumbar spine disability Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, the claim of service connection for a low back disability was denied because the evidence did not reveal that the Veteran’s arthritis was incurred in service. The evidence of record at the time of the December 2009 rating decision consisted of the claim form, service treatment records, DD Form 214, military personnel records, VA treatment records, and private treatment records. The Veteran was notified of this decision and his procedural rights by letter dated in December 2009. He did not appeal this determination and no additional evidence was submitted within a year following this notification letter. As such, the Board finds that the December 2009 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the December 2009 rating decision, additional VA and private treatment records, VA examination, Social Security Administration (SSA) records, and hearing testimony have been associated with the claims file. After a review of the evidence, the Board finds that new and material evidence has been received to reopen the claim of service connection for a low back disability. The evidence is new, as it was not part of the record at the time of the December 2009 rating decision. It is also material, as it relates to an unestablished fact necessary to substantiate the claim. The newly added evidence suggests that the Veteran’s lumbar spine disability may have been incurred in service. Specifically, the Veteran testified at the hearing in April 2017 and indicated that he worked construction in service and was required to carry 70 pounds of material on his back. He indicated that he would wake up in service with a sore back and he has had back pain since that time. Accordingly, the evidence is new and material and the claim of service connection for a lumbar spine disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for lumbar and cervical spine arthritis is remanded. The Veteran has been assessed with degenerative arthritis of the cervical and lumbar spine and asserts that these disorders were incurred in service, including due to his conceded exposure to Agent Orange. The Veteran testified at the hearing and indicated that he assisted in building a bay bridge across a river while he was in service. He was required to lift 70 pounds of materials on his back and would wake up with a sore back. His military personnel records reveal that he was a construction and utility worker in July 1969. During the Veteran’s May 1969 entrance examination, he reported recurrent back pain. Furthermore, during an April 1996 examination, the physician summary indicated that he had arthritis for 25 years. Although the Veteran was afforded a VA examination in November 2011, the examiner did not provide an etiology opinion. Accordingly, the Board finds that a VA examination is warranted in order to determine whether the Veteran had a pre-existing spinal disability that was aggravated by service or, in the alternative, if his lumbar and/or cervical spine disability was incurred in service. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with peripheral neuropathy of the upper and lower extremities is remanded; 3. Entitlement to a compensable rating for tension headaches is remanded; 4. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder is remanded. The Veteran filed a claim for increased ratings for his service-connected PTSD, diabetes mellitus, type II, with peripheral neuropathy of the upper and lower extremities, and tension headaches. The Veteran testified at the hearing in April 2017. He indicated that his medication for his headaches has increased in the previous 4 years. Furthermore, he indicated that he had memory problems, difficulty focusing, and problems walking and sitting for long periods of time. The latest VA examinations to assess the severity of his PTSD, diabetes mellitus with peripheral neuropathy, and tension headaches were performed in November 2011. Given his hearing testimony, along with the fact that his latest examinations were conducted almost 7 years ago, the Board finds that the November 2011 examinations are too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (stating that VA must provide a new examination where a Veteran claims the disability is worse than originally rated and the available evidence is too old to adequately evaluate the current severity). Accordingly, the Board finds that new VA examinations are warranted for on remand. Lastly, the Board notes that the latest VA treatment records are dated in November 2014. Accordingly, the Veteran’s updated VA treatment records should be obtained on remand. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran indicated that he is unable to work due, in part, to his back disability and his service-connected PTSD and headaches. Given that claims of service connection for his spine disability and increased ratings for his PTSD and headaches are pending, the Board will defer adjudication of his claim for entitlement to a TDIU. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records, including mental health records, from November 2014 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to determine the etiology of his lumbar and cervical spine disabilities. The claims folder, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner is to identify all lumbar and cervical spine disabilities found on examination and identified during the pendency of this claim. For any diagnosed disability, the examiner should provide the following opinions: A. Is there clear and unmistakable (undebatable) evidence that any lumbar spine disability pre-existed the Veteran’s military service? B. If the answer to (A) is yes, then is there clear and unmistakable evidence that the pre-existing lumbar spine disability was NOT aggravated (i.e., permanently worsened) during active service? C. If the answer to (A) is no, then is it at least as likely as not that the Veteran’s lumbar spine disability was incurred in and/or otherwise the result of active military service, including his conceded exposure to Agent Orange? D. With regard to the Veteran’s cervical spine disability, is it at least as likely as not that the Veteran’s cervical spine disability was incurred in and/or otherwise the result of active military service, including his conceded exposure to Agent Orange? E. If service connection is warranted for the lumbar spine and/or cervical spine disabilities, please describe the impact of these disabilities on his ability to work. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner must discuss the Veteran’s May 1969 entrance examination, April 1996 examination indicating that the Veteran had arthritis for 25 years, and hearing testimony. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completion of #1, schedule the Veteran for a VA examination to determine the severity of his service-connected PTSD. All appropriate tests, studies, and evaluations should be conducted. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should report all signs and symptoms necessary for rating the Veteran’s disability under the General Rating Formula for Mental Disorders. The examiner should address the level of social and occupational impairment attributable to the Veteran’s PTSD and the impact, if any, on his ability to work. If possible, the examiner should determine how far back (i.e., one year, two years, etc.) these results would apply. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1, schedule the Veteran for VA examination(s) to determine the current severity of his diabetes mellitus, type II, and any complications of diabetes which are not separately rated, including, but not limited to, peripheral neuropathy of the upper and lower extremities. The claims file, to include this remand, must be reviewed by the examiner and such review should be noted in the examination report. A. With regard to the diabetes mellitus, the examiner should specifically note whether the Veteran’s diabetes requires insulin; restricted diet; regulation of activities (defined as avoidance of strenuous occupational and recreational activities for its control); and how many, if any, episodes of ketoacidosis or hypoglycemia reactions requiring hospitalizations and/or visits to a diabetic care provider have occurred. If possible, the examiner should determine how far back (i.e., one year, two years, etc.) these results would apply. B. With regard to peripheral neuropathy of the bilateral upper and lower extremities, the examiner should indicate the nature and severity of all manifestations of the disorders. The examiner should specifically note whether the neurological impairment results in mild, moderate, or severe incomplete paralysis or complete paralysis. If possible, the examiner should determine how far back (i.e., one year, two years, etc.) these results would apply. C. The examiner must discuss the impact of the Veteran’s diabetes mellitus, type II, and peripheral neuropathy of the upper and lower extremities on his ability to work. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1, schedule the Veteran for a VA examination to determine the severity of his service-connected tension headaches. All appropriate tests, studies, and evaluations should be conducted. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should discuss the frequency and severity of his headaches, whether these headaches are characteristic of prostrating attacks, and whether they are productive of severe and economic inadaptability. If possible, the examiner should determine how far back (i.e., one year, two years, etc.) these results would apply. The examiner must discuss the impact of the Veteran’s tension headaches on his ability to work. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel