Citation Nr: 1824307	
Decision Date: 04/24/18    Archive Date: 05/03/18

DOCKET NO.  14-31 210A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been submitted for entitlement to service connection for a low back disorder.

2. Entitlement to service connection for traumatic brain injury (TBI).

3. Entitlement to service connection for benign neoplasm of the ear.

4. Entitlement to service connection for a sciatic nerve disorder.

5. Entitlement to a total disability rating due to unemployability for service connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Ralph J. Bratch, Attorney

ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from February 1980 to January 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Board has modified the Veteran's lumbar spine claims to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim").

The issues of entitlement to service connection for a low back disorder, entitlement to service connection for a sciatic nerve disorder, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. A March 1991 rating decision last denied the Veteran's petition to reopen the previously denied claim for service connection for a low back disorder.

2. Evidence pertaining to the Veteran's low back disorder since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim.

3. The Veteran does not have a current diagnosis of TBI.

4. The Veteran does not have a current diagnosis of benign neoplasm of the ear. 


CONCLUSIONS OF LAW

1. The March 1991 rating decision that last denied the Veteran's petition to reopen the previously denied claim for service connection for a low back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2. The evidence received since the last final March 1991 rating decision is new and material, and the claim for service connection for a low back disorder is reopened. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017).

3. The criteria for service connection for TBI are not met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

4. The criteria for service connection for benign neoplasm of the ear are not met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor her attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. New and Material Evidence

The Veteran most recently filed a request to reopen her claim for entitlement to service connection for a low back disorder in November 1990.

At the time of the last final denial of the Veteran's claim for service connection for a back disability in March 1991, evidence of record included prior rating decisions, VA treatment records, and VA examinations. 

Evidence associated with the claims file since the previous March 1991 denial includes statements from the Veteran attesting to continuity of symptoms of back pain since service, and references to treatment records documenting degenerative changes of the lumbar spine. 

Based on a review of this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for a low back disorder is reopened.

III. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). 

The Veteran asserts that she suffers from TBI and benign neoplasm of the ear due to her active service. 

The record contains no current diagnosis for or symptoms of TBI or benign neoplasm of the ear. The Veteran has not submitted any statements, private treatment records, or VA treatment records indicating symptoms or any diagnoses. 

In the absence of any current diagnoses of TBI or benign neoplasm of the ear, the Board finds that service connection is not warranted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Veteran asserts that she has TBI and benign neoplasms of the ear. However, the Board finds that the Veteran is a layperson and there is no evidence of record to show that she has the specialized medical education, training, and experience necessary to provide a competent medical opinion as to the nature and etiology of a disability of the nervous system that her assertions warrant service connection. Diagnosing the claimed conditions and providing an etiological opinion is medically complex in nature and not subject to be diagnosed or identified by a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's statements regarding diagnosis and etiology are not competent. 

Therefore, the preponderance of the evidence is against the Veteran's claims for service connection for TBI and benign neoplasm of the ear. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990).  The appeals are denied.


ORDER

Entitlement to service connection for TBI is denied. 

Entitlement to service connection for benign neoplasms of the ear is denied. 


REMAND

Remand is required to obtain private treatment records and VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to VA medical records. 38 C.F.R. § 3.159(c)(2) (2017).  

In an August 2017 correspondence, the Veteran's attorney stated that the Veteran has obtained a June 2009 radiology report that shows mild degenerative changes to her lumbar spine. Further, the Veteran received a radiology report in January 2016 that shows mild spondylotic changes in her lumber spine. The Board finds that these treatment records need to be obtained . 

Further, the Veteran asserts that she has suffered from back problems since service and that she continues to suffer from a back disability. Based on the statements submitted by the Veteran regarding her longstanding back problems and her current allegations of continuity of symptomatology since service, the Board finds that a remand for a VA examination and opinion regarding the claim of service connection for a low back disorder is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Concerning the claim for entitlement to a TDIU, because the Veteran's claims for service connection are being remanded for further development, the result of the development could affect the claim for entitlement to a TDIU, the Board finds that the claim for entitlement to a TDIU is inextricably intertwined with the claim of service connection for a sciatic nerve disorder and whether new and material evidence has been submitted to reopen a claim for service connection for the low back disorder. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As resolution of the claims for service connection could well impact the claim on appeal for entitlement to a TDIU, these issues must be considered together.

Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative.  

2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, specifically the January 2016 radiology report. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3. After the above development has been completed, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any low back disabilities found to be present, and their relationship, if any, to her military service.

Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examinations, and the examiner must indicate that such review occurred.

The VA examiner is asked to address whether it is at least as likely as not (i.e., there is at least a 50% probability) that any back disability had its onset in service or is otherwise medically related to in-service injury or disease.

All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made.

4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the 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 (20142).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs