Citation Nr: 19123763 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-52 892 DATE: March 29, 2019 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a back disorder, claimed as a broken back, is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a right hip disorder, claimed as right hip replacement, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from June 1976 to June 1979. 2. A final September 2014 rating decision denied service connection for back and right hip disorders; evidence received since that time does not raise a reasonable possibility of substantiating the claims. 3. The Veteran is not currently service-connected for any disabilities. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a back disorder, claimed as a broken back. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right hip disorder, claimed as right hip replacement. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence First, the Veteran is seeking to reopen service connection claims for back and right hip disorders. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, these claims were denied in a September 2014 rating decision. The Veteran did not appeal these decisions or submit documentation constituting new and material evidence within the one-year appeal period, such that the September 2014 rating decision became final. The Veteran subsequently requested to reopen the claims in May 2016. As such, the Board must now determine whether new and material evidence has been submitted since the final September 2014 rating decision sufficient for the claims’ reopening. Briefly, the Board acknowledges that the back claim was denied in a July 2016 rating decision, and the Veteran submitted a new claim the following month with additional evidence in support thereof. As such, the July 2016 rating decision did not become final and is not pertinent to the Board’s new and material analysis as set forth below. Rather, evidence considered at the time of the final September 2014 rating decision included the Veteran’s service personnel and treatment records (SPRs and STRs), private treatment records, limited Social Security Administration (SSA) records, two February 2014 lay statements, and April 2014 VA treatment records. Evidence added to the claims file since that time includes: additional STRs; a May 2016 lay statement; additional private treatment and SSA records; VA treatment records through August 2017; and a December 2017 representative’s statement. This evidence is new as it was not of record at the time of the final September 2014 rating decision. However, the new evidence does not raise a reasonable possibility of substantiating the claims. To that end, the September 2014 rating decision denied service connection upon the Regional Office’s (RO’s) determination that the evidence did not establish a nexus between the claimed disorders and military service. The newly submitted evidence similarly fails in this respect, to include the absence of evidence speaking to in-service back or right hip treatment, an onset of the claimed disorders within one year of separation, or of a competent medical opinion on these points. Thus, the new evidence is not material. In offering this conclusion, the Board does not disregard that additional STRs have been added to the claims file since the September 2014 denial. See 38 C.F.R. § 3.156(c). The mere submission of these documents is insufficient to warrant the reopening of these claims, as they do not speak to the unestablished element of service connection—i.e., a causal nexus—as set forth above. Further, the Board has considered the Veteran’s May 2016 contention, and his representative’s December 2017 statement, that the claimed disorders are related to service. However, he lacks the medical expertise to provide a competent etiological opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, his opinion does not qualify as material evidence sufficient for the reopening of these claims. Additionally, the Board acknowledges that the new evidence contains a May 2016 lay statement reporting an in-service training injury. However, review of the record indicates that this theory of entitlement was previously considered by the RO at the time of the final September 2014 rating decision. As such, this statement does not qualify as material evidence sufficient for the reopening of these claims. In the absence of evidence that is both new and material, the appeals seeking to reopen back and right hip disorders are hereby denied. TDIU The Veteran is additionally pursuing entitlement to a TDIU at this time. Generally, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating for compensation may be assigned when a veteran receives less than a total disability rating (i.e., less than a 100 percent combined disability rating) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Here, the Board notes that service connection is not in effect for any disabilities. As such, the Veteran lacks legal grounds to establish entitlement to a TDIU under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Id. As service connection is not in effect for any disability, entitlement to a TDIU is not applicable under the law. Therefore, the Board finds that entitlement to a TDIU is not warranted and the appeal must be denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel