Citation Nr: 19129554 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 18-06 002A DATE: April 16, 2019 ORDER As new and material evidence has been received, entitlement to service connection for a cervical spine disability is reopened. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for diabetes mellitus, type II, remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed February 1973 rating decision, of which notice was sent to the Veteran in March 1973, denied service connection for a cervical spine disability. The Veteran did not submit a timely notice of disagreement and additional relevant evidence was not received within one year of the notice of the rating decision. 2. New evidence received since the final February 1973 rating decision raises a reasonable possibility of substantiating the service connection claim for a cervical spine disability. CONCLUSIONS OF LAW 1. The February 1973 rating decision, of which notice was sent in March 1973, that denied the service connection claim for a cervical spine disability is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103. 2. Evidence received after the last final rating decision is new and material to the claim for service connection for the cervical spine disability, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to November 1971. The Veteran served in the Republic of Vietnam. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from May 2015 and April 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Agency of Original Jurisdiction (AOJ) issued a March 2017 statement of the case (SOC) readjudicating the issues of service connection for a cervical spine disability, diabetes mellitus, type II, and erectile dysfunction. In a May 2017 letter, the Veteran’s representative indicated that he had not yet received a copy of this SOC and only discovered it on review of the file. The representative noted that it was sent to an old address and his name was misspelled. He requested that a copy of the SOC be sent to him at his correct address. The AOJ acknowledged that the March 2017 SOC had not been sent to the representative’s correct address in a January 2018 deferred rating decision and indicated that a new copy should be mailed. However, no duplicate copy with an updated notice letter is included in the claims file. The Veteran’s representative submitted a February 2018 substantive appeal, via a VA Form 9, indicating that the Veteran wished to appeal all issues, to include the denial of service connection for a cervical spine disability, diabetes mellitus, erectile dysfunction, and TDIU. Subsequently, the AOJ prepared two January 2019 Form 8s and certified all issues to the Board. See January 2019 letter. The filing of a timely substantive appeal, as opposed to a notice of disagreement, is not a jurisdictional bar to the Board’s jurisdiction. Therefore, the Board can waive the untimeliness of a substantive appeal either implicitly or explicitly. Further, the Board cannot raise a timeliness objection if the RO, nonetheless, treated the Veteran’s claim as timely appealed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In this case, it is unclear if the Veteran’s representative received a copy of the March 2017 SOC at his correct address. Nevertheless, even if the February 2018 VA Form 9 was considered untimely, the AOJ acknowledged sending the March 2017 SOC to the wrong address for the Veteran’s representative. See January 2018 deferred rating decision. Further, after the representative submitted the February 2018 substantive appeal, the AOJ prepared a Form 8 for the issues addressed in the March 2017 SOC and certified them to the Board. Thus, the Board finds that any timelines issue has been waived, and the Board has jurisdiction to address these issues. Of note, the February 2018 VA Form 9 was timely as to the issue of a TDIU. The Veteran waived a hearing before the Board in his February 2018 substantive appeal, via a VA Form 9. As new and material evidence has been received, entitlement to service connection for a cervical spine disability is reopened. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that 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. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the AOJ denied the Veteran’s service connection claim for a cervical spine disability in a February 1973 rating decision, of which notice was sent to the Veteran in March 1973. The AOJ found in February 1973 that there was no evidence of a current cervical spine disability. The evidence considered at the time included the Veteran’s application for compensation, service treatment records, and a December 1972 VA examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year from the March 1973 notice. Thus, the February 1973 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the February 1973 denial of the claim includes additional private treatment records. This evidence, specifically the December 2011 CT study report showing the Veteran has a current diagnosis of multilevel degenerative changes in the cervical spine resulting in severe spinal stenosis and bilateral neural foraminal narrowing at C4-C5, C5-C6, and C6-C7, relates to the unestablished element of a current disability in the prior denial, was received after the last final denial, and is new and material. Therefore, the criteria for reopening the claim for service connection for a cervical spine disability are met. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he injured his neck while playing service league football in October 1970. See November 2015 letter and February 2019 correspondence. The Veteran sought treatment during service for neck pain. X-ray studies of the cervical spine were taken in service, which were normal, and he was diagnosed with a cervical strain. See October 1970 service treatment records. Further, the Veteran is currently diagnosed with a cervical spine disability. See December 2011 private treatment records. However, the Veteran has not yet been afforded a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Thus, a remand is warranted.   2. Entitlement to service connection for diabetes mellitus, type II, is remanded. Initially, the Veteran asserted that service connection was warranted for diabetes mellitus, type II. The Veteran was diagnosed during the appellate period with diabetes mellitus, type II. See March 2015 private treatment records. Additionally, it has been shown that the Veteran served within the Republic of Vietnam, which entitles him to presumptive service connection for diabetes mellitus under 38 C.F.R. §§ 3.307 and 3.309. See October 1970 military personnel records, November 2015 letter, and January 2017 deferred rating decision. However, the Veteran contacted the AOJ in February 2017, before his service within the Republic of Vietnam was verified, to cancel his service connection claim for diabetes mellitus because new bloodwork ordered by a new private clinician showed that he did not have diabetes. While this contact was reduced to writing in an internal e-mail, neither the Veteran nor his representative has requested that his claim be withdrawn in writing. Further, it is unclear from the Veteran’s statements if he meant he was previously misdiagnosed with diabetes (which goes to the service connection element of a current diagnosis) or if he meant that his blood work merely showed that the diabetes had improved and resolved (which would go to the rating assigned after service connection was granted). Thus, a remand is warranted to clarify whether the Veteran intended to withdraw his claim for service connection for diabetes and, if he did not intend to do so, what specifically he meant by the statements recorded in the February 2017 internal e-mail. 3. Entitlement to service connection for erectile dysfunction is remanded. In addition, the Veteran contends that he has erectile dysfunction, which is secondary to the diabetes mellitus. There is medical evidence of record that supports this contention. See March 2015 private treatment record. As such, this claim is inextricably intertwined with the service connection claim for the diabetes mellitus, which is being remanded herein for clarification. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, this claim is also remanded. 4. Entitlement to a TDIU is remanded. Finally, the Veteran contends that he is unable to obtain to maintain substantially gainful employment due to the cervical spine disability. The TDIU claim is inextricably intertwined with the service connection claim for the cervical spine disability. See Parker, 7 Vet. App. at 116; Harris, 1 Vet. App. at 183 (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, this claim is remanded. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file, if any. 2. Contact the Veteran and/or his representative and clarify whether the Veteran intended to withdraw his claim for service connection for diabetes mellitus. Inform the Veteran and/or his representative if the claim is to be withdrawn, it must done in writing. 3. If the Veteran wishes to withdraw his claim for service connection for diabetes mellitus, clarify with the Veteran (and/or his representative) whether he wishes to withdraw his claim for service connection for erectile dysfunction. If the claim is not withdrawn, undertake any neceesary development for this claim. If the Veteran does not wish to withdraw his service connection claim for diabetes mellitus and/or erectile dysfunction, clarify what the Veteran meant in the February 2018 communication. Specifically, clarify whether he meant he was previously misdiagnosed with diabetes (indicating no current diagnosis) or whether the diabetes resolved during the appellate period (which would go to the rating assigned after service connection is granted). Invite the Veteran to submit medical evidence to support his explanation or provide the appropriate releases for VA to obtain this information. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the cervical spine disability. All necessary studies, evaluations, and testing should be afforded to the Veteran. All the Veteran’s contentions should be considered. After thoroughly reviewing the claims file, the examiner should address the following: a) Identify each currently diagnosed cervical spine disability, whether diagnosed on examination or during the appellate period. b) Provide an opinion as to whether there is 50 percent probability or greater that the cervical spine disability had onset or was otherwise related to service, to include a neck injury playing service league football in October 1970. See November 2015 letter and February 2019 correspondence. A complete rationale must be provided for any opinion rendered. (Continued on the next page)   5. Readjudicate the claims on appeal. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel