Citation Nr: 20002228 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 09-26 811 DATE: January 10, 2020 ORDER The matter of whether new and material evidence has been received to reopen the claim for service connection for a low back disorder is dismissed. New and material evidence having been received, the claim to reopen service connection for a mental or mood disorder is granted. REMANDED Entitlement to service connection for a mental or mood disorder is remanded. FINDINGS OF FACT 1. Service connection for degenerative arthritis of the lumbar spine, also claimed as back injury and spondylosis, was granted by way of an October 2019 rating decision. 2. A January 2017 Board decision denied service connection for a mental/mood disorder on the basis that there was no medical evidence showing a mental or mood disorder. 3. The evidence received since the January 2017 Board decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the mental disorder claim. CONCLUSIONS OF LAW 1. There is no error of fact or law remaining for the Board’s consideration related to the appeal of whether new and material evidence was received to reopen the claim for service connection for a low back disorder. 38 U.S.C. § 7105 (2012). 2. New and material evidence was received to reopen the claim of entitlement to service connection for a mental or mood disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from October 1975 to March 1978. The matters on appeal come before the Board via a longstanding procedural history, which the Board will summarize for clarity in each section, below. New and Material Evidence – Low Back Disorder Initially, the Board observes that there are recent records within the claims file concerning VA’s production of the curriculum vitae of the February 2018 VA examiner in response to a Privacy Act request. As this pertains to the appeal of the low back disability claim, and, as noted below, that claim has been granted in full, the Privacy Act request has become moot. The Veteran was originally denied service connection for a back condition, claimed as spondylosis, in April 1978. In March 2008, the Veteran filed a claim to reopen the previously decided low back issue. This claim was denied by way of an August 2008 rating decision and the Veteran filed a notice of disagreement and subsequently perfected an appeal of the issue. Following several years of evidentiary development, in January 2017, the Board issued a decision that denied the claim to reopen the issue of service connection for a low back disorder. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In October 2018, the Court issued a Memorandum Decision, which vacated the Board’s January 2017 decision as to whether new and material evidence had been received to reopen the claim for service connection for a low back disorder. The issue, therefore, has returned to the Board for readjudication. However, in October 2019, the RO issued a rating decision awarding service connection for degenerative arthritis of the lumbar spine, claimed as back injury and spondylosis. An initial 20 percent rating was assigned, effective May 31, 2017. Given that service connection has been awarded for the low back disability, the Board has no errors of fact or law before it. The only potential remaining matters are the appropriate rating and effective date for the low back disability, which are separate appeals that must be initiated by way timely disagreement with the October 2019 rating decision. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As there is no remaining potential error of fact or law related to the claim of whether new and material evidence was received to reopen entitlement to service connection for a low back disorder, dismissal is appropriate. The appeal as to this issue is dismissed. New and Material Evidence – Mental/Mood Disorder The Veteran was originally denied service connection for a mental and mood disorder by way of an April 2009 rating decision. At that time, the RO reviewed the Veteran’s service personnel and medical records as well as VA treatment records from July 2002 through December 2008 and found that there was no evidence showing a mental or mood disorder associated with the Veteran’s active service and also explaining that because the low back disorder was not service connected, there was no basis to find that the Veteran experienced a mental or mood disorder secondary to the low back disorder. The Veteran appealed this decision and in January 2017, the Board denied the claim on the same basis. The Veteran appealed the Board’s decision to the Court and, in October 2018, the Court issued a Memorandum Decision, which affirmed the Board’s decision as to the mental/mood disorder claim. In May 2017, after the Board’s decision and before the Court’s decision, the Veteran filed a new claim for service connection for the mental disorder. As the January 2017 Board decision was affirmed, this is a matter of whether new and material evidence was received to reopen the mental disorder claim. In March 2018, the RO issued a rating decision declining to reopen the claim. The Veteran filed a notice of disagreement in October 2018 and, in October 2019, a statement of the case was issued related to the mental/mood disorder claim. The Veteran perfected that appeal by way of a December 2019 VA Form 9. Since the January 2017 Board decision, the Veteran has continued to claim his mood is impacted by the pain associated with this low back, which is now service connected. VA treatment records also show him reporting his back pain impacting both his mood and his ability to sleep. The award of service connection for the low back disability coupled with the evidence of record indeed amounts to evidence both new and material to the claim. The previously denied claim for service connection for a mental and mood disorder is, therefore, reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran claims to have a mental disorder that has been caused or is being aggravated by his now service-connected low back disorder. On remand, the RO should afford the Veteran a VA examination to determine the nature of any mental disorder or mood disorder present during the pendency of the current claim, which was filed in May 2017. If a disability is diagnosed, also obtain an opinion regarding whether the Veteran’s mental disability is at least as likely as not proximately due to or aggravated beyond its natural progression by his now service-connected low back disability, particularly the chronic pain associated with that disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any mental or mood disorder present during the pendency of this claim. The examiner must review the claims file, to include the VA treatment records that show the Veteran reporting that his chronic low back pain impacts his mood and ability to sleep. The examiner should also account for the Veteran’s lay statements, both within the claims file and any statements made to the examiner at the time of the examination. The examiner is asked to opine whether any mental or mood disorder present during the pendency of this claim (since May 2017) is at least as likely as not (1) proximately due to the Veteran’s service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by the Veteran’s service-connected lumbar spine disability. If not, the examiner should also address whether it is at least as likely as not related to an in-service injury or disease. The examination report should include reasons for any opinion expressed. Again, the examiner’s rationale should address the Veteran’s report in the VA clinical records that the chronic pain associated with this lumbar spine disability impacts his mood and his ability to sleep. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.