Citation Nr: 20003091 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 16-57 656 DATE: January 15, 2020 ORDER The Veteran’s application to reopen a claim of service connection for low back pain is granted. REMANDED 1. The issue of service connection for a lumbar spine disorder with lower extremity radiculopathy is remanded. 2. The issue of a rating of more than 30 percent for posttraumatic stress disorder (PTSD) is remanded. 3. The issue of a rating of more than 10 percent for residuals of a left (minor) shoulder injury with bursitis is remanded. 4. The issue of whether new and material evidence has been received to reopen a claim of service connection for tinnitus and, if so, whether service connection is warranted, is remanded. 5. The issue of whether new and material evidence has been received to reopen a claim of service connection for a sinus disorder with allergies and, if so, whether service connection is warranted, is remanded. 6. The issue of whether new and material evidence has been received to reopen a claim of service connection for sleep apnea and, if so, whether service connection is warranted, is remanded. 7. The issue of a rating of more than 10 percent for gastroesophageal reflux disease (GERD) is remanded. 8. The issue of whether a reduction of the Veteran’s bilateral flat feet rating from 30 percent to 10 percent effective July 21, 2017, was proper, is remanded. 9. The issue of a rating of more than 30 percent for tension headaches is remanded. FINDINGS OF FACT 1. In February 2009, the Veteran’s original claim of entitlement to service connection for low back pain was denied. The Veteran was informed in writing of the adverse determination and his appellate rights and did not submit a notice of disagreement (NOD) with the decision; nor was new and material evidence received within one year of the decision. 2. The additional documentation submitted since the February 2009 decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a lumbar spine disorder. CONCLUSIONS OF LAW 1. The February 2009 decision denying service connection for low back pain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a lumbar spine disorder has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from August 1999 to August 2003. He served in Southwest Asia and his military decorations include the Combat Action Ribbon. The veteran was scheduled to appear for a videoconference hearing before a Veterans Law Judge on August 21, 2019. However, in July 2019, the Veteran, withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). Whether new and material evidence has been presented to reopen a claim of service connection for low back pain. Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran’s claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA’s control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran’s claim without regard to the RO’s determination in order to establish the Board’s jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In February 2009, VA denied service connection for low back pain because pain alone did not constitute a disability for which service connection could be granted and the Veteran had no other lumbar spine disorder. The Veteran did not file a notice of disagreement as to the denial and new and material evidence was not received within one year of the decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). A May 2010 rating decision denied the Veteran’s claim to reopen the matter of entitlement to service connection for low back pain. VA treatment records were received in November 2010, which showed that the Veteran underwent surgery for herniated nucleus pulposus of the lumbosacral spine. This evidence is both new and material as to the matter of entitlement to service connection for a low back disability because it relates directly to the reason that the Veteran’s claim was originally denied in February 2009; namely, a current diagnosis of a low back disability. This evidence thus raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a low back disability when considered with the previous evidence of record. Accordingly, new and material evidence was received within one year of the May 2010 rating decision; as such, this decision is not final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Therefore, the appellant’s claim is granted to that extent. REASONS FOR REMAND 1. The issue of service connection for a lumbar spine disorder with lower extremity radiculopathy is remanded. The July 2013 VA medical opinion referenced a July 2003 separation examination. This examination does not appear to be of record. The record only contains an undated report of medical assessment which indicates that it was conducted for separation. Remand is necessary to attempt to obtain the July 2003 separation examination. Any other missing service treatment records (STRs) and service personnel records (SPRs) should also be associated with the file. Remand is also necessary to obtain a new VA medical opinion. The negative July 2013 opinion is based solely on the lack of treatment for several years after service separation. However, continuity of treatment is not required for service connection and a disorder diagnosed after service may be service connection. See 38 C.F.R. § 3.304(d). 2. The issue of a rating of more than 30 percent for PTSD is remanded. 3. The issue of a rating of more than 10 percent for residuals of a left (minor) shoulder injury with bursitis is remanded. 4. The issue of whether new and material evidence has been received to reopen a claim of service connection for tinnitus and, if so, whether service connection is warranted, is remanded. 5. The issue of whether new and material evidence has been received to reopen a claim of service connection for a sinus disorder with allergies and, if so, whether service connection is warranted, is remanded. 6. The issue of whether new and material evidence has been received to reopen a claim of service connection for sleep apnea and, if so, whether service connection is warranted, is remanded. 7. The issue of a rating of more than 10 percent for GERD is remanded. 8. The issue of whether a reduction of the Veteran’s bilateral flat feet rating from 30 percent to 10 percent effective July 21, 2017, was proper, is remanded. 9. The issue of a rating of more than 30 percent for tension headaches is remanded. In August 2015, July 2016, September 2017, and March 2018, the Veteran submitted notices of disagreement (NODs) with the 8 issues listed above. Statements of the case (SOCs) addressing the NODs have not been issued to him. Therefore, remand is necessary. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matters are REMANDED for the following action: 1. Issue an SOC to the Veteran and his accredited representative which addresses the issues of: (1) a rating of more than 30 percent for PTSD; (2) a rating of more than 10 percent for residuals of a left (minor) shoulder injury with bursitis; (3) whether new and material evidence has been received to reopen a claim of service connection for tinnitus and, if so, whether service connection is warranted; (4) whether new and material evidence has been received to reopen a claim of service connection for a sinus disorder with allergies and, if so, whether service connection is warranted; (5) whether new and material evidence has been received to reopen a claim of service connection for sleep apnea and, if so, whether service connection is warranted; (6) a rating of more than 10 percent for GERD; (7) whether a reduction of the Veteran’s bilateral flat feet rating from 30 percent to 10 percent effective July 21, 2017, was proper; and (8) a rating of more than 30 percent for tension headaches. The Veteran should be given the appropriate opportunity to respond to the SOC. 2. Associate with the record any STRs and SPRs not of record, including a July 2003 separation examination referenced in the July 2013 VA medical opinion. 3. Schedule the Veteran for VA back and peripheral nerves examinations to obtain an opinion as to the nature and etiology of his lumbar spine disorders with lower extremity radiculopathy. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address whether each identified lumbar spine disorder was caused by any in-service event, injury, disease, or disorder, or in any way originated during service. Katherine K. Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.