Citation Nr: 20009891 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-57 445 DATE: February 6, 2020 ORDER New and material evidence has been received, and the claim for entitlement to service connection for a low back disability is reopened. To that extent only, the claim is granted. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to a rating in excess of 30 percent for tinea cruris groin area with history of lymphadenitis and biopsy right inguinal lymph node is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected tinea cruris groin area with history of lymphadenitis and biopsy right inguinal lymph node is remanded. FINDINGS OF FACT 1. In a July 1980 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a low back disability. The Veteran submitted a Notice of Disagreement (NOD) in March 1981, but he did not perfect his appeal and the decision became final. 2. The evidence received since the July 1980 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disability. 3. The competent and credible evidence does not demonstrate that the Veteran’s currently diagnosed low back disability had its onset during active duty service, manifested within one year of separation from service, or is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The July 1980 rating decision that denied service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1974 to August 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran has been in receipt of a 100 percent disability rating since April 29, 2004, when he was granted a 100 percent schedular rating for major depressive disorder, the Board finds that the issue of entitlement to TDIU based solely on the Veteran's service-connected tinea cruris groin area disability has been raised by the record and is before the Board pursuant to the holding of Rice v. Shinseki, 22 Vet. App. 447 (2009) and is inextricably intertwined with the matter remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The claims file contains evidence consisting of VA treatment records and VA treatment records that have been associated with it after the statement of the case (SOC) was issued. However, those records are not pertinent to the issue currently on appeal. Therefore, the Board may proceed to the merits of the claim. 38 C.F.R. § 20.1305(c). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Veteran has not 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). New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § § § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence was received to reopen the claim of entitlement to service connection for a low back disability. The Veteran seeks to reopen his low back disability claim. A July 1980 rating decision denied the Veteran’s claim of entitlement to service connection for a low back disability on the basis that the Veteran’s back strain in service was shown to be acute, transitory condition, which cleared with no evidence of residuals. Although the Veteran submitted a NOD, he did not perfect his appeal. The July 1980 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board notes that its task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. Pertinent evidence added to the record since the final July 1980 RO decision includes VA and private treatment records, which demonstrate that the Veteran has been diagnosed with lumbar strain. These records constitute new and material evidence as no evidence of a diagnosis of a low back disability after service was present at the time of the last final July 1980 rating decision. The Board finds that new and material evidence has been submitted. Therefore, the claim of entitlement to service connection for a low back disability is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. See 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307(a)(3), 3.309(a). Under this presumption, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). Id. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert at 53. 2. Entitlement to service connection for a low back disability. The Veteran seeks service connection for a low back disability. The Veteran’s service treatment records (STRs) show that the Veteran was seen in September 1974 for low back pain. The Veteran reported that he fell over a chair and hurt his back. The Veteran reported that his muscles were tight and sore. The Veteran was diagnosed with a muscle strain. The Veteran was instructed to return to duty. In October 1975, the Veteran was seen again for his low back pain. The Veteran reported that he fell over a chair in boot camp and has had low back pain ever since, especially when bending over a lot. There was a slight spasm on the right and a diagnosis of a muscle strain. On his August 1976 separation examination, the Veteran reported recurrent back pain, but on examination, the Veteran’s spine was normal. A December 1976 VA examiner showed that the Veteran’s musculoskeletal system was normal. The earliest post-service medical record which showed that the Veteran reported occasional low back pain is an August 1985 VA treatment record. Beginning in October 1988, private treatment records showed that the Veteran was seen regularly for chronic low back pain. However, it was noted throughout these records that the Veteran injured his back on September 30, 1988, while at work. While lifting heavy sacks of mail, the Veteran’s back started hurting. The Veteran was diagnosed with an acute lumbosacral strain and a possible herniated disc, but a November 1988 impression showed no evidence of a herniated disc. The Veteran worked for the Department of Labor. It was noted in a December 1988 private treatment record that the Department of Labor approved the Veteran’s workman’s compensation claim. While attending physical therapy, some notations indicated a chronic lumbosacral strain, while others indicated chronic low back pain syndrome. In a March 1990 private treatment record, the Veteran’s private physician stated that the Veteran’s back pain syndrome is secondary to myofascial injuries sustained in the work-related accident. Private treatment records showed that the Veteran was continually seen for his back pain through August 1996. VA treatment records show that the Veteran started receiving treatment for his back pain at VA in January 2003. At that time the Veteran stated that he has had back pain for years, after injuries in 1975 and 1988. Private treatment records show that the Veteran underwent an MRI for his back in December 2004. The impression showed multilevel minimal degenerative disc disease (DDD). The Veteran had no disc herniation or extrusion. There was minimal acquired spinal canal stenosis. September 2007 and July 2008 general VA examinations showed that the Veteran’s back was examined. The Veteran had no pain on motion or pain associated with range of motion. Private treatment records from June 2008 to January 2013 continued to report that the cause of the Veteran’s back injury was the September 30, 1988 work accident. Assessments included: lumbar muscle strain, chronic lower back pain syndrome, chronic lower back strain, lumbar muscle strain with residuals, lumbar muscle strain with DDD, lumbar degenerative disease with lumbar radiculopathy, chronic lower back pain with facet dysfunction, and lumbar muscle strain with facet joint dysfunction. A November 2011 VA treatment record showed that the Veteran takes Gabapentin for his low back pain. The Veteran has continued to seek treatment from VA for his low back pain. The evidence shows that the Veteran had low back pain in service. The Veteran was seen by military physicians for low back pain on two occasions. This included an instance of a muscle spasm and a muscle strain. However, the evidence does not show that the Veteran’s lumbar spine DDD manifested within one year of separation from service. Rather, the Veteran was diagnosed with DDD in December 2004, more than 25 years after discharge from active service. Therefore, the Board finds that the Veteran is not entitled to service connection on a presumptive basis. The Board does not find that there is a link between the Veteran’s active duty service and a diagnosed low back disability. The earliest documentation of post service low bad disability was muscle strain, in October 1988. Private treatment records show that the Veteran’s muscle strain and resulting chronic back pain was attributed to his workplace injury on September 30, 1988. This amounts to an intercurrent cause. Additionally, the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board has also considered the Veteran's lay statements. In his NOD, the Veteran contended that is back condition is the result of his service, still exists, and that service connection should be granted. Although the Board recognizes that the Veteran is competent to describe his observable symptoms of a low back disability, he is not competent to opine as to the etiology of his low back disability, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's lay opinion pertaining to the etiology of his low back disability does not constitute competent medical evidence and lack probative value. The Board is cognizant that the Veteran has not been afforded a VA examination specifically for his back and a formal medical nexus opinion has not been obtained. However, the Board finds that such development is not necessary as there is no competent evidence of record indicating that this disability may be related to military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In fact, the only medical opinion evidence of record, from H.S. Pabla, M.D, in February 2012, he opined that with a reasonable degree of medical certainty, the claimant’s medical condition (assessed at time as lower back strain and possible lumbar radiculopathy), is related to a work related incident on September 30, 2008 (described as trauma to the lumbar spine). In sum, the claims file does not contain competent medical evidence of record that the Veteran's low back disability is related to service. Accordingly, as the preponderance of the evidence is against the claim for service connection for a low back disability, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for tinea cruris groin area with history of lymphadenitis and biopsy right inguinal lymph node is remanded. The Veteran contends that the evaluation for his tinea cruris does not accurately reflect the extent to which the condition affects his ability to sustain gainful employment. The Veteran last underwent a VA examination for his tinea cruris in June 2013, almost 7 years ago. Therefore, a more contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). 2. Entitlement to TDIU due to tinea cruris groin area with history of lymphadenitis and biopsy right inguinal lymph node is remanded. As an initial matter, no additional disability compensation may be paid based on an award of TDIU when a total schedular disability rating is already in effect. However, the award of TDIU may satisfy the requirements for the purposes of awarding special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280 (2008). As such, the Board cannot dismiss a TDIU claim as moot, even if a Veteran is already in receipt of a 100 percent disability rating, if the award of TDIU would make the Veteran eligible for SMC. Id.; see Buie v. Shinseki, 24, Vet. App. 242, 248-50 (2011). However, for the purposes of awarding SMC under 38 U.S.C. § 1114 (s), the statute specifically requires (1) a disability rated as totally disabling, and (2) a disability or disabilities independently ratable at 60 percent. 38 U.S.C. § 1114 (s). The regulation further specifies that the disability or disabilities being used to meet the 60 percent requirement must be "separate and distinct" from the disability rated as totally disabling. 38 C.F.R. § 3.350 (i). Thus, the disability being used to fulfill the "single disability rated as totally disabling" requirement cannot also be used to meet the disability or disabilities rated at 60 percent or more requirement. Bradley, 22 Vet. App. at 293-94. As a potential award of a higher rating for service connection for the tinea cruris groin area disability discussed above would affect the TDIU analysis, even if only for the purposes of establishing eligibility for SMC, the issue of entitlement to TDIU is inextricably intertwined with the increased rating claim being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with an appropriate VA examiner, to determine the nature and severity of his service-connected tinea cruris. Provide the VA examiner with the claims file, including a copy of this REMAND, for review. The VA examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s tinea cruris and opine as to its severity. The VA examiner should comment on the extent of any functional impairment caused by the Veteran's tinea cruris, to include in an occupational setting and in performing ordinary, daily activities. The VA examiner should set forth all VA examination findings and provide a complete medical rationale for any conclusions reached. 2. Adjudicate the issue of TDIU, even if only for the purposes of establishing eligibility for SMC. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mahaffey, Associate 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.