Citation Nr: 20028158 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 17-06 720 DATE: April 22, 2020 ORDER The August 2015 Notice of Disagreement (NOD) to the September 2014 rating was valid with respect to the issue of entitlement to service connection for lumbar spine disability. REMANDED Entitlement to service connection for lumbar spine disability is remanded. FINDING OF FACT The Veteran’s August 2015 statement expressed disagreement with the September 2014 rating decision, was in writing, was filed on a valid form with the Regional Office within one year of the date of mailing of notice of the rating decision, and expressed disagreement with the September 2014 rating decision. CONCLUSION OF LAW The Veteran’s NOD received in August 2015 constitutes a valid NOD to a September 2014 rating decision with respect to the issue of entitlement to service connection for a lumbar spine disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101(c), 20.200, 20.201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from July 1978 to February 1981, and from February 1981 to July 1983, for which he received a bad conduct discharge, which has been determined to be honorable for VA purposes. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied reopening the Veteran’s claim for service connection for lumbar spine disability. The Veteran appealed that decision. In an October 2019 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) and vacated the Board’s December 2018 decision. The case was returned to the Board for compliance with the terms of the JMPR. Whether the August 2015 NOD to the September 2014 rating decision was valid with respect to the issue of entitlement to service connection for lumbar spine disability. A NOD is a written communication from a claimant or representative, expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. There are six elements for a valid NOD: it must (1) express disagreement with a specific determination of the agency of original jurisdiction (AOJ); (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; (5) be filed by the claimant or the claimant’s authorized representative; and (6) express a desire for Board review. Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002); 38 C.F.R. § 20.201. The actual wording of the communication and the context in which it was written determines whether a written communication constitutes a valid NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). A NOD with an RO determination must be filed within one year from the date that notice of the determination was mailed. 38 C.F.R. § 20.302(a). If a NOD is not filed within the one-year period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely filed NOD is a jurisdictional bar to appellate consideration and is a matter that may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). A September 2014 RO decision denied service connection for lumbar spine disability. The RO notified the Veteran of such in a September 2014 letter and advised him of his procedural and appellate rights. He was informed that he had one year from the date of the notice letter to appeal the September 2014 RO decision. In an August 2015 NOD, the Veteran cited the September 4, 2014 notification letter and indicated that “the Regional Office didn’t evaluate my complete service of Merits, nor thoroughly review my 201 File, or consider ‘Character of Service.’” Of note, the RO denied the Veteran’s claim of entitlement to service connection for lumbar spine disability in its September 2014 decision on the basis that the injuries to his lumbar spine were noted in his service treatment records (STRs) during the period of service that was at that time identified as not qualify him for benefits. Subsequently, an October 23, 2015 Report of General Information shows that a call was placed to the Veteran, during which the VA caller confirmed with the Veteran the issues on appeal and explained the appeals process. The issues listed on that form include service connection for lumbar strain. It was noted that an Informal Telephone Conference Form accompanied the Report of General Information. However, such has not been associated with the file. An August 2016 Appeal Election Form references an August 17, 2015 NOD filed as disagreement with an October 1, 2014 decision. The record does not contain an October 1, 2014 decision or any letters dated October 1, 2014. The only rating decision in 2014 was the September 1, 2014 rating decision denying entitlement to service connection for lumbar spine disability. He timely (in August 2015) disagreed with that determination, and in January 2017 timely submitted a VA Form 9 (substantive appeal) in response to a December 2016 statement of the case (SOC). The adjudicative actions listed in the SOC showed that the claim was considered on September 2, 2014, and that the Veteran submitted his NOD on August 17, 2015. Timeliness of the August 2015 NOD (as to the September 2014 RO decision) is not in dispute; it was received within one year following notice of the decision. It is also not in dispute that it was in writing, and was by a person authorized to submit it. What is in dispute is whether the NOD addressed a determination made in the September 2014 rating decision. As noted above, the Veteran expressed disagreement specifically with September 4, 2014 rating decision, which included the issues of entitlement to service connection for lumbar spine disability. What remains for consideration is whether the August 2015 filing expressed a desire for Board review. As the communication was explicitly identified as a NOD with the September 2014 rating decision, and indicated that the Veteran was continuing his disagreement, it clearly expressed a desire for Board review. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos, supra. Note, all communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that this requirement is also met. Accordingly, the Board concludes that the written communication received in August 2015 NOD is a valid NOD with the September 2014 rating decision denying entitlement to service connection for lumbar spine disability. Further action in the matter is addressed in the REMAND below. REASONS FOR REMAND Entitlement to service connection for lumbar spine disability is remanded. The Veteran contends that his lumbar spine disability resulted from his injuries during service and from the strains of service, including heavy lifting of weapons. See NOD (December 2016). To ensure that VA has met its duty to assist, remand is necessary to obtain outstanding treatment records and to afford a VA examination. 38 C.F.R. § 3.159(c). First, evidence indicates that there may be outstanding relevant VA and private treatment records. VA treatment records, including a May 2017 VA treatment note, indicate that the Veteran had two lumbar medial branch blocks and lumbar radiofrequency ablation done in 2015. VA treatment records refer to repeated courses of physical therapy as well as a course of traction and suggest that acupuncture was previously helpful to him outside VA. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Also, although some relevant private treatment records were submitted from the Veteran, these records do not appear complete as no records of acupuncture have been obtained. As such, complete records should be requested on remand. Second, a VA examination is necessary to adjudicate the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has a current diagnosis of degenerative joint disease of the lumbar spine and lumbar lordosis. See Medical Treatment Record - Non-Government Facility (April 2016); CAPRI (December 2019). The Veteran’s service treatment records (STRs) show reports of back pain on two occasions in August 1981 and in September 1981. Recurrent back pain is noted in an April 1983 Report of Medical History. Post-service, lower back pain is indicated in September 1988, and then a June 2001 x-ray showed L5-S1 bulging and muscle spasm. The Veteran sustained an injury in January 2013, resulting in low back pain. Chronic low back pain was noted in January 2014. A December 2016 VA treatment note provides that the Veteran injured his back “in the military while lifting heavy equipment.” Collectively, this evidence suggests that possibly injury, or multiple injuries, and strains occurred in service. Given the low bar set to trigger VA’s duty to obtain a VA examination, the Board finds that the Veteran’s lay statements, coupled with his STRs and post-service treatment records, are enough to meet that low bar. Id. Therefore, the Veteran should be afforded an opportunity to present for VA examination to determine the nature of his current lumbar spine disability, and whether any such condition is related to in-service injury or disease. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records of the two lumbar medial branch blocks and lumbar radiofrequency ablation in 2015; physical therapy courses, a course of traction and records from December 2019 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for low back symptoms since service discharge to include acupuncture treatment. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current lumbar spine disability. The examiner must opine as to each disorder shown whether it is at least as likely as not related to an in-service injury, event, or disease, including documented in-service complaints and findings for recurrent low back pain. For arthritis, the examiner should opine whether it at least as likely as not (a) began during active service, (b) manifested within one year after discharge from service, or (c) was noted during service with continuity of the same symptomatology since service. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C. A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.