Citation Nr: 21064819 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-14 266A DATE: October 21, 2021 ORDER New and material evidence having been received, the claim for service connection for a cervical spine disability is reopened, and to that extent only, the claim is granted. New and material evidence having been received, the claim for service connection for a low back disability is reopened, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to a rating in excess of 70 percent for a psychiatric disability is remanded. Entitlement to a total rating based on individual unemployability due to a service-connected disability or disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A February 2014 rating decision denied applications to reopen previously denied claims of entitlement to service connection for cervical spine and low back disabilities, and VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, that decision became final. 2. Evidence received since the February 2014 rating decision is neither cumulative nor redundant, and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claims of entitlement to service connection for cervical spine and low back disabilities. CONCLUSIONS OF LAW 1. The February 2014 rating decision that denied the application to reopen a claim for service connection for a cervical spine disability is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.110. 2. The February 2014 rating decision that denied the application to reopen a claim for service connection for a low back disability is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.110. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a cervical spine disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). To establish service connection for a current disability, a Veteran must show the existence of a present disability; incurrence or aggravation of a disease or injury in service; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran essentially contends that he injured the cervical spine and low back when he fell from a ladder during service. Post-service treatment records indicate treatment for cervical spine and low back disabilities. A February 2014 rating decision denied the Veteran's most recent applications to reopen previously denied claims for service connection for a cervical spine and low back disability. In that decision, the Agency of Original Jurisdiction (AOJ) indicated that the evidence of record did not indicate that the claimed disabilities were related to service. The Veteran did not appeal the decision in a timely manner or submit new and material evidence within one year, and it became final. Briefly reviewing the evidence submitted since the February 2014 rating decision, in a May 2016 private treatment record, a private examiner diagnosed end-stage cervical and lumbar spondylosis. Based on the Veteran's description of an injury in service, the examiner opined that the Veteran's disabilities were more likely than not related to service. The May 2016 private treatment record is new, because it was not before VA at the time of the February 2014 rating decision. When presuming the credibility of the evaluation, as is required only when determining whether to reopen previously denied claims for service connection, it is also material, because it suggests relationships between a current cervical spine and low back disabilities, and the Veteran's service, which was not established at the time of the most recent final denial. New and material evidence having been received, the claims for service connection for cervical spine and low back disabilities are reopened. To that extent only, the claims are allowed. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. The Board cannot make a fully-informed decision on the issues of service connection for cervical spine and low back disabilities, because no VA examiner has opined whether the disabilties are related to service. Remand is necessary to schedule an examination. At a February 2021 Board hearing, the Veteran indicated that he had received treatment at the St. Petersburg VA Medical Center in 1986 for a back disability. The record does not contain any records regarding VA treatment dated prior to 1997. Additionally, the VA treatment records currently in evidence contain notations indicating that a VA employee scanned medical records into a VA imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. 3. Entitlement to a rating in excess of 70 percent for a psychiatric disability is remanded. The Veteran contends that a psychiatric disability has increased in severity since the Veteran was last examined by VA in July 2015. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the psychiatric disability. 4. Entitlement to TDIU is remanded. During the pendency of the appeal, the Veteran filed a claim of entitlement to TDIU. In a July 2019 rating decision included in the record of evidence. the AOJ fully granted the Veteran's claim, awarding both entitlement to TDIU and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. However, the decision apparently was not promulgated, because neither the Veteran nor the Veteran's representative received a copy of the letter. Moreover, in December 2019 and December 2020 notification letters, the Veteran was advised that he was being compensated at the monetary rate for those with a 70 percent disability rating rather than those who have established entitlement to TDIU. If the AOJ has already fully granted the claim for TDIU, as suggested by the July 2019 rating decision on file, the issue of TDIU need not be readjudicated. However, if the inclusion of the July 2019 rating decision was erroneous and the issue is still undecided, because the Veteran claims that he is unable to work due to a service-connected psychiatric disability, the Board has jurisdiction over the issue of TDIU even if the AOJ did not issue any decision regarding the claim filed with the AOJ. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, if entitlement to TDIU has yet to be established, the issue is inextricably intertwined with the other issues on appeal and, therefore, should be remanded pending resolution of those issues. The matters are REMANDED for the following action: 1. Determine whether the Veteran has been awarded entitlement to TDIU, as suggested by the July 2019 rating decision included in the record of evidence. Explain the finding by memorandum in the file. If the July 2019 rating decision was not erroneous, promulgate that decision to the Veteran and representative. 2. Obtain all outstanding VA treatment records. Specifically, obtain any VA records dated prior to 1997; the most recent VA treatment records not included in the record of evidence; and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated July 6, 2017; November 10, 2016; August 25, 2016; and July 6, 2015. 3. Schedule the Veteran for a VA orthopedic examination with an orthopedist, to determine the etiology of the claimed cervical spine and low back disabilities. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records; the post-service treatment records, to include those indicating treatment for cervical spine and low back disabilities, and the May 2016 private treatment record, indicating a relationship between the service-connected cervical spine and low back disabilities, and the Veteran's claimed in-service accident; and the Veteran's lay statements. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, an interview with the Veteran, and the a review of the claims file, the examiner is asked to also provide the following opinions: (a.) Opine whether it is least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disability is related to service or any incident of service, to include the claimed in-service incident during which the Veteran fell from a ladder. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any low back disability is related to service or any incident of service, to include the claimed in-service incident during which the Veteran fell from a ladder. 4. Schedule the Veteran for an examination by a VA psychiatrist or psychologist to determine the current severity of a service-connected psychiatric disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should elicit information regarding the severity, frequency, and duration of symptoms. The examiner should identify the symptoms due to the psychiatric disability and should opine as to the levels of social and occupational impairment due to the service-connected psychiatric disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure of follow a substantially gainful occupation due to the service-connected psychiatric disability. If the Veteran is felt capable of work despite the service-connected psychiatric disability, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disability. 5. Then, readjudicate the issues on appeal, including, if necessary, the claim of entitlement to TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.