Citation Nr: 21066358 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-15 747 DATE: October 29, 2021 ORDER 1. A timely notice of disagreement with the May 2014 rating decision that denied service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) and substance abuse, was received. The appeal to this extent only is granted. 2. The Veteran's petition to reopen the previously denied claim of entitlement to service connection for low back disability is granted. REMANDED 1. The claim of entitlement to service connection for low back disability is remanded. FINDINGS OF FACT 1. A May 20, 2014, rating decision denied entitlement to service connection for an acquired psychiatric disability, to include PTSD and substance abuse. 2. Due to an issue with the Department of Veterans Affairs (VA) fax machine, the notice of disagreement (NOD) that was reportedly sent on May 5, 2015, as signed, was not received or date-stamped incorrectly, and was therefore filed within one year of the notification of the May 20, 2014 decision, the Veteran filed a valid NOD. 3. An unappealed May 2014 rating decision denied service connection for slip disc. 4. The evidence pertaining to the Veteran's low back disability submitted subsequent to the May 2014 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, a timely NOD was filed within one year of the May 2014 rating decision that denied entitlement to service connection for an acquired psychiatric disorder and the NOD is deemed as received in May 2015 and is valid. 2. The May 2014 rating decision that denied service connection for slip disc is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2015 and August 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a June 2021 hearing. A transcript of the hearing is associated with the Veteran's claim file. In December 2017, the Veteran submitted additional evidence in support of his claim for a low back disability without a waiver of Agency of Original Jurisdiction (AOJ) consideration. However, as the claim is being remanded for further development, the AOJ will have an opportunity to review this evidence in the first instance. See 38 C.F.R. § 20.1304. Regarding representation, during the Board hearing, the Veteran reported that he could not get in touch with his representative and therefore believed that he may have passed away. As there is no indication that the Veteran wishes to revoke representation from Douglas Brooks and no documentation confirming the representative's death, the Board will continue to recognize the representative until the Veteran revokes the representation or receives confirmation of his death. 1. A timely notice of disagreement with the May 2014 rating decision that denied service connection for an acquired psychiatric condition, to include PTSD and substance abuse, was received. The appeal to this extent only is granted. Pursuant to 38 U.S.C. § 7105(a), a request for appellate review by the Board of a decision by the RO is initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case has been furnished. 38 C.F.R. § 20.200. A claimant or his representative must file a notice of disagreement with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302 (a). A notice of disagreement must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office. 38 C.F.R. § 20.300. If a notice of disagreement is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.160 (d); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. An untimely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Here, in a May 2014 rating decision, the RO denied the Veteran's claim for service for an acquired psychiatric condition, to include PTSD and substance abuse. The Veteran was notified of this determination by correspondence dated May 21, 2014, and informed the Veteran that if he did not agree with the decision, to download and complete VA Form 21-0958, Notice of Disagreement through the provided website or phone number and that he had one year from the date of the letter to appeal the decision. The letter also enclosed VA Form 4107, "Your Rights to Appeal Our Decision," which explained the Veteran's right to appeal the decision. A fax cover letter dated June 3, 2015, contained a NOD that was signed and dated by the Veteran on May 5, 2015. The fax line receipt date from the VA claims intake center documents that the NOD was received on June 4, 2015. However, a separate fax line receipt date shows the document was received on June 4, 2025. The Veteran's representative submitted an additional correspondence that was signed and dated June 3, 2015. It was documented as submitted on June 4, 2015 on the VA intake center fax line receipt date, however, an additional fax line receipt date shows the document was received on June 3, 2025. In that statement, the Veteran's representative wrote that he was resubmitting the Veteran's NOD which was submitted to the VA intake center on May 5, 2015, but that it was not shown in the Veteran's electronics claims folder. In June 2015, VA notified the Veteran that his NOD was not timely filed as to the May 2014 rating decision within one year of the determination. Thus, the RO explained the May 2014 rating decision became final and new and material evidence was required to reopen the claim. The Board must now determine whether a timely NOD was submitted with respect to the claim. On this point, as explained during the Board hearing, the discrepancy in the receipt date on the fax lines reflecting receipt dates of the NOD and the subsequent correspondence of June 4, 2025 and June 3, 2025, are clearly errors and tends to indicate that there may have been issues with the fax machine. As explained in the Board hearing, given that the NOD was signed and dated May 5, 2015, within one year of the issuance of the May 2014 rating decision and the Veteran's representative statement in the June 2015 statement that the NOD was submitted on May 5, 2015, but it was not in the claims folder, taken in combination, the Board finds that the preponderance of evidence is for the claim. In view of the foregoing, the Board finds that the Veteran submitted a valid, timely NOD to the May 2014 rating decision denying service connection for an acquired psychiatric disability. As such, the appeal as to the timeliness of the NOD is hereby granted. Upon the above determination, a remand of the service connection claims is now warranted pursuant to 38 C.F.R. § 19.9 (c) for the issuance of an SOC of these matters on the merits. Of note, these issues will only be returned to the Board if the Veteran perfects an appeal by the filing of a timely VA Form 9. 2. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for slip disc (low back disability). Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In the present case, the AOJ initially denied the Veteran's claim for service connection for slip disc in a May 2014 rating decision after finding that there was no evidence in the record that the claimed slip disc was related to service. The Veteran did not perfect a timely appeal with respect to the May 2014 rating decision and no other pertinent exception to finality applies. Thus, the May 2014 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104 (a), 20.1103. In March 2016, the Veteran filed a supplemental claim for service connection for a back injury. Evidence received since the May 2014 rating decision includes VA treatment records and lay statements from the Veteran and a former military member who reportedly served with the Veteran. In this regard, a March 2016 VA treatment record reflects that the Veteran reported having lower back pain for decades and 2016 to 2017 VA treatment records document treatment for back disability, to include moderate DDD L4/5 and L5/S1, moderate lateral recess stenosis L4/5, small posterior disc bulge L5/S1 without root compression, status-post lumbar lami-discectomy at L4-5-1. A fellow service member also submitted a statement that he was stationed with the Veteran in Germany and recalled the incident when they were working on the military trucks and the Veteran fell off the truck and injured his back. See August 2017 Buddy Statement, labeled as VA 21-4138 Statement In Support of Claim. The Veteran also reported during the Board hearing that his backpain worsened throughout the years. This evidence is new as it was not of record in May 2014 and is material as it relates to the unestablished fact of whether the Veteran's back symptoms may be related to service, to include based on continuity of symptomatology. Accordingly, for the above reasons, the Board finds that new and material evidence has been received to reopen the Veteran's claim for service connection for a low back disability. REASONS FOR REMAND 1. The claim of entitlement to service connection for low back disability is remanded. The Veteran contends that he is entitled to service connection for a low back disability. He asserts that while working on a big 18-wheeler tractor trailer on a snowy day, he slipped and hit his back on the fender of the truck. See June 2021 hearing transcript. In support of his claim, a fellow service member submitted a statement that he witnessed the Veteran fall and hurt his back while working on trucks. See August 2017 Buddy Statement, labeled as VA 21-4138 Statement In Support of Claim. Additionally, the Veteran reported that his back pain worsened throughout the years. VA treatment records document the Veteran reported having back pain for decades. See March 2016 VA treatment note. The Veteran was diagnosed with degenerative changes of the mid to lower lumbar spine, status post L5 right laminotomy with scar in the epidural space around the right S1 nerve root sleeve and small residual/recurrent posterior disc protrusion, chronic lower back pain with residual right leg radiculopathy, right L5, S1. See February 2017 VA treatment note. To date, the Veteran has not been afforded a VA examination in connection with his claim. Given the Veteran's lay statements and his fellow service member's statement that the Veteran incurred an injury in service, and that such may be related to his current back symptoms, a remand is warranted for a VA examination to fulfill the duty to assist under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that during the Board hearing, the Veteran reported seeking treatment for his back at an Emergency Room (ER) about 20 to 25 years ago and a chiropractor in 2015, but that he could not remember which hospital ER or the name of the chiropractor. On remand, the Veteran may provide the name of these providers if possible. The Board notes that an August 2016 VA treatment record documents the Veteran is on long-term disability through his previous employer, Stock Building Supply. The Veteran reported that he first got short-term disability for three to four months (March to June) and then switched to long-term disability in July. In a January 2017 VA treatment record, the Veteran reported he was in receipt of long-term disability from an injury to his back. However, during the June 2021 Board hearing, the Veteran denied being involved in any accident, to include work-related or car accidents. Therefore, the AOJ should request records from his previous employer, Stock Building Supply, to include workers' compensation documents. The Veteran also reported that he receives Social Security Administration (SSA) disability since 2018 or 2019. Therefore, on remand the AOJ should obtain the SSA records. The matter is REMANDED for the following action: 1. Obtain and associate with the Veterans claims file any and all outstanding VA treatment records relevant to the claim on appeal. The last VA treatment of record is dated February 2017. 2. Obtain from the SSA any determination(s) pertinent to the Veteran's claim(s) for SSA benefits, as well as any medical records relied upon concerning the claim(s). Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the file. 3. Request information from the Veteran regarding the workers' compensation records and treatment pertaining to his back injury while employed at Stock Building Supply. Document all requests(s) for information, as well as responses in the claims file. 4. Provide the Veteran an opportunity to identify and/or submit any outstanding private treatment records relevant to his claim, to include treatment in the emergency room about 20 to 25 years ago and the private chiropractor on Liburn Street in Norcross, Georgia for treatment of his back since 2015, as reported by the Veteran during the June 2021 Board hearing and as noted in the 2016 VA treatment records. After securing the necessary releases, attempt to obtain and associate any identified treatment records with the claims file. 5. Provide the Veteran and his representative with an SOC addressing the claim for service connection for an acquired psychiatric disability, to include PTSD and substance abuse. The Veteran is reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 6. After completing the above, schedule the Veteran for a lumbar spine examination with an appropriate medical professional. All indicated tests and studies must be conducted or arranged. The Veteran's claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should respond to the following: (a) The examiner should clearly identify any and all low back disability disabilities, pathology, manifestations, etc. (b) Regarding each low back disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that such had an onset during or is otherwise related to service. The examiner must consider the lay testimony of the Veteran and the manner in which he says he sustained his low back injury in service. See June 2021 Board hearing transcript. The Veteran is competent to relate the details of in-service injuries. The examiner is asked to address the Veteran's complaints of continued and worsening back problems since the accident. See June 2021 Board hearing. (Continued on the next page) The examiner should also consider and address the post-service VA treatment records, discussed above, to include the Veteran's report that he experienced low back pain for decades. See March 2016 VA treatment note. A complete rationale for any opinion offered should be provided. The examiner is advised that the Veteran is competent to report history and symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, he or she must provide a rationale for doing so. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.