Citation Nr: 21071929 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-35 415 DATE: December 1, 2021 ORDER The appeal to reopen the claim of entitlement to service connection for a thoracolumbar spine disability is granted. Entitlement to a disability rating greater than 10 percent for service-connected hypothermia is denied. REMAND Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. The appeal to reopen the claim of entitlement to service connection for a kidney disability is remanded. The appeal to reopen the claim of entitlement to service connection for a gastrointestinal disability is remanded. The appeal to reopen the claim of entitlement to service connection for a right thigh disability is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file since the January 2014 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for a thoracolumbar spine disability. 2. The Veteran's service-connected hypothermia residuals manifest only arthralgia or other pain, numbness, or cold sensitivity. CONCLUSIONS OF LAW 1. The criteria for reopening of the claim for entitlement to service connection for a thoracolumbar spine disability are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 19.20, 19.21, 19.52(a). 2. The criteria for entitlement to a disability rating greater than 10 percent for service-connected hypothermia residuals are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7122. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Tennessee Army National Guard from November 1979 to September 1983 with active duty for training (ACDUTRA) from January 1980 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March and June 2015 and Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A Board hearing was conducted via the virtual hearing process. A transcript of this hearing is contained within the electronic claims file. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). New and Material Evidence VA may reopen a claim that previously has been 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). New evidence is evidence not previously submitted to agency decision makers, and 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). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 11718 (2010). Furthermore, evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. Lay testimony "should not be rejected as not being material solely because [a claimant] is a lay person offering observations as to [a particular] condition...." Id. at 122 (citing Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009)). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "Justus does not require the Secretary to consider the patently incredible to be credible. Moreover, any presumption of credibility required by Justus... is inapplicable... when the claim is adjudicated de novo by evaluating both the weight and credibility of all the evidence of record." Duran v. Brown, 7 Vet. App. 216, 22021 (1994). A new etiological theory of entitlement, on its own, cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b); however, if VA receives evidence supporting a new theory of entitlement that constitutes new and material evidence, then it must reopen the claim under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 133637 (Fed. Cir. 2008). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (holding that the "RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C. §] 7104."). The Board should proceed on the merits only where it has secured a waiver from the claimant or it determines that proceeding would not prejudice him/her. Id. at 399400. At the time of the January 2014 final denial, the evidence of record consisted of the Veteran's service treatment records (STRs), private treatment records from October 2002 to October 2012, personal statements from the Veteran, VA medical center (VAMC) records through January 2014, and various VA examinations. The evidence of record since then consists of updated VAMC records, a statement from the Veteran's brother-in-lawR.S., private treatment records, and the Veteran's hearing testimony. When the agency of original jurisdiction (AOJ) originally denied the Veteran's back claim, it did so on the basis that there was no medical evidence linking the Veteran's current back disability to service. The Veteran's only articulated theory of entitlement at that point was that she had "cold exposure in 1982 and has back pain that she relates to this. She doesn't recall any specific traumatic incident to her back, nor is there evidence of such. She now has back pain with activity and pain that radiates down her leg." Jan. 18, 2014, Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). Currently, however, the Veteran argues that her back disability is due to an in-service injury she sustained and reported to her then sergeant. July 6, 2021, Hearing Transcript (Tr.) at 34. An August 2016 statement from R.S. indicates that the Veteran told him about this injury as well. The Board construes R.S.'s statement and the Veteran's testimony as a new etiological theory of entitlement for her back claim, and the statements themselves serve as evidence to support that new theory. Recall that the Veteran previously alleged to the VA doctor that it was her belief that her back injury was due to cold exposure; now, however, she adopts injuring her back in service. See Boggs, 520 F.3d at 133637. Because the credibility of the evidence at this stage is presumed, see Justus, 3 Vet. App. at 513, the Board finds that this evidence is new and material as it passes the "low threshold" that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 11718. The January 2014 VA opinion for the Veteran's back claim provided an opinion only with respect to allegation of cold weather exposure, and the examiner failed to address the numerous reports of back pain throughout the Veteran's STRs. Thus, the Board finds that reopening is warranted. See 38 C.F.R. § 3.156(a). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Id. Cold injury residuals are compensated under 38 C.F.R. § 4.104, DC 7122. Arthralgia or other pain, numbness, or cold sensitivity warrants a 10 percent rating. A 20 percent rating requires arthralgia or other pain, numbness, or cold sensitivity plus one of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, anhydrosis, x-ray abnormalities (osteoporosis, subarticular punched-out lesions, or osteoarthritis), atrophy or fibrosis of the affected musculature, flexion or extension deformity of distal joints, volar fat pad loss in fingers or toes, avascular necrosis of bone, chronic ulceration, carpal or tarsal tunnel syndrome. A 30 percent requires the same but with two of the following symptoms just listed. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A January 2014 Rating Decision awarded the Veteran service connection for her residuals of hypothermia (arthralgia and cold sensitivity); she was assigned a 10 percent rating effective March 8, 2013. The Veteran filed the instant increase rating claim in February 2015. The March 2015 decision on appeal denied her request, and she timely sought review. A February 2014 VAMC entry notes that the Veteran has "extreme cold sensitivity." A March 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicates that the Veteran suffers from arthralgia or other pain in her whole body but worse in her lower extremities. There were no x-rays or other diagnostic testing performed/reviewed. There were no other complications or pertinent physical findings, and the Veteran's ability to work was not impacted. A separate March 2015 VA examination report for the Veteran's back specifically noted that the Veteran's conditions were not hypothermia residuals. Reviewing the evidence of record, the Board finds that the Veteran's current 10 percent rating is more appropriate. The only symptoms the Veteran experiences as hypothermia residuals are sensitivity to cold and arthralgia. Without at least one additional symptom articulated in the rating criteria associated with hypothermia residuals, the Veteran does not qualify for a higher rating. Thus, her appeal on this issue is denied. See 38 C.F.R. § 4.104, DC 7122. REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge (VLJ) shall remand the case to the AOJ, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). 1. Entitlement to service connection for a thoracolumbar spine disability is remanded. Because the Board reopened this claim after the AOJ previously denied reopening, and because the Veteran has not submitted a waiver, remand is required so that the AOJ can consider the Veteran's allegation that she sustained an in-service back injury, preserving her right to one review on appeal. See Hickson, 23 Vet. App. at 399400; see also 38 U.S.C. § 7104(a). Furthermore, as noted above, the Board finds that an addendum to the January 2014 VA medical opinion is warranted. When a nexus between a current disability and an in-service event is indicated, there must be a medical opinion that provides some non-speculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). The prior examiner failed to address the numerous complaints of low back pain and whether those incidents are related to the Veteran's current back disabilities. As such, an addendum is required so that the AOJ can fulfill its duty to assist. See 38 C.F.R. § 20.904(a). 2. Entitlement to service connection for right lower extremity neuropathy, as well as the appeals to reopen the claims for entitlement to service connection for kidney disability, gastrointestinal disability and right thigh disability are remanded. At her hearing, the Veteran alluded to the fact that these conditions all are secondary to her back disability. Tr. at 6, 89. If the Veteran's back claim ultimately is granted then a previously unestablished element of her claim will have been proven, requiring reopening of the previously denied claims, as the claims previously only were considered on a direct basis. Additionally, as the VLJ noted, neuropathy and kidney/bladder issues could be neurological symptoms for which the Veteran could receive a separate disability rating if she later is service connected for her back. See 38 C.F.R. § 4.71a, DCs 52355242. Thus, the Board finds that these issues inextricably are intertwined with adjudication of the Veteran's back claim, requiring remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain an addendum to the January 2014 VA back examination and opinion. If the examiner deems a new examination is necessary in view of the time elapsed since the prior examination, one shall be procured. The addendum shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's current thoracolumbar spine disabilities occurred in, or is the result of, her period of service, to include her numerous complaints of in-service back pain? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary, to include obtaining updated examinations and opinions and then readjudicate the Veteran's claims on appeal. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.