Citation Nr: 21075353 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-15 652 DATE: December 20, 2021 ORDER New and material evidence has been received and the claim for service connection for a low back injury is reopened; to this extent, the appeal is granted. Entitlement to service connection for a low back disability is granted. Entitlement to an effective date of February 16, 2011 for service connection for traumatic brain injury (TBI) is granted. REMANDED Entitlement to an increased rating for TBI is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure, is remanded. Whether new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for temporomandibular joint (TMJ) dysfunction is remanded. FINDINGS OF FACT 1. In an April 2010 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied reopening the claim for service connection for a low back disability; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the April 2010 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 3. The Veteran's low back disability is related to service. 4. The Veteran filed to reopen his claim for service connection for TBI on February 16, 2011, which the RO denied in April 2012. The Veteran timely appealed the April 2012 rating decision and his appeal has been pending since that time. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for a low back disability are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a) (2009). 2. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an effective date of February 16, 2011 for service connection for TBI are met. 38 U.S.C. § 5110, 5107; 38 C.F.R. §§ 3.155, 3.156, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1963 to May 1966. These matters come before the Board of Veterans' Appeals (Board) from April 2012 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Briefly, medical records and VA examinations were associated with the claims file after the RO issued the February 2018 statement of the case (SOC). Some of the records specifically pertain to the claim for service connection for the back disability. Generally, a supplemental statement of the case (SSOC) is required when the Agency of Original Jurisdiction (AOJ) receives additional pertinent evidence after a SOC has been issued and before the appeal is certified to the Board. 38 C.F.R. § 19.31(b)(1). In this case, the AOJ/RO did not issue a SSOC; however, since the Board is reopening and granting the claim for service connection for a back disability, the Veteran has not been prejudiced by the failure of the AOJ/RO to issue a SSOC. The records added to the claim file since the February 2018 SOC do not pertain to the claim for entitlement to an earlier effective date for TBI and as such, a SSOC is not necessary before the Board may adjudicate the claim. 38 C.F.R. § 19.31(b)(1). New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. New and material evidence has been received and the claim for service connection for a low back injury is reopened; to this extent, the appeal is granted. In April 2010, the RO declined to reopen the Veteran's claim for service connection for a low back disability, finding that no new and material evidence had been provided showing a low back disability had begun in service. The Veteran was provided notice of this decision and his appellate rights but he did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2009). The evidence received since the April 2010 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, an October 2021 VA examination shows the Veteran has a back disability that is related to service. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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; 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 the claimant. 2. Entitlement to service connection for a low back disability is granted. The Veteran contends that his low back disability is related to service. The Board concludes that the Veteran has a current disability that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). First, the October 2021 VA examination shows the Veteran has a current diagnosis of degenerative arthritis. Second, service treatment records show the Veteran injured his back during service, to include treatment for low back strain. Records also show he was thrown from a horse and was involved in physical altercations. Further, he reported to the VA examiner and testified before the Board that he fell off the side of a ship while chipping and painting the side of the ship. Finally, the October 2021 VA examiner, after review of the lay and medical evidence, and after examining the Veteran, found that the Veteran's current back disability is related to his in-service injuries. The examiner supported the opinion with rationale. Accordingly, the Board finds that the three elements for service connection for degenerative arthritis of the thoracolumbar spine have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is granted. Effective Date 3. Entitlement to an effective date of February 16, 2011 for service connection for TBI is granted. The Veteran seeks an effective date prior to September 15, 2017 for service connection for TBI. Generally, the date of entitlement to an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2) (2009). With regard to reopened claims, the date of an award of service connection based on a claim reopened after final disallowance will be the later of the date of receipt of the claim or the date entitlement arose. See 38 C.F.R. § 3.400(q) (2009). In this case, the Veteran filed his original claim for service connection for TBI on July 21, 2009. The RO denied the claim on April 7, 2010. The Veteran was notified of his appellate rights but he did not submit a notice of disagreement (NOD) with the April 2010 rating decision. The Board acknowledges that the Veteran submitted a second request for service connection for TBI on February 16, 2011, which was within one year of the April 2010 rating decision. However, he did not express intent to appeal the April 2010 decision. Further, he did not submit new and material evidence prior to the expiration of the one year appeal period, or April 7, 2011. As such, the April 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2009). Regarding the claim filed on February 16, 2011, the Veteran sought service connection for TMJ dysfunction and requested that the RO reopen claims for service connection for TBI, an acquired psychiatric disorder, and a low back injury. The RO denied the claims on April 2, 2012. On March 11, 2013, the Veteran submitted a timely NOD. The Veteran stated that he disagreed with all issues that he submitted on his February 16, 2011 claim form and sought service connection, the earliest effective date, and the highest rating for the claimed disabilities. In March 2013, the RO notified the Veteran that it declined to treat the NOD as valid because the Veteran did not list the specific disabilities he wanted to appeal. Instead, the RO treated the document as a new claim. The Board finds that this finding was in error. Regarding the validity of NODs, the Board notes that regulations in effect at the time provided that a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute an NOD. While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. If the RO gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 U.S.C. § 7105 and 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015, later amended by 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 19.23, 20.201(b))); Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). "[T]he actual wording of the communication and the context in which it was written" must be considered in determining whether it constitutes an NOD, and all communications should be liberally construed. Jarvis v. West, 12 Vet. App. 559, 561-62 (1999). A broad NOD may confer appellate jurisdiction over all the issues adjudicated in a rating decision. A "narrow or specific NOD," by comparison, may limit appellate jurisdiction to the issue(s) specifically identified in the NOD. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). The Court has made clear that the VA adjudication process "is not meant to be a trap for the unwary... a stratagem to deny compensation [nor] a minefield" for claimants. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (internal quotations omitted). In this case, the Veteran did not specifically list each issue he wanted to appeal on the NOD form, rather, he indicated that the NOD form pertained to the claims he filed on February 16, 2011, all of which were denied on April 2, 2012. No issues other than those raised on February 16, 2011 were adjudicated in the April 2012 rating decision. On the NOD form, under the box labeled "Specific Issues of Disagreement," the Veteran listed "all issues." Reading the NOD liberally, the Board finds it reasonable that the Veteran intended to appeal all claims filed on February 16, 2011 and adjudicated in the April 2, 2012 rating decision, and as such, the Board finds that the March 2013 NOD is valid. Given the validity of the March 2013 NOD, the claims pertaining to TBI, TMJ, low back, and an acquired psychiatric disorder have been pending since February 16, 2011. Regarding the proper effective date for service connection for TBI, as noted above, the Board finds that the date of an award of service connection based on a claim reopened after final disallowance will be the later of the date of receipt of the claim or the date entitlement arose. See 38 C.F.R. § 3.400(q) (2009). Here, the Board finds that the date of the claim, February 16, 2011, is the proper effective date as it is the later of the two dates. As such, an effective date of February 16, 2011 for service connection for TBI is warranted and to this extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to an increased rating for service-connected TBI is remanded. The Veteran seeks an increased rating for his service-connected TBI. As noted above, an effective date for service connection for TBI has been granted as of February 16, 2011. Further, additional evidence was associated with the claims file after the issuance of the February 2018 SOC that is pertinent to this claim. Accordingly, a remand is necessary to allow the RO the opportunity to assign initial ratings and consider the evidence received after the February 2018 SOC in the first instance before the Board may address this matter on appeal. 2. Entitlement to service connection for COPD, to include as due to asbestos exposure, is remanded. The Veteran seeks service connection for COPD, to include as a result of asbestos exposure during service. A remand is required for additional development before the Board may adjudicate the claim. Specifically, additional evidence was associated with the claims file after the issuance of the February 2018 SOC that is pertinent to this claim and must be considered by the AOJ in the first instance. Further, during his hearing before the Board, the Veteran testified that he had scar tissue and nodes on his lungs related to asbestos exposure. See Hearing transcript at 8. VA treatment records dated in August 2021 indicate that the Veteran was to be scheduled for a chest CT to determine whether he had lung issues related to asbestos exposure. The CT scan was completed on August 31, 2021 and the report shows stable bilateral pulmonary nodules demonstrating a benign behavior or appearance. It is unclear whether these nodules are related to service, to include asbestos exposure. On remand, an addendum opinion should be obtained addressing whether the Veteran has any lung disability, to include COPD, that is related to his presumed exposure to asbestos during service. 3. Whether new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, claimed as PTSD, is remanded. 4. Entitlement to service connection for TMJ dysfunction is remanded. Regarding whether new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, claimed as PTSD, and whether service connection for TMJ is warranted, the Veteran submitted a timely NOD with an April 2012 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following actions: 1. Implement the new effective date for service connection for TBI. 2. Obtain an opinion from a qualified clinician addressing the etiology of the Veteran's lung disabilities, to include COPD. The examiner must be provided access to the electronic claims file and he or she must indicate review of the file in the examination report. After reviewing the record, to include the CT scan report from August 31, 2021, the examiner should indicate for any lung condition present, to include COPD, whether it is at least as likely as not (50 percent or greater probability) that the lung condition is related to service, to include the Veteran's recognized exposure to asbestos during service. The examiner must specifically address the pulmonary nodules identified on the CT scan and whether the nodules are related to service, to include asbestos exposure. All opinions must be supported with rationale and the examiner must be notified that VA has conceded the Veteran's exposure to asbestos. 3. Thereafter, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. 4. Send the Veteran and his representative a statement of the case that addresses the issues of whether new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, claimed as PTSD; and entitlement to service connection for TMJ. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.