Citation Nr: 21011373 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 19-09 927 DATE: March 1, 2021 ORDER New and material evidence having been received, the claim for service connection for lumbosacral spine disc space narrowing, degenerative joint disease, lumbar paravertebral myositis, and lumbar radiculopathy is reopened. New and material evidence having been received, the claim for service connection for a psychiatric disability is reopened. Entitlement to an effective date prior to December 21, 2015, for the award of service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for a lumbosacral spine disability to include degenerative disc disease and degenerative joint disease is remanded. Entitlement to service connection for a psychiatric disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an initial compensable rating for erectile dysfunction is remanded. Entitlement to a compensable rating for left traumatic epididymitis is remanded. FINDINGS OF FACT 1. In August 1998, the Agency of Original Jurisdiction determined that the Veteran did not submit a well grounded claim for service connection for lumbosacral spine disc space narrowing, degenerative joint disease, lumbar paravertebral myositis, and lumbar radiculopathy and denied the claim. The Veteran did not submit a timely notice of disagreement and the August 1998 rating decision is final. 2. The additional evidence received since the August 1998 rating decision is new and material. 3. In August 1998 and March 1999, the Agency of Original Jurisdiction denied service connection for a psychiatric disability to include a substance use disorder. The Veteran did not submit a timely notice of disagreement and the August 1998 and March 1999 rating decisions are final. 4. The additional evidence received since the August 1998 and March 1999 rating decision is new and material. 5. Erectile dysfunction originated during active service. 6. The Veteran submitted a December 2015 Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ, for erectile dysfunction. The Veteran’s claim was received by Department of Veterans Affairs (VA) on December 21, 2015. 7. No formal claim or other communication requesting service connection for erectile dysfunction was received by VA prior to December 21, 2015. CONCLUSIONS OF LAW 1. The August 1998 rating decision that determined that the Veteran did not submit a well grounded claim for service connection for lumbosacral spine disc space narrowing, degenerative joint disease, lumbar paravertebral myositis; and lumbar radiculopathy and denied the claim is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for lumbosacral spine disc space narrowing, degenerative joint disease, lumbar paravertebral myositis, and lumbar radiculopathy has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 1998 and March 1999 rating decisions that denied service connection for a psychiatric disability to include a substance use disorder are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence sufficient to reopen the claim of entitlement to service connection for a psychiatric disability to include substance abuse disorder has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for assignment of an effective date prior to December 21, 2015, for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1973 to September 1975. Application to Reopen Claims for Service Connection Generally, absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant’s claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals (Board) without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Lumbosacral Spine Disability In August 1998, the Agency of Original Jurisdiction determined that the Veteran did not submit a well grounded claim for service connection for lumbosacral spine disc space narrowing and degenerative joint disease; lumbar paravertebral myositis; and lumbar radiculopathy and denied the claim. In August 1998, the Veteran was informed in writing of the adverse decision and his appellate rights. He did not submit a timely notice of disagreement with the decision. The evidence considered by the Agency of Original Jurisdiction in reaching the August 1998 rating decision determining that the Veteran had not submitted a well grounded claim of service connection for lumbosacral spine disc space narrowing and degenerative joint disease; lumbar paravertebral myositis; and lumbar radiculopathy included service treatment and personnel records, VA examination and clinical documentation, private clinical documentation, and written statements from the Veteran. The service treatment records do not refer to a lumbosacral spine disability. The service documentation does report that the Veteran was involved in an October 1974 motor vehicle accident and injured his right foot. The report of a May 1998 VA spine examination states that the Veteran was diagnosed with lumbosacral spine disc space narrowing and degenerative joint disease; lumbosacral spine radiculopathy; and lumbar paravertebral myositis. New and material evidence pertaining to the issue of entitlement to service connection for lumbosacral spine disc space narrowing, degenerative joint disease, lumbar paravertebral myositis, and lumbar radiculopathy was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the August 1998 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the August 1998 rating decision includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran. An October 2015 VA treatment record states that the Veteran’s military duties included unloading cargo from ships. The Board finds that the October 2015 VA treatment record to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for a lumbosacral spine disability when considered with the evidence previously of record. As new and material evidence has been received, the claim of entitlement to service connection for lumbosacral spine disc space narrowing and degenerative joint disease; lumbar paravertebral myositis; and lumbar radiculopathy is reopened. The issue of entitlement to service connection for a lumbosacral spine disability will be addressed below in the Remand portion of this decision. Psychiatric Disability In August 1998 and March 1999, the Agency of Original Jurisdiction denied service connection for a psychiatric disability to include a substance use disorder as a psychiatric disability was not shown during active service and substance abuse was defined as willful misconducted. In August 1998 and March 1999, the Veteran was informed in writing of the adverse decision and his appellate rights. He did not submit a timely notice of disagreement with the decisions. In his February 1998 Veteran’s Application for Compensation or Pension (VA Form 21 526), the Veteran asserted that he had been treated for nervousness at Fort Eustis, Virginia in 1974. The service treatment records do not refer to a psychiatric disability. The report of an April 1998 VA psychiatric examination states that the Veteran was diagnosed with a not otherwise specified depression and a substance use disorder. New and material evidence pertaining to the issue of entitlement to service connection for a psychiatric disability was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the August 1998 and March 1999 rating decision. Therefore, those decisions became final. 38 C.F.R. § 3.156(b). The additional evidence received since the August 1998 and March 1999 rating decisions includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran. A November 2018 states that the Veteran was diagnosed with major depressive disorder, alcohol use disorder, nicotine use disorder, and cocaine use disorder. The Board finds that the November 2018 VA treatment record to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disability when considered with the evidence previously of record. As new and material evidence has been received, the claim of entitlement to service connection for psychiatric disability is reopened. The issue of entitlement to service connection for a psychiatric disability will be addressed below in the Remand portion of this decision. Earlier Effective Date for the Award of Service Connection Generally, the effective date for an award of service connection is the day after service separation or the date entitlement arose, whichever is later, if the claim is received within one year of the date of separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2)(i). The Veteran asserts that an effective date prior to December 21, 2015, for service connection for erectile dysfunction is warranted. He has advanced no specific argument in support of his claim. The Veteran was discharged from active service in September 1975. The Veteran submitted a December 2015 Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ, for erectile dysfunction. The claim was received by VA on December 21, 2015. Erectile dysfunction has been shown to have originated during active service. In May 2016, the Agency of Original Jurisdiction established service connection for erectile dysfunction, effective as of December 21, 2015, the date of receipt of the Veteran’s Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ. Given that the service connected erectile dysfunction originated during active service and as the Veteran’s claim for service connection was received many years after the date of his separation from active service, the Board concludes that the appropriate effective date for the award of service connection for erectile dysfunction is December 21, 2015, the date of receipt of the claim for service connection. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). REASONS FOR REMAND Entitlement to service connection for a lumbosacral spine disability to include degenerative disc disease and degenerative joint disease, a psychiatric disability, hypertension, a right hand disability, a left hand disability, a right knee disability, and a left knee disability; an initial compensable rating for erectile dysfunction; and a compensable rating for left traumatic epididymitis is remanded. The report of an April 1998 VA examination states that the Veteran was in receipt of Social Security Administration (SSA) disability benefits. The evidence considered by the SSA in granting the Veteran’s claim is not of record. VA’s duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181 (1992). Clinical documentation dated after January 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any lumbosacral spine, psychiatric, hypertension, right hand, left hand, right knee, and left knee disabilities and the service connected erectile dysfunction and left traumatic epididymitis. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA clinical documentation not already of record, including treatment records dated after January 2019. 3. Contact the SSA and request that copies of all records developed in association with the Veteran’s award of disability benefits. Document all requests for information as well as all responses in the claims record. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.