Citation Nr: 21013295 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-45 736 DATE: March 9, 2021 ORDER The application to reopen the previously denied claim for entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is granted. The application to reopen the previously denied claim for entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is granted. The application to reopen the previously denied claim for entitlement to service connection for lupus is granted. REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is remanded. Entitlement to service connection for lupus is remanded. FINDINGS OF FACT 1. The appellant’s claim for service connection for DDD of the lumbar spine was initially denied in a November 2009 rating decision because there was no evidence showing a causative link between the appellant’s diagnosed disability of DDD and his in-service diagnosis of recurrent low back strain. The appellant was notified of this decision and his appellate rights in a December 2009 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. 2. The appellant’s claim for service connection for DDD of the cervical spine was initially denied in an August 2013 rating decision because the appellant failed to report for his scheduled medical examination and the evidence did not support the claim. The appellant’s claim for service connection for lupus was also initially denied in an August 2013 rating decision because there was no evidence of an in-service incurrence of the condition. Finally, the appellant’s claim to reopen the previously denied claim for service connection for DDD of the lumbar spine was denied in the August 2013 rating decision because the evidence received since the prior final rating decision was not found to be new and material. The appellant was notified of these decisions and his appellate rights in an August 203 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. 3. Evidence received since the August 2013 rating decision is related to an unestablished fact necessary to substantiate the claims for service connection for a lumbar spine disability, a cervical spine disability, and lupus. CONCLUSIONS OF LAW 1. The November 2009 rating decision denying entitlement to service connection for DDD of the lumbar spine is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The August 2013 rating decision denying entitlement to service connection for DDD of the cervical spine and for lupus, as well as the claim to reopen the previously denied claim for DDD of the lumbar spine is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to warrant the reopening of the previously denied claims for service connection for a lumbar spine disability, a cervical spine disability, and lupus. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from April 1973 to August 1973 and from September 1974 to March 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied claims to reopen the previously denied claims for service connection for DDD of the lumbar spine, DDD of the cervical spine, and lupus. This decision was appealed in a notice of disagreement (NOD) received by VA in December 2016. A Statement of the Case (SOC) was issued by VA in August 2017. VA received the appellant’s Substantive Appeal (Form 9) in August 2017, requesting a hearing before the Board. The appellant appeared before the undersigned Veterans Law Judge at a videoconference hearing in January 2021. A transcript of that hearing has been added to the record. New and Material Evidence 1. The claim to reopen the previously denied claim for entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine 2. The claim to reopen the previously denied claim for entitlement to service connection for degenerative disc disease (DDD) of the cervical spine 3. The claim to reopen the previously denied claim for entitlement to service connection for lupus is granted. As an initial matter, the Board notes that in the January 2021 Board hearing, the appellant’s representative argued that the standard to reopen these claims should be receipt by VA of “new and relevant evidence” rather than “new and material evidence.” The Board notes that this new standard of proof of “new and relevant evidence” applies only to cases that are being adjudicated under the modernized appeals process. As of the promulgation of this decision, the appellant had not formally opted into the modernized appeal system, and as such, the standard to reopen these claims remains receipt by VA of new and material evidence. In general, decisions of the RO and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (noting the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Typically, a new theory of entitlement alone does not constitute new and material evidence and will not be sufficient to reopen a previously denied claim of service connection under 38 C.F.R. § 3.156(a). See also Velez v. Shinseki, 23 Vet. App. 199, 205-06 (2009) (explaining that separate theories do not constitute separate claims and a previously denied claim may be reopened on an alternate theory only if new and material evidence is presented). The appellant’s claim for service connection for DDD of the lumbar spine was initially denied in a November 2009 rating decision because there was no evidence showing a causative link between the appellant’s diagnosed disability of DDD and his in-service diagnosis of recurrent low back strain. The appellant was notified of this decision and his appellate rights in a December 2009 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. Considering this, the Board finds that the November 2009 rating decision is final. The appellant’s claim for service connection for DDD of the cervical spine was initially denied in an August 2013 rating decision because the appellant failed to report for his scheduled medical examination. The appellant’s claim for service connection for lupus was also initially denied in an August 2013 rating decision because there was no evidence of an in-service incurrence of the condition. Finally, the appellant’s claim to reopen the previously denied claim for service connection for DDD of the lumbar spine was denied in an August 2013 rating decision because the evidence received since the prior final rating decision was not found to be new and material. The appellant was notified of these decisions and his appellate rights in an August 203 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. Considering this, the Board finds that the August 2013 rating decision is final. Evidence received since the August 2013 rating decision is related to an unestablished fact necessary to substantiate the claims for service connection for a lumbar spine disability, a cervical spine disability, and lupus. Specifically, VA has received 2 medical opinions from the appellant’s treating physician at the Detroit VA Medical Center (VAMC) indicating that there might be a link between the appellant’s current low back and neck pain and the back pain he experienced in service, and indicating that the appellant’s currently diagnosed lupus may have onset during service, manifested by a rash, but went undiagnosed at the time due to deficiencies in medical knowledge at the time. The appellant also provided further details regarding how his lumbar and cervical injuries occurred in his October 2016 NOD. The Board finds that evidence new, as it was not previously of record, and material, as it relates to an unestablished fact necessary to substantiate the claims. As discussed below; however, the Board notes that the opinion provided by the appellant’s VA treating physician contains language that is too speculative to grant service connection for these claims, and as such, remand is required to obtain new medical opinions addressing these service connection claims. REASONS FOR REMAND 1. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. 2. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is remanded. 3. Entitlement to service connection for lupus is remanded. As an initial matter, the Board notes that the appellant has reported receiving care for all of these disabilities from the Detroit VAMC. The most recent VA medical records available in the claims folder are from May 2015. As such, on remand, the appellant’s VA treatment records since May 2015 should be added to the claims folder to be reviewed by the RO and by the examiners providing medical opinions regarding the appellant’s service connection claims. Since the most recent VA examinations of the lumbar spine and lupus, the Board notes that a medical opinion from the appellant’s VA treating physician has been received with raises an indication that the appellant’s disabilities may have been incurred during active service. Additionally, the appellant provided statements in his October 2016 NOD regarding how he had injuries to both his low back and his neck while on active service. The Board notes that the RO attempted to obtain a medical opinion addressing the claims for the lumbar spine disability and lupus which addressed the opinion from the appellant’s VA treating physician; however, in an August 2017 addendum opinion, the VA examiner stated that these opinions were not reviewed because they were not available in CPRS. The examiner said that VBMS had been reviewed but apparently the letters submitted from the appellant’s treating VA physician, which are located in VBMS, were not seen. It is unclear why those opinions were not reviewed if they were available. Failure to review them though renders the addendum opinion inadequate. Additionally, the Board finds the August 2015 examination inadequate, as it clearly did not review the entire record. When asked whether the appellant had ever been diagnosed with a thoracolumbar spine condition or a cervical spine condition, the examiner marked “no,” despite the May 2009 MRI showing DDD of the lumbar and cervical spine. Additionally, the examiner does not appear to have reviewed the service treatment records, which document a significant history of low back strain, stating instead that there was a “lack of evidence” of any in-service report of back pain. Further, the Board finds the November 2015 VA examination of the appellant’s lupus inadequate, as the examiner failed to consider the July 1976 bloodwork which the appellant’s treating VA physician opined might indicate an early development of lupus which was undiagnosed. The examiner also noted no “lesions at separation” but did not discuss the notation of tinea versicolor on the separation examination. When considered with the opinion from the appellant’s VA treating physician, there is at least an indication that the tinea versicolor may have been misdiagnosed at the time of separation, and along with the blood work, may be early manifestations of the currently diagnosed lupus. Considering all this, the Board finds that new examinations should be provided for each of the appellant’s claimed disabilities. The examiner should make a full review of the entire claims folder, and conduct a thorough examination, with any appropriate diagnostic testing, for the appellant. After completion of the file review and examination, the examiner should provide a medical opinion as to whether it is at least as likely as not, 50 percent probability, that the appellant’s current disabilities are at least as likely as not related to, or were incurred during, his active service. The matters are REMANDED for the following action: 1. Obtain the appellant’s VA treatment records for the period from May 2015 to the present. 2. Schedule the appellant for a VA examination for his claimed thoracolumbar disability. The examiner must review the claims file. If a diagnosis cannot be provided but the appellant’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the thoracolumbar disability, identified as DDD of the lumbar spine in a May 2009 MRI, at least as likely as not related to service, including multiple in-service reports of low back pain, diagnosed in service as recurrent low back strain and noted at separation. Provide a rationale to support the opinion. The examiner must address the November 2016 medical opinion from the appellant’s treating VA physician that the appellant’s records suggest his back pain might be related to service. In providing the requested opinion, consider the appellant’s description of his in-service injury and symptoms as well as his post-service symptoms. Statements supporting this claim can be found in the appellant’s October 2016 Notice of Disagreement and his August 2017 Form 9. If there is any medical reason to accept or reject the proposition that the appellant’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the DDD of the lumbar spine (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is reminded there is no requirement that the disability have been specifically diagnosed in service. Rather, the examiner should discuss whether the symptoms reported in service could be an undiagnosed manifestation of the current disability. 3. Schedule the appellant for a VA examination for his claimed cervical spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the appellant’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the cervical spine disability, identified as DDD of the lumbar spine in a May 2009 MRI, at least as likely as not related to service, including multiple in-service reports of low back pain, diagnosed in service as recurrent low back strain and noted at separation. Provide a rationale to support the opinion. In providing the requested opinion, consider the appellant’s description of his in-service injury and symptoms as well as his post-service symptoms. Statements supporting this claim can be found in the appellant’s October 2016 Notice of Disagreement and his August 2017 Form 9. If there is any medical reason to accept or reject the proposition that the appellant’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the DDD of the cervical spine (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is reminded there is no requirement that the disability have been specifically diagnosed in service. Rather, the examiner should discuss whether the symptoms reported in service could be an undiagnosed manifestation of the current disability. 4. Schedule the appellant for a VA examination for his claimed lupus. The examiner must review the claims file. If a diagnosis cannot be provided but the appellant’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the appellant’s lupus at least as likely as not related to service, including the appellant’s 1976 bloodwork results and/or his noted diagnosis of tinea versicolor on his separation examination. The examiner must discuss the opinions offered by the appellant’s VA treating dermatologist which posit that the appellant’s lupus first developed in-service. (Continued on the next page)   Provide a rationale to support the opinion. In providing the requested opinion, consider the appellant’s description of his in-service and post-service symptoms. Statements supporting this claim can be found in the appellant’s October 2016 Notice of Disagreement and his August 2017 Form 9. If there is any medical reason to accept or reject the proposition that the appellant’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.