Citation Nr: 21013415 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-22 415 DATE: March 9, 2021 ORDER New and material evidence having not been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative joint disease, lumbosacral spine is remanded. FINDINGS OF FACT 1. The Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder in a September 2013 rating decision. The Veteran was notified of the decision, but he did not file an appeal or submit new and material evidence within the appeal period. In February 2015, the RO on its own initiative reopened the prior decision and again denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. 2. Evidence added to the record since the final September 2013 denial is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The September 2013 rating decision which denied entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1978 and from April 1979 to February 1995. In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. New and Material Evidence Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran’s claim of service connection for an acquired psychiatric disorder, PTSD, was initially denied in a September 2013 rating decision as VA was unable to corroborate combat or any other in-service stressor. The Veteran did not file any statement indicating disagreement with the prior decision and no new and material evidence was physically or constructively received within one year of the determination. Accordingly, the September 2013 rating decision is now final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has 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 determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the September 2013 final denial, the Veteran did not file an appeal or submit new and material evidence within the appeal period. See September 2013 Rating Decision. In February 2015, the RO on its own initiative reopened the prior decision and again denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. The February 2015 rating decision continued the previous denials. See February 2015 rating Decision. The evidence received since the last prior final denial of the claims in September 2013 includes additional VA treatment records and additional statements by the Veteran reiterating his belief that he is entitled to service connection for these disorders. The Veteran presented testimony during his March 2019 hearing before the undersigned VLJ concerning the circumstances of his claimed stressors. Specifically, the Veteran testified that he was present during a shooting in 1984 at a McDonald’s restaurant in Mexico. The Veteran further alleged a stressor associated with the incident that caused his back injury. The Veteran also testified to stressors associated with a shark attack when a fellow sailor fell off the USS Tripoli, and a shooting at Moffett Field in 1989. See March2019 Board Videoconference Hearing. The stressors presented by the Veteran at his videoconference hearing have previously been alleged by the Veteran and adjudicated. See March 2012 VA Form 21-4138 Statement in Support of Claim; See September 2013 Rating Decision; February 2015 rating Decision. The VA treatment records do not include any etiological opinions that attribute the claimed disorders to the Veteran’s military service. Moreover, there is no additional evidence in the claims file attributing these disorders to the Veteran’s military service. Specifically, additional VA medical records acquired since the September 2013 rating decision were reviewed and found to be cumulative in nature without providing etiological opinions that attribute the claimed disorders to the Veteran’s military service. Consequently, there is no evidence of record indicating the Veteran’s claimed disorders are etiologically attributed to his military service aside from the arguments previously considered in the September 2013 rating decision and again in February 2015 rating decision. See March 2012 VA Form 21-4138 Statement in Support of Claim; See September 2013 Rating Decision; February 2015 rating Decision. As there are no new contentions or evidence to support the claims, the evidence added to the record is either cumulative, or unrelated to the claims. As new and material evidence has not been submitted, the claims are not reopened, and the appeal as to these issues is denied. 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease, lumbosacral spine is remanded. The Board has reviewed the record and finds that a remand is necessary to enable the AOJ to conduct additional development. At the March 2019 Board hearing, it was asserted that the severity of the Veteran’s degenerative joint disease of the lumbosacral spine worsened since his last VA examination in November 2013. In support of this assertion, the Veteran reported that his condition has worsened in so much as he now suffers sudden pain when sitting, bending over, or standing and he is unable to participate in many activities, including going out on his bike and having to take time off of work because of pain. See March 2019 Board Videoconference. Based on the Veteran's statements as to the increase in severity of his service-connected chronic lumbar strain, a new VA examination is needed to ascertain the current severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In sum, the Board finds that a remand is necessary to allow the AOJ to provide the Veteran with a VA examination to determine the current severity of his service-connected degenerative joint disease of the lumbosacral spine. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the Veteran's electronic claims file all outstanding VA records from November 2013 to current. 2. Schedule the Veteran for a VA lumbar spine examination to determine the severity of the Veteran’s lumbar spine disability. The examiner is instructed to: (a.) Obtain the Veteran's lay history regarding symptomatology. (b.) Test and document the ROM for the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. For each ROM, the examiner is asked to explicitly identify the degree in which pain is first evidenced by the Veteran's visible behavior. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. (c.) If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss. (d.) Identify the nature and severity of all current manifestations of the Veteran's service-connected degenerative joint disease of the lumbosacral spine, including any neurological manifestations. The extent of any weakened movement, excess fatigability, and incoordination on use should be described. Any additional impairment due to weakened movement, excess fatigability, or incoordination should be assessed in terms of the degree of additional ROM loss. • Any opinion expressed by the examiner must be accompanied by a complete rationale. • If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. • If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.