Citation Nr: 21027498 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-35 034 DATE: May 5, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. The claim of entitlement to service connection for a neck disability is denied. REMANDED The claim of entitlement to service connection for a back disability is remanded. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a January 2006 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a back disability. The Veteran did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it became final. 2. In a September 2013 rating decision, the RO confirmed and continued the previous denial of entitlement to service connection for a back disability. The Veteran filed a Notice of Disagreement with respect to other issues denied in that rating decision, but did not disagree with the denial of the back disability, nor did he submit new and material evidence within one year of the decision, and it became final. 3. Evidence has been received since the September 2013 rating decision that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. 4. The preponderance of the evidence of record fails to establish that the Veteran has a present neck disability that is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The January 2006 and September 2013 rating decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the September 2013 denial of service connection for a back disability. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from June 1969 to October 1978. The instant matter is on appeal from September 2013 and May 2017 rating decisions. The Board previously remanded these issues for additional development in October 2020. In this remand, the Board also requested that a Statement of the Case be issued on the claims of entitlement to increased evaluations for hypertension and diabetes mellitus pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A Statement of the Case was issued in December 2020 denying increased ratings for both disabilities. The Veteran did not file a timely Substantive Appeal. The March 2021 Appellate Brief states that the Veteran was not on notice that a Substantive Appeal was required, and the previous Board remand instructions should have included that information. Thus, the Veteran's representative argues that these issues should also be before the Board. The Veteran's representative fails to discuss the notice provided to the Veteran regarding the appellate process in the December 2020 Statement of the Case. On the first page of the Statement of the Case, a bolded section entitled "What You Need To Do" states: "To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appeal to the Board of Veterans' Appeals, which you may use to complete your appeal." The section then details what kind of information may be included in the Substantive Appeal. The next section, "When You Need To Do It", notifies the Veteran that he must submit this appeal within 60 days of the date of that notification letter. In bold, the document then states: "If we do not hear from you within this period, we will close your case." Thus, the Board finds that the Veteran received adequate notice of the requirements to appeal the increased rating claims to the Board. Additionally, the Veteran was provided information regarding how to opt into the modernized appeals system. As he did not file a timely Substantive Appeal, these issues are no longer available for appellate review. If the Veteran wishes to file increased ratings claims, he may do so with a separate claim to the Regional Office. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as reflected in the issues section above. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened Generally, 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 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 threshold to reopen a claim is low. 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 to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied the Veteran's claim of entitlement to service connection for a back disability, then claimed as degenerative disc disease of the lumbar spine, in January 2006. The rating decision noted that the evidence did not support a nexus with service. The September 2013 rating decision noted that new evidence was received sufficient to reopen the claim, but the issue remained denied as the evidence did not establish an etiological relationship with service. To the extent the VA was in constructive possession of VA treatment records produced through the subsequent one-year appeal period, the records only report a diagnosis of, and treatment for, a back disability, but do not relate to any etiological relationship with active duty service. Thus, these records are not new and material. As a result, the September 2013 rating decision is final. Lang v. Wilkie, 971 F.3d 1348 (2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Since that rating decision, a VA examination was obtained in January 2021 on the issue of the Veteran's claimed back disability. The bar to reopening a claim for new and material evidence is low, and this VA examination report and medical opinion service meet that threshold. Therefore, such evidence is new and material, and the claim of entitlement to service connection for a back disability is reopened. 2. The claim of entitlement to service connection for a neck disability The Veteran contends that he is entitled to service connection for a neck disability that he believes is related to his active duty service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of spinal stenosis of the cervical spine with subsequent surgical fusion, the preponderance of the evidence weighs against finding that the Veteran's neck disability began during service or within one year of separation from service, or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records do not reflect injury to the neck, nor related symptoms. His records only reflect complaints of lower back pain. The May 1978 separation examination similarly does not document diagnoses or complaints related to his neck. The Veteran was involved in a car accident in 2001. Subsequent medical reports do not reflect complaints related to his neck, only his back. A July 2005 VA examination noted normal cervical findings. The first indication of a neck disability, based upon a review of the medical evidence of record, is a report of injury following a May 2007 accident. In that incident, the Veteran suffered a head injury after a pallet fell from a height and struck him on the top of his head. At that time, he denied neck pain, but noted an odd sensation in his neck. Subsequent treatment records reflect a diagnosis of cervical spinal stenosis, spondylosis, and eventual cervical fusion in October 2011. In sum, the medical evidence of record reflects that the Veteran did not suffer a neck injury or disability during active duty service or within one year of discharge. Instead, the Veteran may have injured his neck in a May 2007 accident, and medical evidence of record indicates a post-service diagnosis and progression of his neck disability leading up to surgical fusion in October 2011. While the Veteran is competent to report having experienced symptoms of neck pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his presently diagnosed disability. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing, as well as medical education or training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not reported that he has such experience. Accordingly, he is not competent to provide an opinion as to the etiology of his present neck disability, and this opinion cannot be afforded probative weight. As there is no probative indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger an examination pursuant to VA's duty to assist, an examination is not required every time a claim is filed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is only required when necessary to decide a claim. Despite the permissive language of VA's duty to assist, the Court has stated that "[i]f Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does." Robinson v. Peake, 21 Vet. App. 545, 553 (2008). See also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a claimant's mere "conclusory generalized statement" that an in-service illness caused his current disability did not trigger VA's requirement to obtain an examination, and it rejected the theory "that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues"). Here, there is no evidence of a present diagnosis related to active duty service other than the Veteran's lay statements, and his nexus opinion has not been afforded probative weight as discussed above. Therefore, the RO did not err in its duty to assist by failing to provide an examination. Accordingly, the preponderance of the evidence of record weighs against a finding of an etiological relationship between the Veteran's present neck disability and his active duty service. As such, the rule regarding reasonable doubt is not for application. Service connection for a neck disability must be denied. REASONS FOR REMAND 1. The claim of entitlement to service connection for a back disability is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain an adequate medical opinion with regard to the etiology of the Veteran's back disability. In the January 2021 VA examination, the Veteran reported experiencing back pain chronically since his discharge from active duty service following an injury in 1970. The Veteran also previously relayed that a treating physician indicated that his 2001 car accident aggravated a back injury that was incurred around 1970. Unfortunately, the medical opinion associated with the VA examination does not address either the Veteran's lay statements or this report from a treating clinician. Accordingly, the medical opinion is inadequate, and remand is necessary to obtain a more thorough etiological opinion. 2. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. As the Veteran is asserting entitlement to TDIU, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 2. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of his back disability. A complete copy of the claims file must be made available to the examiner. The examiner must take a history from the Veteran regarding observable symptomatology, and should consider such lay statements as competent. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Identify any and all present diagnoses pertaining to the Veteran's back. (b.) For each diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the identified disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? (c.) Please specifically address the 1970 injury, service treatment records reflecting complaints of back pain, the Veteran's lay reports of ongoing symptoms following discharge, as well as his asserting that a treating clinician informed him that the 2001 car accident aggravated a back injury from around 30 years earlier. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.