Citation Nr: 21040997 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-07 808 DATE: July 7, 2021 ORDER An April 15, 2016 Department of Veterans Affairs (VA) Form 21-0958, Notice of Disagreement (NOD), concerning the issue of whether new and material evidence had been received to reopen service connection for a lumbar spine disability, was timely filed. New and material evidence having been received, reopening of service connection for a lumbar spine disability is granted. Service connection for a lumbar spine disability, to include lumbar spine stenosis, lumbar disc herniation, and lumbar spondylosis, is granted. FINDINGS OF FACT 1. On April 22, 2015, the Veteran was mailed notice by VA informing that the VA Regional Office (RO) had declined to reopen service-connection for a lumbar spine disability. 2. On April 15, 2016, the Veteran's representative attempted to submit a timely NOD to the April 2015 RO rating decision. 3. Through no error on the Veteran's or representative's part, the "D2D" system failed to transmit the timely NOD to VA, and failed to generate an error code informing of delivery failure. 4. Upon learning of the transmission error, the representative resubmitted the NOD, which had been signed by the Veteran on April 15, 2016; the NOD was received by VA in July 2016. 5. An April 2011 RO rating decision denied service connection for a lumbar spine disability, finding that the evidence did not support that a lumbar spine disability was related to service; the Veteran filed a timely NOD in April 2011; a Statement of the Case (SOC) was issued in July 2012; and the Veteran subsequently failed to perfect the appeal, so the April 2011 rating decision became final. 6. New evidence received since the April 2011 RO rating decision pertains to a finding that a currently diagnosed lumbar spine disability is related to an in service back injury. 7. The Veteran is currently diagnosed with multiple lumbar spine disabilities, to include lumbar spine stenosis, lumbar disc herniation, and lumbar spondylosis. 8. During service the Veteran was treated for back pain related to a falling injury on two occasions. 9. The diagnosed lumbar spine disabilities are related to one or more of the in-service falls. CONCLUSIONS OF LAW 1. The requirements are met for a timely NOD with respect to the April 2015 RO rating decision. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 3.103,3.104, 20.200, 20.201, 20.300, 20.301, 20.302, 20.305, 20.1103 (2016). 2. The April 2011 RO rating decision denying service connection for a lumbar spine disability became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. Evidence received since the April 2011 RO rating decision is new and material to reopen service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from November 1978 to August 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2016 decision that found a NOD to an April 2015 RO rating decision had not been timely filed. The Veteran testified at a May 2021 virtual Board hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. In the instant decision the Board finds that a NOD was timely filed to the April 2015 RO rating decision denial of reopening service connection for a lumbar spine disability. A SOC has not yet been issued on the question of whether new and material evidence has been received to reopen service connection for a lumbar spine disability, and, if so, whether service connection is warranted; however, the Board finds that a SOC is not required in this case because the Board is exercising its jurisdiction derived from the filing of a NOD by the Veteran in April 2016 to find that service connection for a lumbar spine disability is warranted, which constitutes a full grant of the benefit sought on appeal. See Manlincon v. West, 12 Vet. App. 238, 240 (1999) (stating that a NOD is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) ("appellate review of an RO decision is initiated by an NOD"); Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"); Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) (noting that the language used by Congress in enacting the statute for filing a NOD was "mandatory," indicating a clear intention to foreclose the Board's exercise of jurisdiction over a matter where a NOD had not been filed, but not where a substantive appeal had not been filed). This full grant of the benefits renders moot the purpose of the SOC and need for SOC because the claim has been fully substantiated. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants all of the issues on appeal, no further discussion of VA's duties to notify and assist is necessary. 1. A Timely NOD was Received to the April 2015 Rating Decision. During the time period relevant to the instant matter, an appeal consisted of a timely filed NOD in writing, and after a SOC has been furnished, a timely filed substantive appeal. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. As to what constituted a NOD, the United States Court of Appeals for Veterans Claims (Court) has said that the Board determined de novo whether a document is a NOD. See Fenderson v. West, 12 Vet. App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27 28 (1996). In this regard, an NOD is a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudication(s). 38 C.F.R. § 20.201. A NOD requires no special wording or phrasing and is to be evaluated within the context of the overall record. Id.; see also Jarvis v. West, 12 Vet. App. 599, 561-62 (1999). A claimant or his/her representative must have filed a NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a). The NOD must have been filed with the VA office from which the claimant received the notice of determination being appealed unless notice has been received that the applicable VA records had been transferred to another VA office. 38 C.F.R. § 20.300. If the NOD was not filed within the one year time period, the RO decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprived the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). The date of mailing of the letter of notification from the RO was presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). A NOD postmarked prior to expiration of the one-year period would be accepted as having been timely filed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.305(a). In the event that the postmark was not of record, the postmark date was presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305(a). Under 38 C.F.R. § 3.109, time limits for filing to challenge an adverse VA decision may be extended in some cases on a showing of "good cause." Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. There is no legal entitlement to an extension of time; rather, 38 C.F.R. § 3.109(b) leaves the decision to the sole discretion of VA. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. An untimely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy, 23 Vet. App. at 41. Having reviewed all the evidence of record, the Board finds that, for the reasons discussed below, the Veteran's April 15, 2016 NOD, received by VA in July 2016, should be considered timely. On April 22, 2015, the Veteran was mailed notice by VA informing that the VA Regional Office (RO) had declined to reopen the issue of service-connection for a lumbar spine disability. Per the letter, the Veteran was advised about having one year from the date of the letter to appeal the decision. The Veteran was also informed that a copy of VA Form 4107, explaining the appeal rights, was enclosed with the letter. Per the lay evidence of record, including that offered at the time of the May 2021 virtual Board hearing, on April 15, 2016, the Veteran, through the representative, attempted to submit a timely NOD to the April 2015 RO rating decision. According to the representative's credible testimony, which is supported by various informational print-outs of record, on April 15, 2016, after the Veteran had signed the NOD disagreeing with the April 2015 RO rating decision, the representative attempted to submit the NOD to VA through the D2D system run by the Florida Department of Veterans Affairs (FDVA). Through no error on the Veteran's part, the D2D system failed to transmit the timely NOD to VA, and failed to generate an error code informing of this fact. Various print-outs received in April 2021 confirm that the Veteran's representative attempted to submit the timely NOD through the FDVA's D2D system on April 15, 2016. Further, the print-out appears to indicate that the timely NOD remained "lost in the system" until at least June 2016. Upon the representative learning of the transmission error, the representative resubmitted a copy of the NOD that had been timely signed by the Veteran on April 15, 2016. The re-submitted NOD was received by VA in July 2016. As discussed above, a NOD postmarked prior to expiration of the one-year period will be accepted as having been timely filed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.305(a). Here, the Board finds the instant matter analogous to a timely postmarked NOD that was subsequently "lost in the mail." It is clear from the evidence of record that the Veteran signed, and the representative electronically submitted, a timely NOD to the April 2015 RO rating decision declining to reopen service connection for a lumbar spine disability on April 15, 2016. In other words, the submission was electronically "postmarked" on that date, which was within one year of the April 22, 2015 VA denial notice. As the Board finds that the April 15, 2016 NOD was postmarked as of that date, the NOD should be accepted as timely filed, regardless of when the electronic submission was actually received. Id. In sum, the Board finds that the Veteran's NOD to the April 2015 rating decision declining to reopen the issue of service connection for a lumbar spine disorder was electronically postmarked on April 15, 2016, which was within one year of the April 22, 2015 VA denial notice. As such, the Board finds that the evidence of record supports that the April 15, 2016 NOD was timely filed, and the Veteran's appeal of the April 2015 rating decision declining to reopen the issue of service connection for a lumbar spine disorder should proceed. 2. Reopening of Service Connection for a Lumbar Spine Disability is Granted. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as 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 determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 received 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, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, 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 Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. An April 2011 RO rating decision denied service connection for a lumbar spine disability, finding that the evidence did not support that a lumbar spine disability was related to service. The Veteran filed a timely NOD in April 2011, and a SOC was issued in July 2012. The Veteran subsequently failed to perfect the appeal. As such, the April 2011 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. New evidence received since the April 2011 RO rating decision pertains to a finding that a currently diagnosed lumbar spine disability is related to an in service back injury. Specifically, in an August 2018 private opinion letter, a private neurosurgeon opined that multiple diagnosed lumbar spine disabilities are related to an in-service back injury. The Board finds such evidence to be new and material to warrant reopening of the issue of service connection for a lumbar spine disability. 3. Service Connection for a Lumbar Spine Disability is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran contends that one or more currently diagnosed lumbar spine disabilities are related to an in-service fall and back injury. At the outset, the Board finds that the Veteran is currently diagnosed with the lumbar spine disabilities of lumbar spine stenosis, lumbar disc herniation, and lumbar spondylosis. Such diagnoses can be found in the report from an August 2017 private surgical record. Next, the Board finds that during service the Veteran was treated for back pain related to a falling injury on two occasions. Per an April 1980 service treatment record, the Veteran was diagnosed with, and treated for, lumbar strain following a fall from a cliff. Additionally, in May 1988, the Veteran was treated for back spasms in the lumbar spine. Per a corresponding service treatment record, the Veteran had been experiencing back problems over the previous four months after having fallen out a window. Finally, having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether one or more currently diagnosed lumbar spine disabilities are related to the in-service falls. The Board notes that VA obtained a negative direct service connection opinion in January 2011; however, a review of the examination report indicates that the VA examiner found that the Veteran only had one in-service back injury/fall in April 1980. No mention was made of the May 1988 service treatment records following a second in-service fall and resulting back injury. As the January 2011 negative direct service connection opinion was based, at least in part, on the absence of any back pain or treatment following the April 1980 in-service back injury, the Board finds the opinion to be inadequate for VA rating purposes as the opinion is based upon an inaccurate factual record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). During the course of this appeal VA received an opinion from a private neurosurgeon in August 2018. Per the private opinion report, the neurosurgeon reviewed the Veteran's treatment records since service separation. After reviewing the relevant evidence, the VA examiner opined that it was most likely that one or more currently diagnosed lumbar spine disabilities were due to the Veteran's in service fall(s). Specifically, in the rationale section the private neurosurgeon explained that the in-service fall out of a window and resulting injury began the process in the back that would eventually lead to the development of multiple lumbar spine disabilities. In sum, the evidence of record reflects that the Veteran is currently diagnosed with multiple lumbar spine disabilities, and that during service the Veteran experienced multiple falls resulting in back injuries. There is medical opinion evidence that supports that one or more of these lumbar spine disabilities are due to at least one (if not both) of the in-service falls. Resolving all reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection for a lumbar spine disability, to include lumbar spine stenosis, lumbar disc herniation, and lumbar spondylosis, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.