Citation Nr: 22014881 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-10 867A DATE: March 15, 2022 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for a thoracic spine condition. REFERRED The issue of entitlement to service connection for a cervical spine condition was raised in the June 2021 hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REMANDED Entitlement to a rating in excess of 20 percent for a lumbosacral strain is remanded. Entitlement to service connection for a thoracic spine condition is remanded. Entitlement to service connection for right leg radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. In October 2010, VA denied entitlement to service connection for a thoracic spine/upper back condition; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. New evidence received since the October 2010 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for a thoracic spine condition. CONCLUSION OF LAW The October 2010 rating decision that denied entitlement to service connection for a thoracic spine condition is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1977 to January 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in June 2021; a transcript has been associated with the file. As an initial matter, the Veteran originally claimed entitlement to service connection for his "back." The United States Court of Appeals for Veterans Claims has held that "a claimant's identification of the benefit sought does not require any technical precision." Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). In light of the Veteran's testimony during the June 2021 hearing that he intended this to encompass his entire spine, including his neck, and in light of the fact that a rating decision was never issued as to a cervical spine disability, the Board finds that this claim is pending and requires adjudication in the first instance. As an additional note, the Board notes the Veteran is service connected for left lower extremity radiculopathy associated with his lumbosacral strain. During the June 2021 hearing, radiculopathy of the left leg was mentioned as part of the Veteran's claim to a rating in excess of 20 percent for his lumbosacral strain. However, the Board adjudicated and remanded this issue in a May 2021 decision in the modernized appeal system, which means the issue does not automatically return to the Board. This remanded issue was adjudicated in a July 2021 rating decision, with which the Veteran filed a Higher Level Review (HLR) request. An HLR decision was issued in September 2021. This issue has not been appealed to the Board. VA notified the Veteran by letter on February 7, 2022, that a prior supplemental statement of the case addressing this issue was erroneous and no legacy appeal was pending for this issue. As a result, the issue of entitlement to an increased rating for the Veteran's left leg radiculopathy will not be discussed further in this decision. The Veteran is within the one year window to request review of the September 2021 HLR decision, if he wishes to do so. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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 determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. 1. New and material evidence has been received to reopen a claim for entitlement to service connection for a thoracic spine condition. The Board notes that the October 2015 rating decision by the RO declined to reopen the claim of entitlement to service connection for a thoracic spine condition. However, determining whether to reopen a claim is a preliminary and necessary step prior to addressing the claim on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In an October 2010 rating decision, VA denied entitlement to service connection for a thoracic spine condition. The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In December 2014, the Veteran submitted a claim to reopen the issue of entitlement to service connection for a thoracic spine condition. An October 2015 rating decision declined to reopen the claim to service connection for a thoracic spine condition stating no new and material evidence was submitted. This is the decision on appeal before the Board. New evidence added to the record since the final October 2010 rating decision includes a letter from the Veteran's wife, VA treatment records, VA examinations, and the June 2021 hearing transcript. These new assertions and evidence are material in that they are related to an unestablished fact and raise a reasonable possibility of substantiating the service connection claims. The Board thus reopens the Veteran's claims for entitlement to service connection for a thoracic spine condition for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a lumbosacral strain is remanded. The Veteran asserts that his 20 percent disability rating for a lumbosacral strain does not accurately reflect his current disability level. During the June 2021 hearing, the Veteran asserted that his lumbosacral strain disability has increased in severity since the Veteran was last examined by VA in September 2018. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his lumbosacral strain disability. Additionally, during the June 2021 hearing the Veteran asserted he has received treatment for his lumbar spine through the VA and a private provider. These records are not currently associated with the record. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. As a result, a remanded in required to allow VA to obtain the outstanding relevant VA and private medical treatment records. Finally, the Board notes the Veteran's contention made in the June 2021 hearing regarding the effective date for his lumbosacral strain disability rating. The Veteran asserts his 20 percent disability rating should have began in 1995. However, the Veteran's 20 percent disability reating was granted in a July 1996 rating decsion. The Veteran did not appeal this decsion nor was new and material evidence submitted within one year of that decision. As a result, the July 1996 rating decision became final. In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006) the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision that establishes an effective date for an award becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error. In other words, the Court found that there is no valid freestanding claim for an earlier effective date. The Veteran submitted a request to reopen his claim in December 2014. As a result, the appeal period before the Board for his current claim for an increased rating for his lumbosacral strain begins one year prior to the date of claim, December 2013, through to the present time. Any additional increase in the disability rating for his lumbosacral spine in this appeal cannot be awarded prior to December 2013. 2. Entitlement to service connection for a thoracic spine condition is remanded. The Veteran asserts that his thoracic spine condition is directly related to his active duty serivce, to include an injury to his back while on active duty. The Veteran underwent a VA examination in July 2015 for his thoracic spine. Here, the examier noted degenerative arthritis of the spine and a lumbosacral sprain. However, the examiner then stated that the Veteran's thoracic spine condtion was less likely than not related to his active duty service. The examiner, in total, reasoned that, "the [Veteran] has a chronic degenerative lumbar spine problem unlikely to be related to remote trauma." The examiner did not provide any additional assertions as to why the Veteran's thoracis spine condition was unlikely to be related to a "remote trauma" including the Veteran's in service back injury. This opinion is a conclusory opinion without adequate rationale. As a result the Board finds the July 2015 VA examination inadeqaute. See Barr v. Nichols, 21Vet. App.at 311; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion that is unsupported by a coherent rationale is of no probative value). Thus, a remand to obtain another opinion is necessary before the claim can be adjudicated. 3. Entitlement to service connection for right leg radiculopathy is remanded. During the June 2021 hearing, the Veteran asserted he experiences radiating pain from his back down into his right leg. As a result, the Board assumes jurisdiction of this issue as part and parcel of the increased rating for the Veteran's lumbosacral sprain on appeal. Chavis v. McDonough, 34 Vet. App. 1 (2021). For secondary service connection claims, an examination is required where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) a service-connected disability; (3) an indication that the disability or symptoms of disability may be associated with the service-connected disability; but (4) insufficient competent medical evidence on which to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). In a September 2018 VA examination for the Veteran's lumbosacral strain, the examiner noted consistent pain that may be excruciating at times, paresthesias and/or synesthesia, and numbness in the Veteran's right leg. The Veteran is service connected for his lumbosacral strain. The Veteran testified at the June 2021 hearing that his back pain radiates down to his right leg. Additionally, the Veteran's right leg radiculopathy was initially noted in his September 2018 VA examination for his lumbosacral strain. There is no medical opinion of record that considers the Veteran's right leg pain in relation to his lumbosacral strain. As a result, the Board finds that an examination is warranted prior to adjudicating the claim. 4. Entitlement to a total disability rating based on individual unemployability. During the June 2021 hearing, the Veteran asserted an inability to obtain and follow substaintially gainful employment as a result of his severe back pain. A claim of entitlement to TDIU is "part of," and not separate from, a claim of entitlement to an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board therefore may take jurisdiction over the issue of entitlement to a TDIU in this appeal. However, because a decision on the referred issue of entitlement to service connection for a cervical spine condition as well as the remanded issues of entitlement to a rating in excess of 20 percent for a lumbosacral spine condition and entitlement to service connection for right leg radiculopathy could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. 5. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. During the June 2021 hearing, the Veteran and his wife assert that the Veteran required assistance with most of his activities of daily living. This includes requiring help to get out of bed, get dressed, tying shoes, getting out of a chair, restroom aid, and meal preparation. As this issue was raised in connection with his claim to an increased rating for his lumbosacral strain, the Board assumes jurisdiction of this issue as part and parcel of the increased rating claim on appeal. Chavis, 34 Vet. App. 1. However, because a decision on the referred issue of entitlement to service connection for a cervical spine condition as well as the remanded issues of entitlement to a rating in excess of 20 percent for a lumbosacral spine condition and entitlement to service connection for right leg radiculopathy could significantly impact a decision on the issue of SMC, the issues are inextricably intertwined. A remand of the claim for SMC is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2021 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for his private providers including his provider in Holly Springs and his physical therapist. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Schedule the Veteran for a VA examination for his thoracic spine condition and right leg radiculopathy. The examiner must review the entire claims file. The examiner is asked to provide an option as to the following: a) Is the Veteran's thoracic spine condition related to service, including his in-service back injury? Why or why not? b) Is the Veteran's right leg radiculopathy due to his service-connected lumbosacral strain? Why or why not? c) Is the Veteran's right leg radiculopathy aggravated (worsened beyond its natural progression) by the service-connected lumbosacral strain? Why or why not? Provide separate rationales to support each individual opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran'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 Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 5. After completing all of the above, readjudicate the issue of entitlement to a TDIU. (Continued on the next page) 6. Provide the Veteran with appropriate development for SMC based on the need for aid and attendance and invite him to submit additional evidence in support of the claim. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.