Citation Nr: 22038136 Decision Date: 07/05/22 Archive Date: 07/05/22 DOCKET NO. 17-30 953 DATE: July 5, 2022 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a back disability, to include cervical and thoracic myelopathy, status post spinal cord surgery, is remanded. Entitlement to service connection for a bilateral feet disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the January 2005 rating decision that denied service connection for chronic low back pain; this rating decision became final. 2. Additional evidence received since the final January 2005 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for a back disability. CONCLUSIONS OF LAW 1. The January 2005 rating decision denying the Veteran's claim of entitlement to service connection for chronic low back pain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to December 1986 and from May 1988 to October 2004. The matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated September 2015 and January 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). For the sake of efficiency and consistent with Board policy, the Board had merged those appeal streams into one. This does not prejudice the Veteran in any way. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. The hearing transcript is of record. The Board has recharacterized the Veteran's claim for depression more broadly to an acquired psychiatric disorder in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Additionally, the Board has recharacterized the Veteran's claim for cervical and thoracic myelopathy, status post spinal cord surgery, more broadly to a back disability, to include cervical and thoracic myelopathy, status post spinal cord surgery, for the same reasons. Moreover, it has recharacterized the Veteran's claim for bilateral bunions, acquired, with degenerative arthritis (claimed as "feet") to bilateral feet disabilities for the same reasons. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability; the appeal is granted to this extent only. The Veteran's claim of entitlement to service connection for chronic low back pain was denied in a January 2005 rating decision on the basis that mere pain does not constitute a disability for VA purposes. The Veteran did not appeal the January 2005 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b). Accordingly, the January 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a claim to reopen in April 2015. The RO denied the claim to reopen in a September 2015 rating decision on the basis that there was no new and material evidence received sufficient to reopen the claim. This does not affect the finality of the January 2005 rating decision. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for a back disability. New evidence received since the last final denial in January 2005 includes updated VA and private medical treatment records, and the Veteran's lay testimony at the January 2021 Board hearing, that the Board finds provides sufficient basis to reopen. Additionally, recent case law has expanded the concept of a disability for VA purposes to include pain resulting in functional impairment causing decreased earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, as new and material evidence has been received, the Board finds that the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Although the agency of original jurisdiction (AOJ) did not consider the merits of the appeal, the Board finds that, as it is remanding the claim, there is no prejudice to the Veteran. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include cervical and thoracic myelopathy, status post spinal cord surgery, is remanded. 2. Entitlement to service connection for a bilateral feet disability is remanded. The Veteran contends that his current back and bilateral feet disabilities stem from an in-service car accident in 1995. He contends that he injured his back and experienced radiating symptoms. The Veteran also clarified that his contention is that his bilateral feet disability consists of radiculopathy or neuropathy symptoms. See January 2021 Board hearing. The Board finds that a remand is necessary to obtain a VA medical examination. The Veteran's VA and private medical treatment records indicate past complaints of or treatment for back and feet disabilities. Evidence to include the Veteran's lay testimony at the January 2021 Board hearing indicates a plausible nexus to service. Review of the record indicates that the Veteran has not been provided with a VA examination to assess the nature and etiology of any disabilities of the back or related bilateral feet disabilities during the pendency of this claim. In light of the presence of a possible disability and a plausible nexus to service, the Board finds that the "low threshold" requirement under McLendon, 20 Vet. App. 79 (2006), is met, and the Veteran should be afforded a VA examination. 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that his psychiatric symptoms, to include depression and social isolation, were incurred in service as his physical condition began to deteriorate or are secondary to his claimed disabilities or his service-connected disabilities of hypertension, heart disease, renal disease or diabetes mellitus, type II. The Board finds that a remand is necessary to obtain a VA medical examination. The Veteran's VA and private medical treatment records indicate past complaints of or treatment for an acquired psychiatric disorder. Evidence to include the Veteran's lay testimony at the January 2021 Board hearing indicates a plausible nexus to service or service-connected disabilities. Review of the record indicates that the Veteran has not been provided with a VA examination to assess the nature and etiology of any acquired psychiatric disorder. In light of the presence of a possible disability and a plausible nexus to service, the Board finds that the "low threshold" requirement under McLendon, 20 Vet. App. 79 (2006), is met, and the Veteran should be afforded a VA examination. 4. Entitlement to a TDIU is remanded. As the outcome of the Veteran's claims for service connection may impact his claim of entitlement to TDIU, the latter claim is inextricably intertwined with the former claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, adjudication of the TDIU claim must be deferred until the RO has adjudicated the Veteran's remanded service connection claims. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's back disability, to include cervical and thoracic myelopathy, status post spinal cord surgery. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All testing deemed necessary must be conducted. The examiner must opine whether any back disability is approximately at least as likely as not etiologically related to, in whole or in part, an in-service injury, event, or disease, to include a 1995 motor vehicle accident. If the examiner does not find a current diagnosis, the examiner should address whether there is evidence of a functional loss disability, to include whether considering pain. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Following completion of directives #1-2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's bilateral feet disabilities. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All testing deemed necessary must be conducted. The examiner must opine on the following: (a) Is any bilateral feet disability approximately at least as likely as not etiologically related to, in whole or in part, an in-service injury, event, or disease, to include a 1995 motor vehicle accident? If the examiner does not find a current diagnosis, the examiner should address whether there is evidence of a functional loss disability, to include whether considering pain. (b) Is any bilateral feet disability approximately at least as likely as not proximately due to or the result of a back disability, if a back disability is found to be service connected? (c) Is any bilateral feet disability approximately at least as likely as not aggravated (increased in severity) beyond its natural progress by a back disability, if a back disability is found to be service connected? A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 4. Following completion of directives #1-3, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All testing deemed necessary must be conducted. The examiner must opine on the following: (a) Is any acquired psychiatric disorder approximately at least as likely as not etiologically related to, in whole or in part, an in-service injury, event, or disease? (b) Is any acquired psychiatric disorder approximately at least as likely as not proximately due to or the result of service-connected disabilities, to include hypertension, heart disease, renal disease, and diabetes mellitus, type II, or, if they are found to be service-connected, any back or bilateral feet disabilities? (c) Is any acquired psychiatric disorder approximately at least as likely as not aggravated (increased in severity) beyond its natural progress by service-connected disabilities, to include hypertension, heart disease, renal disease, and diabetes mellitus, type II, or, if they are found to be service-connected, any back or bilateral feet disabilities? In rendering this opinion, the examiner should address the Veteran's lay statements, to include the Veteran's testimony at the January 2021 Board hearing. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.