Citation Nr: 23040403 Decision Date: 07/24/23 Archive Date: 07/24/23 DOCKET NO. 19-34 839 DATE: July 24, 2023 ORDER New and material evidence has not been received to reopen the claim for service connection for a low back disability, and therefore, the petition to reopen is denied. REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Since the prior final denial for service connection for a low back disability, new and material evidence has not been received. CONCLUSION OF LAW The criteria to reopen the claim for service connection for a low back disability have not been met. 38?U.S.C. §?5108;?38?C.F.R. §?3.156.?? REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2007 to April 2010, to include service in Iraq from March 2008 to March 2009. See VA Form DD-214. These claims come before the Board of Veterans' Appeals (Board) from September 2017 and January 2019 rating decisions. In the April 2020 VA Form 9 (Substantive Appeal) the Veteran requested a hearing before the Board. In June 2022, the Veteran, through his representative, withdrew that hearing request. The Board notes that the agency of original jurisdiction (AOJ) requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West,?218 F.3d 1378?(Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matter decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See?Allday?v. Brown,?7?Vet. App.?517, 527?(1995). Claim to Reopen Legal Criteria Generally, rating decisions that are not timely appealed are final.?38?U.S.C. §?7105.? An 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.?See?38?C.F.R. §?3.156.????? 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).????? Factual Background and Analysis The Veteran's claim for a low back disability was denied in a May 2015 rating decision because there was no nexus between the Veteran's currently diagnosed back disability (chronic musculoligamentous strain) and his active duty service. The Veteran filed a timely Notice of Disagreement with that rating decision, and the claim was readjudicated in a September 2017 Statement of the Case (SOC); once again, the AOJ found no nexus between the Veteran's low back disability and his active duty service. The Veteran did not complete a timely VA Form 9 (Substantive Appeal) in response to the SOC, and therefore, the decision is final. At the time of the September 2017 SOC, the pertinent evidence of record included the Veteran's statement in connection with his claim that he began to experience back pain in 2009, service treatment and personnel records, and a May 2015 spine examination (which also includes a statement that the Veteran's back pain began in 2009 not in connection with any injury). In November 2017, the Veteran, through his representative, filed a Supplemental Claim requesting reopening of the claim for service connection for a low back disability; in a cover letter sent with that claim, the representative indicated that "there is new and material evidence that can be obtained from . . . Huntington VAMC 2017 - present." The Board has reviewed additional VA treatment records associated with the record and finds they merely show continued treatment for the Veteran's low back pain and a statement that his back pain has existed since 2009. See, e.g., April 2019 VA treatment record (noting the Veteran reported back pain for the past 10 years). The Board finds this evidence of continued treatment for a condition already known to exist and the Veteran's statement that he has had back pain since 2009 does not constitute new evidence; the Veteran's reported in-service back pain and evidence of his current disability were both of record at the time of the prior denial, and therefore, this evidence is not new and relevant but rather is cumulative and redundant of evidence of record at the time of the previous denial. In the September 2022 brief, the Veteran's representative referenced indications of alleged injuries which were purportedly documented in the Veteran's service treatment and personnel records; notably, the Veteran's service treatment and personnel records were associated with the claims file at the time of the prior denial and no additional service treatment or personnel records were received after the prior denial. Thus, this evidence is also not new. As such, new and material evidence has not been received to reopen the claim for service connection for a low back disability, and therefore, the petition to reopen must be denied. REASONS FOR REMAND Increased Rating for PTSD The Veteran is claiming a rating in excess of 50 percent is warranted for his service-connected PTSD. VA treatment records dated June 2017 reflect the Veteran was educated on mental health services available at his local Vet Center, the Veteran was very interested, and the clinician provided a referral for services. The Board notes that Vet Centers are community-based counseling centers, which are separate facilities from VA Medical Centers, and that their records are stored separately and must be requested separately. On remand, the AOJ must take all appropriate steps to obtain outstanding Vet Center records and associate them with the evidence of record. The record also notes that the Veteran had been receiving private mental health treatment at Oasis Behavioral Health, yet none of these private records are associated with the claims file. While this case is in remand status, VA should contact the Veteran and request that he complete and return an authorization to allow VA to attempt to obtain those records. In this regard, the Veteran is reminded that the duty to assist is not a one way street and that if he desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. See Wood, 1 Vet. App. at 193. The Veteran's most recent last VA mental health examination performed for compensation purposes is dated August 2017 and this examination reflects the Veteran's symptoms were consistent with "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." In support of his claim for an increased rating, the Veteran submitted a private January 2022 mental health examination, which characterizes his symptoms as consistent with "total occupational and social impairment." Based on the above evidence, the Board finds a more recent examination is required on remand to obtain the current level of severity of the Veteran's disability and to resolve the discrepancy between the January 2022 private examination and the other evidence of record. Entitlement to TDIU In the September 2022 brief, the Veteran's representative stated that the Veteran's psychiatric symptoms rendered him unable to obtain employment other than part-time work for a close friend. The Board finds this raises the issue of entitlement to TDIU as part and parcel of the increased rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The record does not contain a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and therefore, on remand, the AOJ should contact the Veteran and request he complete and return this form. The Veteran is informed that if he fails to furnish this information to VA within one year of the date of the request, his claim may be considered abandoned. See 38?C.F.R. §?3.158. The AOJ should also request that the Veteran complete and return VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) so that VA may obtain information from his current and/or prior employers. Upon receipt of the above-referenced forms, the AOJ should conduct any necessary development it deems necessary, to include verification of current/past employment and/or income history. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board.? See?Bell v. Derwinski, 2?Vet. App. 611 (1992). The Veteran is informed he has the right to submit additional evidence and argument on the matters the Board has remanded.? See Kutscherousky v. West, 12?Vet. App.?369 (1999). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records and associate them with the claims file. 2. Take all appropriate steps to obtain the Veteran's outstanding Vet Center mental health records in accordance with VA regulation. If the AOJ is unable to obtain these records/it is determined they do not exist, documentation of such must be associated with the claims file. 3. Contact the Veteran and request that he complete and return an authorization to allow VA to attempt to obtain relevant private medical records from Oasis Behavioral Health and any other identified private providers. Upon receipt of an authorization, attempt to obtain identified records in accordance with VA regulation. 4. Contact the Veteran and request that he complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The Veteran is informed that if he fails to furnish a complete VA Form 21-8940, his claim may be considered abandoned. See 38?C.F.R. §?3.158. 5. Upon receipt of the above-referenced forms relating to TDIU, the AOJ should conduct any development it deems necessary, to include, if appropriate, verification of current/past employment and/or income history. (Continued on the next page) ? Afford the Veteran a mental health examination to determine the current severity of his PTSD. The examiner must complete all portions of this form and document the Veteran's reported symptoms. The examiner should perform any psychological testing deemed necessary. 6. Readjudicate. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.