Citation Nr: 18124052
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-26 457
DATE:	August 3, 2018
ORDER
New and material evidence having not been received, the claim of entitlement to service connection for a right shoulder disability is denied.
REMANDED
Entitlement to a rating in excess of 40 percent for service-connected status-post discectomy, chronic low back pain with degenerative disc disease (DDD) is remanded.
Entitlement to an initial compensable rating for service-connected scar associated with status-post discectomy of lumbar spine with DDD is remanded.
Entitlement to a rating in excess of 10 percent for service-connected left leg radiculopathy is remanded.
Entitlement to an initial rating in excess of 10 percent for service-connected right leg radiculopathy is remanded.
Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded.
Entitlement to service connection for a left knee disability is remanded.
Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected status-post discectomy of lumbar spine with DDD, is remanded.
Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.
FINDINGS OF FACT
1. In a September 2008 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for right shoulder disability.  The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance.
2. Additional evidence received since the September 2008 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for a right shoulder disability.
CONCLUSIONS OF LAW
1. The September 2008 rating decision denying service connection for right shoulder disability is final.  38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008).
2. New and material evidence has not been received to warrant reopening of the claim of service connection for a right shoulder disability.  38 U.S.C. §§ 5107, 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1977 to March 1981 with subsequent service in the Army Reserves.
This matter comes before the Board of Veterans’ Appels (Board) on appeal from rating decisions dated March 2010, May 2012, July 2014, and October 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.
In his VA Form 9 dated July 2014, the Veteran requested a hearing before a Veterans Law Judge.  However, in August 2017, the Veteran, through his attorney, withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e).
1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disability.
In general, decisions of the RO that are not appealed in the prescribed time period are final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017).  Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.
For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers.  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 (2017).
To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).
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 submitted 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, to include by triggering the Secretary's duty to assist.  Id. at 118.
The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In a September 2008 decision, the RO denied the Veteran’s original claim of entitlement to service connection for a right shoulder disability.  The Veteran did not appeal the decision.  As new and material evidence was not received within one year of the decision, it became final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  Under these circumstances, the RO's September 2008 rating decision is final as to the Veteran’s claim of entitlement to service connection for a right shoulder disability, and is not subject to revision on the same factual basis.  See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103.
The Veteran now seeks to reopen his claim.  As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in September 2008.  After reviewing the record, the Board finds that new and material within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for a right shoulder disability.
The evidence associated with the Veteran's claims file at the time of the last final denial in September 2008 included service treatment records (STRs), VA and private treatment records, and the statements of the Veteran.
At the time of the last final denial, the Veteran contended that he developed a right shoulder during his military service.  See the Veteran’s claim dated March 2008.  The Veteran served on active duty from April 1977 to March 1981.  The Veteran’s STRs do not document any complaints of or treatment for a right shoulder disability.
A July 2005 VA treatment record noted the Veteran’s report of chronic pain in the right shoulder for the past 20 years.  The Veteran stated that he injured his right shoulder in his military service and had experienced difficulty with lifting since that time.  See the VA treatment record dated July 2005.  Magnetic resonance imaging (MRI) of the right shoulder performed in September 2005 revealed a tear in the region of insertion of the supraspinatus tendon/rotator cuff, a tear involving the proximal portion of the biceps tendon, and impingement on the musculotendinous juncture by hypertrophic changes involving acromioclavicular joint.
As described above, the Veteran’s claim of entitlement to service connection for a right shoulder disability was denied in a final September 2008 rating decision.  The Veteran filed a claim to reopen, which was denied in a March 2010 rating decision.  This appeal follows.
After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for a right shoulder disability has not been received.
The evidence associated with the claims file subsequent to the prior final decision in September 2008 includes the Veteran's VA and private treatment records, as well as lay statements of the Veteran.
Medical evidence has been added to the record indicating that the Veteran continues to suffer from right shoulder pain.  See the VA treatment records dated December 2009.  Moreover, the Veteran’s assertions concerning the incurrence, etiology, and continuing symptomatology concerning his claimed right shoulder disability, although new, are essentially cumulative of evidence already of record.
The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010).  In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran’s testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a veteran’s testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  Id; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).  However, as indicated above, in the current appeal the Veteran has not provided evidence in support of nexus between the diagnosed right shoulder disability and his military service, which was not previously considered in prior decision.  Accordingly, his contentions made during the current appeal are cumulative and may not be deemed to be both new and material.  Shade, supra.
As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative.  See 38 C.F.R. § 3.156 (2017).  The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for a right shoulder disability is not reopened.
REASONS FOR REMAND
1. Entitlement to a rating in excess of 40 percent for service-connected status-post discectomy, chronic low back pain with DDD is remanded.
2. Entitlement to an initial compensable rating for service-connected scar associated with status-post discectomy of lumbar spine with DDD is remanded.
3. Entitlement to a rating in excess of 10 percent for service-connected left leg radiculopathy is remanded.
4. Entitlement to an initial rating in excess of 10 percent for service-connected right leg radiculopathy is remanded.
The evidence of record shows that the Veteran received ongoing VA treatment for his service-connected lumbar spine DDD, radiculopathy of the right and left lower extremities, and scar status-post discectomy of the lumbar spine.  However, only VA treatment records dated through February 2013 have been associated with the Veteran’s VA claims file.  As such, upon remand, the AOJ should take appropriate steps to obtain any outstanding VA treatment records from February 2013.
The Board additionally observes that the Veteran was last afforded a VA examination as to his service-connected lumbar spine, radiculopathy disabilities, and scar status-post discectomy of the lumbar spine in May 2012.  As these matters are being remanded, the Board finds that the Veteran should be afforded updated VA examinations with respect to his service-connected DDD of the lumbar spine, radiculopathy of the bilateral lower extremities, and scar status-post discectomy of the lumbar spine.
5. Entitlement to a TDIU due to service-connected disabilities is remanded.
The matter of entitlement to a TDIU is inextricably intertwined with the increased rating claims.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other).  Therefore, this claim must also be remanded.
6. Entitlement to service connection for a left knee disability.
The Veteran has asserted entitlement to service connection for a left knee disability, which he contends was incurred during his military service.  See, e.g., the brief of the Veteran’s attorney dated June 2018.  In support of this contention, the Veteran’s attorney directs the Board’s attention to STRs which document an injury to the left ankle in August 1980 and a report of lower extremity pain in February 1981.  Although these records do not document any complaint or diagnosis specific to the left knee, the Board notes that the Veteran is competent to report left knee pain.
Post-service treatment records dated in June 2008 document the Veteran’s report of left knee pain.  VA treatment records dated in January 2010 noted the Veteran’s report that he feels his knee is slipping out of place.  A notation of left knee arthralgia was made at that time.
The Veteran has not been afforded a VA examination as to the current claim.  As such, the Board finds that this matter must be remanded so he may be afforded a VA examination to determine whether he suffers from a left knee disability that is due to his military service.  See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2017) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).
7. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected status-post discectomy of lumbar spine with DDD is remanded.
The Veteran asserts entitlement to service connection for obstructive sleep apnea, which he contends was incurred in his military service.  See the Veteran’s claim dated June 2014.  He alternatively contends that he developed sleep apnea as a result of the pain medications he has been prescribed for his service-connected lumbar spine disability.  See, e.g., the written brief of the Veteran’s attorney dated June 2018.
The Board observes that, in the October 2014 rating decision, the AOJ indicated that VA treatment records note a diagnosis of sleep apnea.  This was apparently based upon a review of VA treatment records dated from April 2014 to July 2014.  Notably, these VA treatment records are not contained in the claims file.  As indicated above, the Veteran’s VA treatment records dated from February 2013 are not of record.  As such, this matter should be remanded in order to obtain the Veteran’s outstanding VA treatment records, including those records from April 2014 to July 2014 identified in the October 2014 rating decision.
If, upon remand, the AOJ does confirm that the Veteran’s treatment records contain a diagnosis of sleep apnea, the Veteran should be afforded a VA medical opinion to address the etiology of the claimed disability.
8. Entitlement to service connection for PTSD.
In a September 2017 decision, the AOJ denied the Veteran’s claim of entitlement to service connection for PTSD.  In the June 2018 written brief filed by the Veteran’s attorney, he expressed disagreement with the denial of service connection for PTSD.  As, the AOJ has not issued a statement of the case (SOC) as to this claim, and a remand is therefore warranted for issuance of a SOC on this issue.  See 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

The matters are REMANDED for the following action:
1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran since February 2013.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the claims file.
2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current left knee disability.  Access to the Veteran’s claims file should be made available to the examiner for review in connection with the examination.
The examiner should identify all disabilities of the Veteran’s left knee.
The examiner should then provide an opinion as to whether it is at least as likely as not that any current left knee disability was incurred in the Veteran’s active duty service.  In providing the opinion, the examiner should consider the relevant evidence of record, including service treatment records documenting an injury to the left ankle in August 1980 and a report of lower extremity pain in February 1981, which the Veteran claims was when he sustained an in-service knee injury.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so.
3. If the AOJ determines that the Veteran’s treatment records document a diagnosis of sleep apnea, arrange to obtain from an appropriate VA examiner an opinion addressing the etiology of diagnosed sleep apnea based on claims file review, if possible.  If an examination is deemed necessary in the judgment of the physician designated to provide the addendum opinion, one should be arranged.
With respect to the diagnosed sleep apnea, the examiner should render an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability:
(a) had its onset in service or is otherwise medically related to in-service injury or disease; or, if not, 
(b) was either caused OR is or has been aggravated by the medications prescribed to treat the service-connected lumbar spine disability.
If aggravation by service-connected disease is found, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.
In addressing the above, the examiner should consider and discuss all pertinent evidence including lay evidence.  In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion.
The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided.
4. The Veteran should be afforded a VA examination in order to determine the extent of his service-connected status-post discectomy of the lumbar spine with DDD and radiculopathy of the right and left lower extremities.  Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination.
The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016).
The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day.  In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors.
In rendering his/her findings, the examiner should identify any evidence of neurological manifestations due to the service-connected lumbar spine disability to include the service-connected radiculopathy of the right and left lower extremities.  The examiner must identify the specific nerves involved or seemingly involved and describe the degree of impairment as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis.
All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.
5. The Veteran should also be afforded a VA examination in order to determine the extent of his service-connected scar status-post discectomy of the lumbar spine.  The examination should be conducted in accordance with the current disability benefits questionnaire.
In addition, the examiner should address the impact of the scar status-post discectomy of the lumbar spine upon the Veteran’s industrial activities including his ability to obtain and maintain substantially gainful employment.
All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.
6. Separately, issue an SOC addressing the Veteran’s entitlement to service connection for PTSD.  In connection therewith, the Veteran and his attorney should be provided with appropriate notice of his appellate rights.  If, and only if, the Veteran perfects an appeal should that matter be returned to the Board.

 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. K. Buckley, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.