Citation Nr: 18160506
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-49 762
DATE:	December 26, 2018
ORDER
New and material evidence having been received, the previously, finally denied service connection claim for lumbar spine degenerative disc disease, status post lumbar fusion (lumbar spine disability), is reopened.
REMANDED
Entitlement to service connection for a lumbar spine disability is remanded.
Entitlement to a disability rating greater than 20 percent for fibromyalgia is remanded.
Entitlement to an initial disability rating greater than 30 percent from August 1, 2010 to March 29, 2011 and from May 1, 2012 for a total left knee replacement (left knee disability) is remanded.
Entitlement to a disability rating greater than 30 percent prior to March 31, 2014 and from August 1, 2014 for a total right knee replacement (right knee disability) is remanded.
Entitlement to a disability rating greater than 20 percent for cervical spine degenerative disc disease (cervical spine or neck disability) is remanded.
Entitlement to a disability rating greater than 10 percent for temporomandibular joint (TMJ) dislocation (TMJ disability) from May 1, 2012.
Entitlement to a disability rating greater than 30 percent for depressive disorder not otherwise specified (NOS) (psychiatric disability) is remanded.
FINDINGS OF FACT
1.  In April 2000, the Veteran filed multiple pre-discharge, Separation Examination Pilot Program (SEPP) claims, including service connection claims for a lumbar spine disability (claimed as lumbar degenerative disc disease) and fibromyalgia.  In a June 2000 rating decision, in pertinent part, the Agency of Original Jurisdiction (AOJ) granted a claim phrased as entitlement to service connection for fibromyalgia (claimed as arthritis of both hands, right hip pain, generalized osteoarthritis, lumbar spine joint disease, cervical / neck / shoulder pain, chest pain, and carpal tunnel syndrome).  The AOJ notified the Veteran accordingly on July 22, 2000.  She did not file a notice of disagreement (NOD) or submit new and material evidence within one year.
2. In a June 2006 statement, the Veteran filed an informal service connection claim for a thoracolumbar spine disability (claimed as T-12 disc fracture and bulging L4-L5 discs with sciatic nerve pain of the legs). In April 2007, the AOJ issued a rating decision denying the claim, phrased as service connection for back pain claimed as fractured T-12 and bulging disc L4-L5, and notified the Veteran accordingly.  She did not file an NOD or submit new and material evidence within one year.
3. Since the April 2007 rating decision, VA has received evidence of current lumbar spine diagnoses, and the Veteran’s lay statements describing continuous lumbar spine symptoms and treatment since service, which raises a reasonable possibility of substantiating the service connection claim for a lumbar spine disability.
 
CONCLUSIONS OF LAW
1. The June 2000 and April 2007 rating decisions are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302.
2. The criteria for reopening the previously, finally denied service connection claim for a lumbar spine disability have been met.  38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1976 to June 2000.  
In a September 2016 rating decision issued during the pendency of this appeal, the AOJ granted the claim for entitlement to a total disability rating based on individual unemployability (TDIU) from June 26, 2009.  The AOJ properly found that this was a complete grant of that appellate issue (as the effective date coincides with when the Veteran stopped working) and removed it from appellate status.  Likewise, in the September 2016 rating decision, the AOJ granted the claim for entitlement to a temporary total rating for right knee surgery requiring convalescence from March 31, 2014 to August 1, 2014.  The AOJ properly found that this was a complete grant of that issue and removed it from appellate status.  However, the AOJ also noted that the separate issue of entitlement to an increased rating for the service-connected right knee disability (during the portion of the appeal period other than when the AOJ awarded a temporary total rating) remained on appeal.  The Board has rephrased the increased rating claim for a right knee disability accordingly.
In a January 2013 NOD, the Veteran requested a Regional Office (RO) hearing.  In October 2015, the RO notified her that it had scheduled the hearing for December 2015.  However, she subsequently withdrew her RO hearing request in an October 2015 statement.  (She declined an optional Board hearing in her October 2016 VA Form 9.)
In January 2013, the Veteran submitted a VA Form 21P-8416 (medical expense report) referencing medical expenses incurred for treatment at various non-VA facilities in 2012.  Although the Veteran reported her medical expenses on a standardized VA form, this specific form pertains to individuals receiving non-service connected pension, which she does not.  It appears that the AOJ has not recognized this submission in any way.  Although this could perhaps be construed as indicating her desire to file a claim for a non-service connected pension, she should be aware her VA disability benefits far exceed what would be payable under a pension program.  It is unclear, then, what her intention was in submitting this form.   Nothing further can be done since she did not indicate any intention to file a claim, nor was the form appropriate to the benefits she receives.  
The Board thoroughly reviewed all the evidence in the Veteran’s VA file.  In every decision, the Board must provide a statement of the reasons and bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  Id.  
Pertinent regulations for consideration were provided in the September 2016 Statement of the Case (SOC) and will not be repeated here in full.  
 
For the reasons discussed below, the previously, finally denied service connection claim for a lumbar spine disability is reopened and remanded, and all increased rating claims on appeal are remanded.
Petition to Reopen
In April 2000, the Veteran filed multiple pre-discharge claims, including service connection claims for a lumbar spine disability (claimed as lumbar degenerative disc disease) and fibromyalgia.  In a June 2000 rating decision, in pertinent part, the AOJ granted a claim phrased as entitlement to service connection for fibromyalgia (claimed as arthritis of both hands, right hip pain, generalized osteoarthritis, lumbar spine joint disease, cervical / neck / shoulder pain, chest pain, and carpal tunnel syndrome).  The AOJ notified the Veteran accordingly on July 22, 2000.  She did not file an NOD or submit new and material evidence within one year, and the June 2000 rating decision became final.
In June 2006, the Veteran filed an informal service connection claim for a thoracolumbar spine disability. In April 2007, the AOJ issued a rating decision denying the claim, phrased as service connection for back pain claimed as fractured T-12 and bulging disc L4-L5, and notified her accordingly.  The AOJ reasoned in part that in July 2006 and May 2006, the Veteran reported that she had been involved in a post-service motorcycle accident that resulted in a low back injury. The AOJ also found that she had no current diagnosis.  She did not file an NOD or submit new and material evidence within one year, and the April 2007 rating decision became final.
The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits.  Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).  The initial question before the Board, therefore, is whether new and material evidence has been received, regardless of how the RO characterized the issue.   
New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010).  In determining whether newly-received evidence is new and material, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Newly submitted evidence may be material if it provides a more complete picture of the circumstances surrounding the origin of the Veteran’s disability.  See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  
In this case, the Board finds that new and material evidence has been received to reopen the previously, finally denied service connection claim for a lumbar spine disability.  Since the April 2007 rating decision, VA has received evidence of current lumbar spine diagnoses, to include a compression deformity, disc bulges at L4-5 and L5-S1, degenerative changes, and lumbar spine neuritis.  See generally private treatment records.  In addition, since the 2007 rating decision, VA has received the Veteran’s competent and presumptively credible lay statements describing continuous lumbar spine symptoms and treatment since service.  See, e.g., February 2012 VA spine examination; July 2012 NOD; lay statement in release received in July 2012.
In summary, the evidence summarized above raises a reasonable possibility of substantiating the service connection claim for a lumbar spine disability.  As this evidence was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim, it is new and material.  38 C.F.R. § 3.156.  Accordingly, the claim is reopened.  As discussed further below, the claim must be remanded for development prior to a merits decision.



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REASONS FOR REMAND
The appeal is remanded for the following development.
Increased Rating Claims
-	Current VA examinations: Each of the increased rating claims on appeal are remanded for new VA examinations to assess the current state of those respective service-connected disabilities.  The most recent VA examinations were as follows: June 2010 (psychiatric disability and right knee); March 2011 (left knee); August 2011 (fibromyalgia / joints); and October 2012 (cervical spine and TMJ).  Since those times, the Veteran has asserted worsening symptoms.  Such statements and the passage of many years since the most recent VA examinations warrant remands of each of these claims to obtain updated medical evaluations.  Also, the Board notes that August 2011 C&P documents expressly cite a VA fibromyalgia / joints examination conducted on August 2, 2011.  However, the examination report itself is not of record.  The AOJ must locate the missing VA examination report and re-associate it with the claims file.

-	Private treatment records: As the increased rating claims must be remanded for current VA examinations, the AOJ should invite the Veteran to submit updated releases needed for the AOJ to request all current non-VA / private treatment records regarding ongoing treatment of the service-connected disabilities relevant to the remanded increased rating claims.  
Service Connection for a Lumbar Spine Disability
-	Military medical facility outpatient treatment records: Lay and medical evidence of record references post-service, outpatient medical treatment at military medical facilities at Eglin Air Force Base (AFB) and Hurlburt Field beginning soon after the Veteran’s June 2000 retirement from service.  However, the earliest post-service treatment records from those facilities in the file are from approximately 2006. (The Board also notes that the Veteran’s VA vocational rehabilitation file includes contemporaneous references to treatment at those military facilities as early as 2001 to 2002.) The AOJ should re-request post-service outpatient treatment records from those military facilities from the Veteran’s June 2000 retirement from service through June 2004, i.e., her first recorded post-service lumbar spine injury.  Treatment records from this specific period may corroborate her contentions regarding direct service connection and/or continuity of symptomatology since service.

-	Private treatment records: The Veteran reported private medical treatment for her lumbar spine disability beginning in 2000, very soon after her retirement from service.  The AOJ obtained private treatment records from various private / non-VA providers who treated her lumbar spine disability.  However, the earliest private treatment records in the claims file that reference lumbar spine complaints or treatment are from approximately 2004. The AOJ specifically should re-request private treatment records from the Veteran’s June 2000 retirement from service through June 2004, her first recorded post-service lumbar spine injury.  Private treatment records from this period may corroborate her contentions regarding direct service connection and/or continuity of symptomatology since service.

-	Retirement examination: In a May 2012 VA Form 21-526, the Veteran stated that she had a separation or retirement physical examination on February 1, 2000 at Hurlburt Field, Florida.  The AOJ obtained Volumes One through Five of the Veteran’s service treatment records.  However, the Board’s review of those records indicates that the referenced February 2000 retirement examination records are not in the file.  The AOJ should attempt to obtain the identified retirement examination records, which may substantiate her contentions regarding direct service connection and/or continuity of symptomatology since service.

-	Addendum VA Medical Opinion: An addendum VA medical opinion is needed to consider additional evidence obtained pursuant to this remand. 
 
The matters are REMANDED for the following action:
1. Locate and re-associate with the claims file the complete August 2, 2011 VA fibromyalgia / joints examination report(s). 
2. Request from all appropriate sources all service medical records pertaining to the Veteran’s retirement examination conducted on or about February 1, 2000 at Hurlburt Field, Florida (see May 2012 VA Form 21-526).  Document all attempts to obtain these records, including any negative responses.  If any separation examination records are unavailable, then prepare an appropriate memorandum for the file.
3. After obtaining completed release forms from the Veteran, request non-VA / private treatment records from the following providers: 
(a.) all current non-VA / private providers who have continued to treat her service-connected right and left knee disabilities, psychiatric disability, cervical spine disability, TMJ, and fibromyalgia.  (See 2016 SOC for summary of private / non-VA treatment records presently of record.)
(b.) all outstanding private treatment records pertaining to the Veteran’s low back disability from Dr. A. Stein, P.J. Pandolfi, and all other non/VA private medical providers who treated her lumbar spine disability from June 2000 (retirement from service) to June 2004 (first recorded post-service spinal injury).  
Document any negative responses.  If any requested treatment records are unavailable, then notify the Veteran and her representative and give them the opportunity to submit the records.  If additional, relevant care is referenced in these private treatment records, then attempt to obtain records of that care as well.
4. Re-request from all appropriate sources the Veteran’s post-service outpatient treatment records from all U.S. military medical facilities in Hurlburt Field, Florida, and Eglin AFB from June 2000 (retirement from service) to June 2004 (first recorded post-service spinal injury).  Document all attempts to obtain these records, including any negative responses.  If any requested records are unavailable, then prepare an appropriate memorandum for the file.
5. DO NOT PROCEED WITH THE INSTRUCTIONS BELOW UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE.
6. Schedule the Veteran for a VA spine examination to obtain a medical opinion.  The examiner must note his or her review of the complete claims file.  The examiner must answer the following question, with full supporting rationales:
Is it at least as likely as not (50 percent probability or more) that the Veteran’s current lumbar spine disability is the result of her multiple documented in-service lumbar spine problems during active service? Please expressly consider: multiple references to lumbar spine complaints and treatment in service treatment records, e.g., May 1992 note by neurosurgeon diagnosing lumbar disc bulge based on imaging; Veteran’s multiple lay reports of continuous lumbar spine symptoms since service, e.g., April 2000 pre-discharge service connection claim for a lumbar spine disability, and May 2000 pre-discharge VA examination noting complaints of low back pain, with tenderness to palpation noted on examination; any medical evidence obtained after this remand showing complaints of and/or treatment for lumbar spine symptoms from June 2000 (retirement from active service) to June 2004 (first recorded post-service spinal injury after a boating accident).
If any findings are not possible without resort to mere speculation, then please explain why.
7. Schedule VA examinations with appropriate examiners to address the current nature, symptoms, and severity of the following service-connected disabilities:
(a.) right and left knees;
(b.) cervical spine;
(c.) TMJ disability;
(d.) fibromyalgia;
(e.) depression NOS. 
	The VA cervical spine examiner specifically must address medical evidence suggesting possible neurological abnormalities associated with that disability, including cervical radiculopathy of the upper extremities.  See private treatment records.
If any VA examiner concludes that any identified current symptoms or impairments are not due to the relevant, examined service-connected disability, then the examiner must explain which symptoms or impairments are / are not due to the service-connected disability, if possible.  
If any findings are not possible without resort to mere speculation, then the VA examiner(s) must explain why.
 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Janofsky, Associate Counsel

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