Citation Nr: 18160417
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-21 060
Date: December 26, 2018	 

ORDER

New and material evidence having been received, the Veteran’s claim for service connection for lumbar spine degenerative disc disease is reopened.
New and material evidence having been received, the Veteran’s claim for service connection for coronary artery disease is reopened.
REMANDED
Entitlement to service connection for lumbar spine degenerative disc disease is remanded.
Entitlement to service connection for coronary artery disease is remanded.
Entitlement to service connection for renal insufficiency is remanded.

FINDINGS OF FACT
1. A November 1979 rating decision denied service connection for back pain.  The Veteran was notified of this decision and of his appellate rights by letter dated April 3, 1980.
2. The Veteran did not submit a notice of disagreement within one year of the mailing of notice of the November 1979 rating decision, and no new and material evidence was obtained or received by VA within this one-year time period. 
3. Additional evidence received since the November 1979 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for lumbar spine degenerative disc disease.
4. An April 2010 rating decision denied service connection for a heart condition.  The Veteran was notified of this decision and of his appellate rights by letter dated April 13, 2010.
5. The Veteran did not submit a notice of disagreement within one year of the mailing of notice of the April 2010 rating decision, and no new and material evidence was obtained or received by VA within this one-year time period. 
6. Additional evidence received since the April 2010 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for coronary artery disease.

CONCLUSIONS OF LAW
1. The November 1979 rating decision is final with regard to the claim for service connection for back pain.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
2. New and material evidence has been submitted to reopen the claim for service connection for lumbar spine degenerative disc disease.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The April 2010 rating decision is final with regard to the claim for service connection for a heart condition.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
4. New and material evidence has been submitted to reopen the claim for service connection for coronary artery disease.  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 May 1955 to July 1979.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision.
While the Agency of Original Jurisdiction has reopened the Veteran’s claim for service connection for coronary artery disease and lumbar spine degenerative disc disease per the January 2017 rating decision, the Board must determine of its own accord whether new and material evidence is of record to reopen the claims before it may consider the claims on their merits.  Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).
New and Material Evidence
A determination on a claim by the Agency of Original Jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). 
In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial.  See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). 
VA regulation defines “new and material evidence” as follows.  “New evidence” means evidence not previously submitted to agency decision makers, and “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.  38 C.F.R. § 3.156(a), Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In order to warrant reopening, the new evidence must neither be 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.  Id.; see Shade, 24 Vet. App. at 117 (holding that there is a “low threshold” for reopening). 
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).
If new and material evidence is received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final and will be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.”  38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”).
1. New and material evidence having been received, the Veteran’s claim for service connection for lumbar spine degenerative disc disease is reopened.
The Veteran’s claim for service connection for a back pain was originally denied in a November 1979 rating decision noting that an X-ray of the Veteran’s lumbar spine was normal with slight narrowing of lumbar disc space.  The Veteran was notified of this decision and of his appellate rights by letter dated April 3, 1980.  The Veteran did not appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.302.  Further, no new and material evidence was received within one year of the date of mailing of the rating decision.  See 38 C.F.R. § 3.156(b).  Accordingly, the November 1979 rating decision is final with regard to this claim.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 
The Veteran submitted a petition to reopen the claim for service connection for a lumbar spine disability in October 2016.  The Veteran underwent a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) in March 2017, which shows that he has a current diagnosis of lumbar spine degenerative disc disease.  This evidence is new as it was not of record at the time of the November 1979 rating decision and relates to an unestablished fact necessary to support the claim, namely a current disability.  Thus, the Board finds the evidence is both new and material.  See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122.  Therefore, the claim is reopened.
2. New and material evidence having been received, the Veteran’s claim for service connection for coronary artery disease is reopened.
The Veteran’s claim for service connection for a heart condition was originally denied in an April 2010 rating decision noting that this claimed disability was not incurred in or caused by his active service.  The Veteran was notified of this decision and of his appellate rights by letter dated April 13, 2010.  The Veteran did not appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.302.  Further, no new and material evidence was received within one year of the date of mailing of the rating decision.  See 38 C.F.R. § 3.156(b).  Accordingly, the April 2010 rating decision is final with regard to this claim.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 
The Veteran submitted a petition to reopen the claim for service connection for coronary artery disease in October 2016.  The Veteran’s claim for service connection demonstrates that he believes his coronary artery disease is due to his exposure to paint fumes, chemicals, and solvents.  This evidence was not of record at the time of the April 2010 rating decision and it relates to an unestablished fact necessary to support the claim, namely a link between the Veteran’s current disability and his active service.  Although the Veteran is not competent to establish a link between coronary artery disease and any toxic exposure, his statement meets the “low threshold” noted above to warrant getting an examination when viewed alongside his service treatment records which document such exposure and associated symptoms.  Thus, the Board finds the evidence is both new and material, and the claim is reopened.
REASONS FOR REMAND
1. Entitlement to service connection for lumbar spine degenerative disc disease is remanded.
As noted above, the Veteran underwent a Back (Thoracolumbar Spine) DBQ in March 2017.  The corresponding VA medical opinion that found the Veteran’s lumbar spine degenerative disc disease not related to his active service, is inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant’s medical history and must describe the disability in sufficient detail so that the Board’s evaluation of the disability will be a fully informed one).  The VA medical opinion fails to cite to the Veteran’s service treatment records that note his low back pain.  The VA medical opinion also does not provide any relevant medical literature to support the conclusion.  In essence, the VA medical opinion provides a conclusion and cites to two post-service medical records that show preserved range of motion of the spine and bulging disc at L3/4.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning).  Therefore, a remand is required to obtain an addendum VA medical opinion.
The March 2017 Back (Thoracolumbar Spine) DBQ shows that the veteran received chiropractic treatment for his lumbar spine for the past 20 years.  The Veteran’s claims folder does not contain these records.  A remand is required to allow VA to obtain authorization and request these records.
2. Entitlement to service connection for coronary artery disease; and
3. Entitlement to service connection for renal insufficiency are remanded.
VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83.  
The Veteran’s post-service medical treatment show that he has been diagnosed with coronary artery disease and renal insufficiency.  Further, the Veteran advised that he was exposed to paint fumes, chemicals, and solvents during his active service.  See October 2016 Application for Disability Compensation and Related Compensation Benefits.  Additionally, an April 1966 periodic medical examination shows that the Veteran worked in the paint shop for the past 11 years and that for the past two and a half years he has had shortness of breath and burning chest discomfort after exposure to paint spray.  Because there is at least an indication that the Veteran’s coronary artery disease and chronic renal insufficiency may be related to his active duty service, a VA examination and opinion must be provided to make an informed decision on this claim.  See McLendon, 20 Vet. App. at 83; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert).
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from January 2014 to the present, including all outstanding records from the Eglin Air Force Base (96th Medical Group).
2. Ask the Veteran to complete a VA Form 21-4142 for physicians and facilities adequately identified by the Veteran, including for any chiropractic treatment.  Make two requests for the authorized records from physicians and facilities adequately identified by the Veteran, including for any chiropractic treatment, unless it is clear after the first request that a second request would be futile.
3. After the above development is completed, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s lumbar spine degenerative disc disease is at least as likely as not related to an in-service injury, event, or disease.
In providing the opinion, the clinician must discuss:
(a.) A July 1975 service treatment record that shows the Veteran has had a back ache all day, that he has a slight increase in muscle tension to his right lower back, and that he was assessed with a paravertebral muscle strain.
(b.) The May 1979 Retirement Examination that demonstrates the Veteran has recurrent pain in his lumbar spine.
All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report.
4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his coronary artery disease.  
(a.) The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service paint, chemical, and solvent exposure.  
All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report.
5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his chronic renal insufficiency.  
(a.) The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service paint, chemical, and solvent exposure.  
All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report.

 
Shamil Patel
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Mussey, Associate 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

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.