BVA Case 23-3939: Back

In August 2020,the Board determined that new and material evidence had been received to reopen the claim for service connection for a cervical spine disorder, and the Board remanded that issue,as well as entitlement to an increased rating for a right shoulder disability and TDIU, 6 for new VA exams.

at 7739-42, which VA denied in a May 2017 rating decision because the evidence submitted was not new and material, R.

6 The Board concluded that TDIU has been found to be raised in the context of the [v]eteran's claim for an increased rating for a right shoulder disability.

The Board noted that the TDIU claim is derivative of the right shoulder increased rating claim,[so] the Board will consider whether 7 The veteran also attempted to appeal the 30% rating assigned for his right shoulder disability and the effective date chosen as the date of increase, R.

In the March 8,2023,decision on appeal,the Board denied an effective date prior to April 22,2016,for service connection for a cervical spine disability.

After acknowledging that VA had constructive possession of VA treatment records that were created prior to the expiration of the one-year appeal period of the December 2001 rating decision, the Board noted that it must therefore determine whether these records constituted new and material evidence because,if so,the December 2001 rating decision did not become final.

The Board concluded that although the July 25,2002,treatment report was new, it was not relevant, stating that [t]o be 'relevant' in the context of 38 C.

Because there was already a diagnosis of record, the Board found that the July 25,2002[,]record showing 'possible arthritis of the neck'was not material to the claim, so the December 2001 and January 2009 rating decisions are final.