11-15 737, 11-15 737

October 2007 RO denial of depressive disorder service connection became final as no timely appeal or new evidence was submitted.
Post-2007 evidence included April 2009 treatment notes attributing depression to chronic pain from the lumbar spine disorder.
October 2016 joint motion for remand (JMR) instructed further development and new examinations, citing need to assess nexus and functional impairment.
Board previously denied an increased rating for lumbosacral strain and cervical spine and psychiatric claims; Court subsequently vacated with a JMR order.
Section remand directs scheduling VA examinations for lumbar spine, cervical spine, and acquired psychiatric disability, and readjudication.
The Board reopened the psychiatric claim as new and material evidence was found, but other issues are remanded for development.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Increased rating for lumbosacral strain	Veteran seeks higher than 40%.	VA has not established entitlement to higher rating based on current findings.	Remanded for VA examination to determine functional equivalent of ankylosis or incapacitating episodes.
Cervical spine disability due to service or secondary to lumbosacral strain	Claimant seeks service connection; nexus to service-connected back disorder asserted.	Record lacks adequate medical nexus; no VA exam since 2004 with inadequate rationale.	Remanded for VA cervical spine examination to assess causation and aggravation.
New and material evidence to reopen for acquired psychiatric disability	Evidence post-2007 supports reopening.	Evidence insufficient to reopen; no new nexus evidence.	Reopened; the claim is granted to the extent of reopening.
Service connection for acquired psychiatric disability (PTSD/depressive disorder) as secondary to lumbosacral strain	Depression related to chronic pain from lumbar disability; seek service connection.	No current competent nexus established in record.	Remanded for VA psychiatric examination to assess causation and aggravation.

Cox v. Brown, 5 Vet. App. 95 (1993) (presumption of credibility for new and material evidence when evaluating reopening claims)
Justus v. Principi, 3 Vet. App. 510 (1992) (credibility of new evidence presumed in reopening analysis)
Evans v. Brown, 9 Vet. App. 273 (1996) (duty to review new and material evidence only from the latest denial)
Shade v. Shinseki, 24 Vet. App. 100 (2010) (new and material evidence can trigger reopening even if not proving all elements at the outset)
Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (relied upon for guidance on reopening claims and nexus considerations)
DeLuca v. Brown, 8 Vet. App. 202 (1995) (regarding DeLuca considerations for functional impairment and objective findings)
McLendon v. Nicholson, 20 Vet. App. 79 (2006) (need for VA examination when evidence indicates possible causal connection)