Citation Nr: 0810393 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 07-02 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for residuals of a cervical spine fracture with quadriparesis and if so whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for a lumbosacral disorder and if so whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder and if so whether service connection is warranted. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from April 1954 to August 1955. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reopened final disallowed claims for service connection for a cervical spine injury, a lumbosacral disorder, and post-traumatic stress disorder, and denied the claims on the merits. In December 2003 and December 2005 rating decisions and in a November 2006 statement of the case, the RO captioned the veteran's claims for residuals of a spinal injury as "fractured vertebrae with quadriparesis lumbosacral strain" and "cervical spine injury." Based on a review of the veteran's contentions and service and post service medical records, the Board concludes that the veteran has been diagnosed with residuals of fractures of the cervical spine, lumbosacral strain, and degenerative changes of the lumbosacral spine. The veteran's quadriparesis is most often noted as associated with the cervical spine fractures. Therefore, the Board restated the claims on appeal as shown above. The veteran testified before the Board by videoconference from the RO in October 2007. A transcript of the hearing is associated with the claims file. The issue of service connection for cervical and lumbosacral spine disabilities and an acquired psychiatric disorder to include post-traumatic stress disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. In September 2003, the RO denied a petition to reopen the claims for service connection for disabilities of the cervical and lumbar spine and for an acquired psychiatric disorder to include post-traumatic stress disorder because new and material evidence had not been received. The veteran did not express timely disagreement, and the decision became final. 2. Since September 2003, new and material evidence has been received that was not previously considered by adjudicators, is not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a final disallowed claim for service connection for residuals of a cervical spine injury. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 20.302 (2007). 2. New and material evidence has been received to reopen a final disallowed claim for service connection for a lumbosacral spine disorder. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ §§ 3.104, 3.156(a), 20.302. 3. New and material evidence has been received to reopen a final disallowed claim for service connection for an acquired psychiatric disorder to include post-traumatic stress disorder. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ §§ 3.104, 3.156(a), 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting the veteran's petitions to reopen final disallowed claims for service connection for residuals of a cervical spine injury, a lumbosacral spine disorder, and an acquired psychiatric disorder, to include post-traumatic stress disorder. To this extent only, the Board is granting the full benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In a June 1998 rating decision and in an August 2000 statement of the case, the RO denied service connection for disabilities of the cervical and lumbosacral spine because service medical records did not show residuals of an injury or a chronic disability of the spine in service. Post- service medical records did not show symptoms of a spinal disorder prior to hospitalization at a private facility in March 1964. The RO also denied service connection for post- traumatic stress disorder because there was no evidence to verify the occurrence of the contended traumatic events in service. The veteran did not perfect a timely appeal and the decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. 3.104, 20.302. 20.1103. In July 2002, the veteran petitioned to reopen the final disallowed claims. However, in September 2003, the RO denied the petition because new and material evidence had not been received. The veteran did not express timely disagreement, and the decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. 3.104, 20.302. In December 2004, the veteran submitted correspondence directly to the Board seeking to reopen the claims. The Board referred the correspondence to the RO. Since the last final disallowance of the claims in September 2003, the RO and the Board received the following evidence: seven letters from the veteran to the RO or Board that included copies of family correspondence, a November 2007 letter from the veteran's brother, testimony at an October 2007 Board hearing, and additional service personnel records. The evidence addressed the claimed traumatic events and injuries sustained in service and post-service medical treatment. The RO and Board also received the following additional medical evidence: VA outpatient treatment records from November 2001 to March 2004, an undated VA psychologist examination report; and November 2006 letter from a private neuropsychologist who had treated the veteran for many years at a VA facility. The veteran did not waive RO consideration of the evidence. See 38 C.F.R. § 19.31, 19.37 (2007). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In cases such as this one where the claim to reopen is filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence is 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In December 2005, the RO reopened the claims for service connection for cervical and lumbosacral spine disabilities and for an acquired psychiatric disorder, to include post- traumatic stress disorder, but denied service connection on the merits. The Board concludes that some evidence received since the final disallowance of the claims is new because it was not previously considered by VA adjudicators. This evidence includes family correspondence, the veteran's brother's statement, the veteran's hearing testimony, some service personnel records, and medical reports dated after 2001. The Board concludes that some of the new evidence is material as it is relevant to continuity of symptoms of disease or illness from the time of discharge from service to 1964 that may be related to a spinal injury. Some medical evidence is also relevant to the diagnosis and causes of the veteran's post-traumatic stress disorder. Finally, the veteran stated at her hearing that she had been receiving Social Security Administration benefits since the 1960s. No evidence from that adjudication has been requested and is not in the file. For the purposes of new and material evidence analysis, the credibility of the evidence is presumed. The Board concludes that the new evidence is material because it is relevant to the unestablished relationship of the veteran's current disabilities to events in service and raises a reasonable possibility of substantiating the claims. Therefore, as new and material evidence has been received, and to this extent only, the Board grants the petitions to reopen final disallowed claims for service connection for residuals of a cervical spine injury, a lumbosacral spine disorder, and an acquired psychiatric disorder to include post-traumatic stress disorder. ORDER The petition to reopen a final disallowed claim for service connection for residuals of a cervical spine injury is granted. The petition to reopen a final disallowed claim for service connection for lumbosacral spine disorder is granted. The petition to reopen a final disallowed claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder is granted. REMAND In the opinion of the Board, additional development is necessary. The veteran contends that she sustained a spinal injury in service and that she experienced increasingly severe symptoms related to the injury after service in the 1950s and early 1960s. The veteran also contends that her post-traumatic stress disorder is the result of several traumatic events including a sexual assault in service. In a September 2005 letter and in an October 2007 Board hearing, the veteran stated that she had received outpatient treatment and prescription medications at a VA Medical Center (VAMC) in Lake City, Florida, in the early 1960s prior to hospitalization at a private facility in March 1964. In a November 2007 letter, the veteran's brother also stated that he was aware that her sister was ill in the autumn of 1963 and had taken custody of her children at that time. He also stated that the veteran received VA treatment including prescription medications at the Lake City VAMC prior to hospitalization in March 1964. The RO requested records of treatment at the Lake City VAMC for treatment after May 1964 and used the veteran's current and maiden names but not her then-current married name. No additional records were recovered. As the veteran contends that VA records from Lake City VAMC prior to March 1964 would show treatment for the residuals of an injury in service, an additional request for records using an earlier time and all the names potentially used by the veteran is necessary to decide the claim. The veteran stated at the Board hearing that she received benefits from the Social Security Administration (SSA) for unidentified disabilities starting in 1965. No SSA medical and adjudicative records are in the file. As these records may be relevant to all disabilities on appeal, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c) (3) (West 2002); 38 C.F.R. § 3.159(c) (2) (2007); see also Diorio v. Nicholson, 20 Vet. App. 193 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, a request for available records and association of any records received with the claims file is necessary prior to a decision. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). None of the medical examiners who provided an opinion on the nexus between the claimed in-service injuries and her current disabilities noted a review of the service medical and personnel records. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current; (2) evidence establishing that he suffered an event, injury or disease in service; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. 38 U.S.C.A. § 5103A (d) (2) (West 2002), 38 C.F.R. § 3.159 (c) (4) (2007); see Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, additional medical opinions and examinations are necessary to decide the claims. With respect to the spinal disabilities, a medical review of the service records and other evidence of record is necessary to determine if the treatment of symptoms of lumbar strain and hyperextension of the cervical spine, with no specific reference to an injury, is sufficient to establish a relationship to service. An examination may be conducted if deemed necessary by the examiner. With respect to the diagnosis of PTSD, the veteran contends that she experienced several traumatic events in service including distress during transportation to her first permanent duty station, and in subsequent military assignments and training as a lone female in an Army artillery unit. She also contends that she was the victim of a sexual assault and subsequent inaction by her military superiors. Although medical providers have diagnosed PTSD related to a sexual assault, none have reviewed the service medical or personnel records or provided an opinion whether the events described by the veteran other than the assault caused or contributed to her disorder. An additional VA medical examination and opinion following a review of the service and personnel and medical records is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Request from the VAMC in Lake City, Florida, all records of treatment of the veteran using all the veteran's above captioned names from January 1960 to May 1964. Associate any records received with the claims file. 2. Request from the Social Security Administration all medical and adjudicative records for the veteran using all above captioned names for disability benefits awarded at any time. Associate any records obtained with the claims file. 3. Then, provide the claims file to an examiner appropriately qualified in the area of spinal disabilities. Request that the examiner review the claims file including service medical records and note the review of the claims file in the report. Request that the examiner provide an opinion whether any current disability of the cervical or lumbar spine is at least as likely as not (50 percent or greater possibility) related to a claimed military training injury in a swimming pool or any other aspect of service. Schedule the veteran for an examination if deemed necessary by the examiner. 4. Schedule the veteran for a psychiatric examination by an appropriately qualified VA examiner. Provide the examiner with the claims file and request that the examiner review the claims file including the veteran's service and medical records, contentions expressed in correspondence and hearing testimony, and the comments and opinions of previous mental health providers. Request that the examiner provide an opinion whether any psychiatric disability found is at least as likely as not (50 percent or greater possibility) related to a sexual assault in service; transportation, military assignments, and claimed discriminatory treatment in service; or any other aspect of service. 5. Then, readjudicate the claims for service connection for residuals of a cervical spine fracture including quadraparesis, a lumbosacral spine disorder, and an acquired psychiatric disorder to include post-traumatic stress disorder. If any decision remains adverse to the veteran, provide the veteran and her representative with a supplemental statement of the case and an opportunity to respond. Thereafter, return the case to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs