Citation Nr: 1304837 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-42 327A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a back condition, also claimed as a lower back injury. 2. Entitlement to service connection for a pelvic injury, secondary to a back condition. 3. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, secondary to a back condition. 4. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from September 1978 to November 1978. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2008 and May 2009 rating decisions of Roanoke, Commonwealth of Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing testimony has been associated with the record. The request to reopen the claim of service connection for a back condition, also claimed as a lower back injury, is granted herein. The issue of service connection for a back condition is addressed in the REMAND below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The issues of entitlement to service connection for a pelvic injury, secondary to a back condition; peripheral neuropathy, bilateral lower extremities, secondary to a back condition; for an acquired psychiatric disorder to include PTSD and depression; and TDIU are also addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO decision of July 1980 denied the Veteran's claim of entitlement to service connection for a back condition. The Veteran was notified of his appellate rights, but did not timely appeal. 2. Evidence received since the Board decisions does relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back condition, also claimed as a lower back injury, and as such, this claim is reopened. CONCLUSIONS OF LAW 1. The July 1980 decision denying service connection for a back condition, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence having been received, the claim of entitlement to service connection a back condition, also claimed as a lower back injury is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has a statutory and regulatory 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the veteran must be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence. Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. In light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claim (reopening of the claim by the Board), any perceived lack of notice or development is not prejudicial. See 38 U.S.C.A. §§ 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). II. New and Material Evidence The Veteran seeks to reopen a previously denied claim of service connection for a back condition, also claimed as a lower back injury. In general, RO decisions are final. See 38 U.S.C.A. § 7105 (West 2002). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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 must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2012). To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). Prior to the current claim, the Veteran's claim for entitlement to service connection for a back condition was initially denied in a July 1980 rating decision by the RO. The RO determined that the service treatment records did not indicate any complaints or treatment for a back condition and that the Veteran's VA examination showed no abnormality in the lumbar spine. The Veteran did not appeal; accordingly, the July 1980 RO decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302. The evidence of record at the time of the July 1980 rating decision was service treatment records, a May 1980 VA examination, and a letter from the Veteran's private doctor, Dr. R. E. Street. The RO, however, noted that the Veteran's service treatment records were incomplete. In August 2007, the Veteran requested that his previously denied claim of service connection for a back condition be reopened. Subsequently, this issue was denied by the RO in September 2008. The Veteran timely appealed this decision. The evidence submitted since the July 1980 RO decision includes numerous post-service private and VA treatment records indicating continuous treatment for the back. These records indicate the Veteran has been treated for a back condition and has reported back pain since service. He is currently diagnosed with lumbar spondylolysis without myelopathy, sacroilitis and myofascial pain. The Veteran also testified before the Board in October 2012 that he injured his back on two occasions during basic training. He further stated that the first time he sought treatment for the back was within one year of separation from service. The medical evidence above is "new" because it was not previously considered by the Board and is not redundant of evidence previously considered. It is "material" because it constitutes medical evidence that the Veteran's current back condition is possibly related to his military service, which was the reason service connection was denied previously. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." Here, as will be discussed in further detail in the REMAND section below, the newly submitted medical evidence satisfies the "low threshold" necessary to trigger VA's duty to provide the Veteran with a VA medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, since there is new and material evidence, the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence has been received, the claim for entitlement to service connection for a back condition, also claimed as a lower back injury, is reopened and, to this extent only, the appeal is granted. REMAND A remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disorders, such as arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. Back condition and pelvic injury and peripheral neuropathy of the bilateral lower extremities, secondary to a back condition The Veteran alleges that he injured his back during active military service while performing basic training. He testified that he fell over a cement bench and landed on his head, neck, and shoulders. He said he was transported and treated at Moncrief Army Community Hospital. Following this incident, the Veteran stated he experienced sudden pain in his back while carrying gas cans of water. The Veteran believes his current back condition is the result of his injuries during service. With respect to his pelvic injury and peripheral neuropathy of the bilateral lower extremities, the Veteran asserts that his back condition has caused or aggravated these conditions. The Board notes that there are pertinent, outstanding records relating to the claims. Particularly, the Board recognizes the Veteran identified the Moncrief Army Community Hospital as the medical facility where he was treated following his first injury. However, there is no indication whether these records were obtained or whether a negative reply was given. Therefore, another attempt should be made on remand. The Board also finds that based the Veteran's testimony of injury during service, his current diagnosis, and treatment for a back condition, he should be afforded another VA examination to obtain an etiological opinion. The Veteran testified at the October 2012 Board hearing that he would be willing to go to a VA examination if provided the opportunity. Lastly, the Veteran claims that his pelvic injury and peripheral neuropathy of the lower extremities are secondary to his back condition. The Board notes that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the Veteran is not yet service connected for his back condition; however, in the event that the actions taken upon remand result in a grant of service connection for a back condition, the Veteran should be afforded a VA examination to determine whether his back condition caused or aggravated the current pelvic injury and/or his peripheral neuropathy of the lower extremities. Acquired psychiatric disorder The Veteran claims that his diagnosed acquired psychiatric condition, to include PTSD and depression, are related to his military service. Specifically, the Veteran testified at the October 2012 Board hearing that prior to service he had witnessed a murder which traumatized him. He stated that because of this traumatic event prior to service he "had a reaction to the rifle when he got into service" during his basic training. As a result, he stated he was placed in a motivational camp to deal with this issue. He also testified that he felt threatened and was physically attacked by another serviceman while in service. The records indicate the Veteran was first treated for his psychiatric conditions in 2008 at the VA medical center. In October 2008, the Veteran was diagnosed with depressive disorder and exhibited symptoms of PTSD. Based on the Veteran's lay statements, it appears to indicate that the psychiatric condition may have pre-existed his military service. In such case, the question is whether the Veteran's psychiatric condition was aggravated by service. If a disability is found to have pre-exist service, then service connection may be predicated only upon a finding of aggravation during service. See Paulson v. Brown, 7 Vet. App. 466, 468 (1995). Under current law, in cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See VAOPGCPREC 3-2003; 69 Fed. Reg. 25178 (2004); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to be aggravated by service when there is an increase in disability during service, unless there is a specific finding that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (2012). The Court has held that intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, aggravation occurs when the underlying condition has worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Furthermore, it is also unclear whether the Veteran has a diagnosis for PTSD under DSM-IV criteria. The VA treatment records only indicate the Veteran exhibited symptoms of PTSD. In order to establish service connection for PTSD, the following is required: (1) medical evidence showing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that a VA examination has not been provided for regarding this claim. Therefore, based on evidence of treatment and complaints of a psychiatric disorder(s) prior to and during service, treatment of a psychiatric condition post-service, and the Veteran's current diagnosis, an examination and opinion are needed to clarify the Veteran's diagnosis and to determine whether any acquired psychiatric disorders were caused by or aggravated during service. See 38 U.S.C.A. §5103A (d). TDIU Additionally, the Board notes that an assignment of TDIU is dependent, in part, on a calculation of the overall disability percentage that a Veteran has for his service- connected disabilities, causes for his occupational impairment, and permanency of the disabilities. As awards of service connection could affect the Veteran's eligibility for TDIU, the claim for entitlement to TDIU appear to be inextricably intertwined with the other claims on appeal. See generally Holland v. Brown, 6 Vet. App. 443 (1994); Vettese v. Brown, 7 Vet. App. 31 (1994); Parker v. Brown, 7 Vet. App. 116 (1994). Therefore, the Board is deferring action on the issue of entitlement to TDIU until after the Board has the opportunity to adjudicate the issue remaining issues on appeal. The Board also notes that the most recent post-service treatment record is dated July 2009. Therefore, any outstanding treatment records, VA and private, must be obtained and associated with the claims file prior to appellate review. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Contact the Veteran and/or his representative and ask him to identify all VA and non-VA clinicians who have treated him for acquired psychiatric disorders and a back condition since July 2009. Once signed releases are received from the Veteran, obtain all private and VA treatment records (including those identified by the Veteran at the October 2012 Board hearing, particularly from the Moncrief Army Community Hospital) which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Once all outstanding records have been obtained, if any, the Veteran should be afforded a VA examination before an appropriate specialist regarding his claimed back condition, also claimed as a lower back injury. The examiner is asked to determine whether the Veteran's back condition is at least as likely as not that any such disability manifested during, or as a result of, active military service. The examiner is asked to comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's pelvic injury and peripheral neuropathy of the lower extremities is secondary to the back condition found to be present, meaning proximately due to, the result of, or aggravated by a back condition. The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. Rationale for the opinion rendered should be provided. Additionally, the examiner should consider the Veteran's in-service treatment records, VA treatment records, and any private treatment records. Furthermore, the examiner should also discuss the Veteran's lay statements regarding history and chronicity of symptomatology when discussing the offered opinion. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Once all outstanding records have been obtained, if any, schedule the Veteran for a VA mental status examination to determine the nature and etiology of any psychiatric disorders show to be present. The examiner is asked to determine whether the Veteran has PTSD according to the DSM-IV criteria and, if so, whether it is a consequence of the stressors he experienced during service. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric conditions. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied, and identify the stressor(s) supporting the diagnosis. i) On the basis of the clinical record, can it be concluded with clear and unmistakable certainty that any currently diagnosed psychiatric disability preexisted his entry into active military service, and (ii) If a psychiatric disorder clearly and unmistakably preexisted service, can it be concluded with clear and unmistakable certainty that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. Rationale for the opinion rendered should be provided. Additionally, the examiner should consider the Veteran's in-service treatment records, VA treatment records, and any private treatment records. Furthermore, the examiner should also discuss the Veteran's lay statements regarding history and chronicity of symptomatology when discussing the offered opinion. The clear and unmistakable evidentiary standard is an onerous one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Atkins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Clear and unmistakable evidence is evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanserson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v Principi, 3 Vet. App. 310, 313-14 (en banc)). However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims, considering all applicable laws and regulations. If the claims are denied, the AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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. 2011). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs