Citation Nr: 1414310 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-32 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a low back disability. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for headaches. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from March 2002 to August 2002, and from November 2002 to April 2006. This matter comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which determined that new and material evidence had not been presented to reopen claims of entitlement to service connection for lower back pain, headaches, and PTSD. In February 2012, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge who is rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The issues of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, and whether new and material evidence has been presented to reopen a claim of entitlement to service connection for PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed decision, dated in May 2008, the RO denied claims for service connection for low back pain, and headaches. 2. The evidence received since the RO's May 2008 decision, which denied claims for service connection for low back pain, and headaches, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating either of the claims. CONCLUSION OF LAW New and material evidence has not been received since the RO's May 2008 decision which denied claims for service connection for low back pain, and headaches; the claims for service connection for a low back disability, and headaches, are not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material The Veteran asserts that he has presented new and material evidence to reopen claims of entitlement to service connection for a low back disability, and headaches. In May 2008, the RO denied claims for service connection for low back pain, and headaches. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002). In April 2010, the appellant filed to reopen the claims. In June 2010, the RO determined that new and material evidence had not been presented to reopen either of the claims. The appellant has appealed. As an initial matter, the Board notes that it has recharacterized the Veteran's claim pertaining to low back pain in the broadest terms possible, as a claim for a low back disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Unappealed rating decisions by the Board are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002). When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of an appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2013). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a); and that continuity of symptomatology only relates to the specified chronic diseases). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be considered competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The most recent and final denial of these claims was in May 2008. Therefore, the Board must determine if new and material evidence has been submitted since that time. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). At the time of the RO's May 2008 decision, the Veteran's primary argument was that he had injured his low back, and sustained a head injury, after falling about 18 feet during service in about May 2003 during service in Iraq. The Board notes that he also asserted that he had a bilateral wrist injury as a result of this fall, and that he had to be evacuated to Germany for treatment. In November 2011, the RO granted service connection for residuals of injury, bilateral wrist sprains. The evidence of record at the time of the RO's May 2008 rating decision included some of the Veteran's service treatment records. In this regard, in May 2008, the RO issued a memorandum in which it determined that all procedures to obtain the Veteran's complete service treatment records for the period between November 2002 and April 2006 had been correctly followed, and had been exhausted, and that any additional efforts would be futile. See 38 C.F.R. § 3.159(d) (2013). The available service treatment records showed that beginning in May 2003, the Veteran was treated for elbow/wrist/forearm injuries at Landstuhl Regional Medical Center. The records indicate that between 2004 and 2006, he received treatment for tobacco abuse, and a right ankle disability; none of these records noted a head injury, headaches, or low back symptoms/diagnosis. A post-deployment health assessment, dated in January 2006, showed that the Veteran indicated the following: he had been deployed to Mosul, Iraq in February 2005, his health had stayed about the same or got better during this deployment, he did not have to spend one or more nights in a hospital as a patient during his deployment, and he had gone to sick call four times during this deployment. During his deployment, he did not have the following: muscle aches, back pain, "swollen, stiff or painful joints," headaches, "dizziness, fainting, or light headedness," or difficulty remembering. His only concern was an exacerbation of hemorrhoids. A separation examination report was (and is) not of record. The relevant post-service medical evidence consisted of VA reports, dated between 2006 and 2008. This evidence included notations of history of mild traumatic brain injury consistent with post-concussive syndrome," "possible post-concussion migraine or tension type headache," headache, closed head injury, and low back pain. An X-ray report for the lumbar spine, dated in June 2007, contained an impression noting that there was no definitive abnormality. At the time of the RO's May 2008 rating decision, the Veteran's service treatment reports did not contain evidence of headaches or a low back disability, nor did the claims file contain a medical opinion in support of either of the claims. The rating action conceded that there was evidence of a headache disorder but did not find evidence of a nexus to service. With respect to the back, it was noted that there was no evidence of a current back disorder and no evidence linking any such disorder to service. The evidence received since the RO's May 2008 rating decision consists of VA reports, dated between 2006 and 2014. Some of this evidence is duplicative. Of the evidence which is not duplicative, it shows that the Veteran was primarily treated for psychiatric and substance abuse symptoms. A May 2010 VA progress note shows that he denied having headaches, but that he complained of lower back symptoms following an inservice fall of about 18 feet in Iraq. There was no relevant diagnosis. Reports, dated in April 2011 and November 2012, show that the Veteran denied having headaches. An April 2013 VA progress note contains notations of low back pain, and "headaches related to post-concussion syndrome?" This evidence which was not of record at the time of the RO's May 2008 decision, is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. However, the Board finds that this evidence is not material. In this case, at the time of the May 2008 RO decision, the Veteran's service treatment records did not show any relevant treatment for low back symptoms, or headaches. The earliest post-service medical evidence of a low back disorder, or headaches, was dated in April 2007, which is about one year after separation from service, and there was no medical evidence of a nexus between a low back disability, or headaches, and the Veteran's service. None of the submitted evidence shows the existence of a low back disability, or headaches, prior to April 2007, nor does it contain any material medical evidence of a nexus between a low back disability, or headaches, and the Veteran's service. To the extent that it may show continued treatment for headache or low back symptoms, records related to continued treatment are generally insufficient to reopen a claim for service connection. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). To the extent that an April 2013 VA progress note contains a notation of "headaches related to post-concussion syndrome?" this notation is equivocal in its terms, appears to be "by history" only, and the record contained a similar notation at the time of the RO's May 2008 decision. See VA progress note, dated in December 2007 (noting "possible post-concussion migraine or tension type headache"). In addition, the previous denial conceded that there were current headaches but no nexus, and none of these records related the Veteran's headaches to service. Moreover, although the previous denial was at least in part on the basis of no current disability, these additional records are cumulative of previous records and at best contain findings or complaints of back pain without a corresponding diagnosis, and are therefore not considered material evidence to warrant reopening the claim for service connection for a low back disorder. In summary, the new evidence is not material, and does not raise a reasonable possibility of substantiating either of the claims. The only other pertinent evidence received since the May 2008 denial of the claims consists of the Veteran's oral and written testimony. However, the Veteran's own testimony and assertions as to a causal connection between the claimed conditions and his service are duplicative and not new and material. His testimony is essentially unchanged from when he filed his initial claim in 2007. These statements are therefore not new and material evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence); see also Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211 (1993) (noting that lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). The Board therefore finds that the additional evidence is not both new and material and does not raise a reasonable possibility of substantiating either of the claims. 38 C.F.R. § 3.156. The claims are therefore not reopened. Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). II. The Veterans Claims Assistance Act of 2000 VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence, in a letter dated in April 2010. The letter also informed the Veteran of the bases for the May 2008 RO denials of his claims, and the specific evidence that is required to substantiate the element or elements needed for service connection that were found insufficient in that prior final decision. Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter accordingly addressed all notice elements. Nothing more was required. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA records. As the Board has determined that new and material evidence has not been presented, a remand for examinations and/or etiological opinions is not required to decide the claims. See 38 U.S.C.A. § 5103A(f) (West 2002); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). In February 2012, the Veteran was provided an opportunity to set forth his contentions with regard to his claims with the undersigned Acting Veterans Law Judge. See 38 U.S.C.A. § 7107(c). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that an RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2012 hearing, the Acting Veterans Law Judge identified the issues on appeal. Information was solicited regarding the onset and cause of his disabilities. The testimony did not reflect that there were any outstanding medical records available that would support either of his claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence not having been submitted, the claims of entitlement to service connection for a low back disability, and headaches, are not reopened. To this extent, the appeal is denied. REMAND With regard to the claim involving PTSD, by way of background, the Board notes that during his hearing, held in February 2012, the Veteran testified that he participated in combat, specifically, that "during the invasion" (of Iraq, i.e., presumably in 2003), "we got scudded quite - - quite often." He further testified that he frequently had to get into his MOPP (Mission Oriented Protective Posture) gear at that time. VA progress notes show that the Veteran has reported that he participated in combat, and that during service he saw dead bodies being eaten by dogs, was fired at, fired his weapon, and "watched vehicles in front of him get blown up." See e.g., VA progress notes, dated in August 2006 and June 2007. In May 2010, the RO issued a memorandum in which it concluded that there was insufficient information regarding the Veteran's claimed stressor to warrant an attempt to verify them with the U.S. Army and Joint Services Records Research Center (JSRRC). The Board notes that there is no record to show that the Veteran ever responded to requests for additional information (VA Form 21-0781), sent in January and March of 2008. In addition, a "report of contact" (VA Form 119), dated in May 2008, shows that the RO attempted to contact the Veteran by phone, but that they "got a recording saying that the person is not reachable." In June 2010, the RO determined that new and material evidence had not been received to reopen the claim. A March 2011 VA PTSD examination report shows that the examiner concluded that the Veteran does not have PTSD. In April 2010, the Veteran filed to reopen his claim for service connection for PTSD. The medical evidence includes diagnoses of depressive disorder, substance-induced mood disorder, and various types of substance abuse. The Court has held that, when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, whatever it is, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the foregoing, the Board finds that the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, has been raised by the record. Id. As the Veteran's claim for PTSD which was denied in May 2008 did not include any other acquired psychiatric disorder, the Board finds that a "new and material" analysis is not appropriate for the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, and it should be analyzed on a direct basis. The Board notes that to the extent that the Veteran may have substance abuse, direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs (a substance abuse disability) is precluded for purposes of all VA benefits for claims filed after October 31, 1990). See VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998)). However, service connection for substance abuse is not prohibited on a secondary basis. See 38 C.F.R. § 3.310 (2013); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). As the issues on appeal involve both an acquired psychiatric disorder (other than PTSD), and PTSD, these are considered to be inextricably intertwined, and they must therefore be adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, must be remanded for additional due process considerations. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Specifically, the agency of original jurisdiction (AOJ) has not considered whether the Veteran's diagnoses of acquired psychiatric disorders, other than PTSD, are related to service. See 38 C.F.R. § 20.903(b) (2013) (requiring Board to "notify the appellant and his or her representative" of its intent to consider a law not considered by RO, where consideration "could result in denial of the appeal"); see also McBurney v. Shinseki, 23 Vet. App. 136, 138 (2009). In addition, when reviewing claims where a VA examination has been performed, the Board must make a determination as to whether the examination report from the examination is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. Here, in March 2011, the Veteran was afforded a PTSD examination. The only diagnosis was "posttraumatic stress disorder is not found." However, this examination report did not discuss any acquired psychiatric disorders other than PTSD. Accordingly, as the Board has determined that the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, has been raised by the record, and that it is intertwined with the new and material claim for PTSD, on remand the Veteran should be afforded another psychiatric examination in which the examiner provides an opinion as to whether or not the Veteran has an acquired psychiatric disorder, other than PTSD, that is due to his service. Prior to the adjudication of the claim, a credibility determination should be made. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that as the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is separate and distinct from the claim that new and material evidence has been presented to reopen a claim for service connection for PTSD, the adequacy of the March 2011 VA medical examination would not be mooted upon a determination that the Veteran was not entitled to a reopening of that claim. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is hereby notified that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Issue a corrective VCAA notice with regard to the issue of entitlement to service connection for an acquired psychiatric disorder (other than PTSD). 2. After completing the development discussed in the first two paragraphs of this remand, schedule the Veteran for a psychiatric examination to determine his correct diagnosis(es) and whether he has an acquired psychiatric disorder, other than PTSD. The Veteran's claims files should be provided to the examiner in connection with the examination, and the examiner should state that the Veteran's C-file has been reviewed. All necessary studies or tests, including appropriate psychological testing and evaluation, is to be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that the Veteran has an acquired psychiatric disorder, other than PTSD, that had its onset during service, or that is otherwise related to such service. If, and only if, the examiner determines that the Veteran has an acquired psychiatric disorder, other than PTSD, that had its onset during service, or that is otherwise related to his service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that the Veteran has a substance abuse disorder due to that acquired psychiatric disorder. The report of examination should include the complete rationale for all opinions expressed. If an opinion cannot be expressed without resort to speculation, the reviewer must discuss why such is the case and whether there is additional evidence that would aid in providing the requested opinions. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After conducting any other development deemed appropriate, readjudicate the issues on appeal. If either of the benefits sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond. The record should then be returned to the Board for appellate review. 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. 2013). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs