Citation Nr: 1632152 Decision Date: 08/12/16 Archive Date: 08/23/16 DOCKET NO. 15-19 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim for entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right hip disorder. 3. Entitlement to service connection for a stomach disorder. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder and depressive disorder. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for a left leg disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. Rideout-Davidson, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Army from August 1961 to August 1964. He also had a period of active duty for training from April 1975 to August 1975 and subsequent service with the Idaho National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2016. A transcript of that hearing has been associated with the claims file. In its February 2013 decision, the RO indicated that the scope of the Veteran's claim was PTSD. However, a review of the claims file reveals various diagnoses of psychiatric disorders. Therefore, the Board has recharacterized the issue of entitlement to service connection for posttraumatic depression to entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder and depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (noting that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This appeal was processed using Virtual VA and the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for an acquired psychiatric disorder and a stomach disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim for service connection for a low back disorder was denied in a January 1965 rating decision; the Veteran did not appeal that decision or submit new and material evidence within one year. 2. The evidence received since the final January 1965 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disorder. 3. The Veteran has been shown to have a low back disorder that manifested in or is otherwise causally or etiologically related to his military service. 4. The Veteran has been shown to have right hip disorder that manifested in or is otherwise causally or etiologically related to his military service. 5. At the June 2016 hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wanted to withdraw his appeal for the issue of entitlement to service connection for bilateral hearing loss. 6. At the June 2016 hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wanted to withdraw his appeal for the issue of entitlement to service connection for a left leg disorder. CONCLUSIONS OF LAW 1. The January 1965 rating decision that denied service connection for a low back disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2015). 2. The evidence received subsequent to the January 1965 rating decision is new and material and the claim for service connection for low back disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. A low back disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. A right hip disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 5. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 7105 (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 6. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for a left leg disorder. 38 U.S.C.A. § 7105 (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Given the favorable disposition to reopen and the Veteran's claim for service connection for a low back disorder and grant the Veteran's low back and right hip disorder claims, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. There is no prejudice to the Veteran. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). I. Low Back Disorder The RO initially denied the Veteran's claim for service connection for a low back disorder in a January 1965 rating decision. At that time, the RO noted that the evidence failed to establish that the Veteran had a current low back diagnosis. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit evidence within one year. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the January 1965 rating decision is final. The Veteran filed an application to reopen his claim for service connection for a low back disorder in November 2010. The RO issued a rating decision in February 2013; denying the Veteran's low back claim due to a lack of new and material evidence, which the Veteran timely appealed. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Shade, 24 Vet. App. at 118. The Board notes that since the January 1965 decision, the evidence of record contains a VA medical center record which diagnoses the Veteran with disc degeneration and spondylosis. The evidence received since the final January 1965 rating decision also includes medical opinion statements from the Veteran's private medical providers opining that the Veteran's low back disorder is related to his military service. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran's claim for service connection for a low back disorder. Turning to the merits of the claim, the Board finds that, after a review of the evidence of record, service connection is warranted for a low back disorder. The Veteran's service treatment records show that there was no low back disorder noted upon enlistment to the military. The Veteran was then treated for low back strain in August 1962 and February 1963. X-rays were taken in February 1963 due to recurrent back pain, but no significant abnormalities were seen. The Veteran's separation examination in July 1964 is silent for any back disorder, however, the Veteran has offered credible testimony at his June 2016 hearing, that he did not report continued back pain upon separation because it was his understanding that doing so would delay his separation from service for an undetermined period of time. The Veteran underwent a VA examination, shortly after he separated from his period of active duty service, in December 1964. He reported back pain, stiffness and soreness at that examination. However, the examiner opined that there was no evidence of a back disorder. A low back disorder was not discussed at the Veteran's August 1974 and July 1975 examinations for his reserve duty service. An MRI report from the Veteran's VA medical center, dated October 2014, then reveals a diagnosis of mild and moderate disc degeneration and moderate spondylosis. The Veteran's private chiropractor, Dr. R.F., submitted a medical opinion statement in support of the Veteran's claim. He noted that he had treated the Veteran for his low back disorder since 2010. He then opined that the Veteran's military service more likely than not led to early degenerative arthritic changes of the joint tissue and early fibrosis of the soft tissue elements. He supported his opinion by noting that the Veteran was exposed to climbing onto aircraft and jumping down off of aircraft onto hard surfaces as well as several hard helicopter landings while in service. He specifically discussed the rough helicopter landings, as reported by the Veteran, and noted that such accidents can certainly lead to whiplash/spinal trauma type injuries, which usually lead to an increase in fibrosis of the soft tissue during repair and vascular issues to joint tissue that in turn, led to early degenerative joint disease. The Veteran's private physical therapist, S.R., also submitted a letter in support of the Veteran's claim. She opined that degenerative arthritis was mostly caused by repetitive injuries/whiplash, which the Veteran's military duties involved. S.R. then opined that because the Veteran's military experience was the only real physical work the Veteran had done, that his military service certainly could have caused his chronic muscle and joint pain. The Board finds Dr. R.F.'s and S.R.'s medical opinions to be highly probative in this case. There is also no medical evidence of record refuting such etiology opinions. While the January 1965 VA examination found no low back diagnoses, the current medical evidence clearly indicates the presence of a low back disorder. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for a low back disorder is warranted. II. Right Hip Disorder The Veteran's service treatment records show that there was no right hip disorder noted upon enlistment to the military. The Veteran's separation examination in July 1964 is silent for any right hip disorder. A right hip disorder was also not discussed at the Veteran's August 1974 and July 1975 examinations for his reserve duty service. The Veteran's private medical records show reports of right hip pain at several appointments as early as February 2010. In July 2010, the Veteran underwent an x-ray as a result of such pain and was diagnosed with mild narrowing of the acetabular femoral joint space compartment and early mild degenerative changes at the greater trochanter of the proximal femur. Again, the Board notes that the Veteran's private chiropractor, Dr. R.F., submitted a medical opinion statement in support of the Veteran's claim. He noted that he had treated the Veteran for his hip disorders since 2010. He then opined that the Veteran's military service more likely than not led to early degenerative arthritic changes of the joint tissue and early fibrosis of the soft tissue elements. He supported his opinion by noting that the Veteran was exposed to climbing onto aircraft and jumping down off of aircraft onto hard surfaces as well as several hard helicopter landings while in service. He specifically discussed the rough helicopter landings, as reported by the Veteran, and noted that such accidents can certainly lead to whiplash/spinal trauma type injuries, which usually lead to an increase in fibrosis of soft tissue during repair and vascular issues to joint tissue that will led to early degenerative joint disease. He then reiterated that the Veteran's military history has most certainly led to the early aforementioned joint/soft tissue changes and accelerated hip pain with dysfunction. The Veteran's private physical therapist, S.R., also submitted a medical opinion statement in support of the Veteran's claim. She opined that degenerative arthritis was mostly caused by repetitive injuries/whiplash, which the Veteran's military duties involved. She then noted that because the Veteran's military experience was the only real physical work the Veteran had done, his military service certainly could have caused chronic muscle and joint pain. The Board again finds Dr. R.F.'s and S.R.'s medical opinions to be highly probative in this case. There is also no medical evidence of record refuting such etiology opinions. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for a right hip disorder is warranted. III. Withdrawn Claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his June 2016 hearing, the Veteran and his representative withdrew the appeal for the issues of entitlement to service connection for bilateral hearing loss and a left leg disorder. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on the issues, and they are dismissed. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back disorder is reopened. Service connection for degenerative arthritis of the low back is granted. Service connection for degenerative arthritis of the right hip is granted. The appeal as to the issue of entitlement to service connection for bilateral hearing loss is dismissed. The appeal as to the issue of entitlement to service connection for a left leg disorder is dismissed. REMAND The Board finds that a remand is necessary in this case. First, the Veteran should be afforded a VA examination in connection with his stomach disorder claim. The Veteran offered testimony at his June 2016 hearing that the tremendous stress he was under while in service caused his stomach condition. As such, a VA examination should be obtained, to include whether such stomach conditions are related to his acquired psychiatric disorders. Additionally, as the Veteran's June 2016 testimony appears to relate his stomach disorders to his claim for an acquired psychiatric disorder, the AOJ should prove the Veteran with relevant notice as to secondary service-connection. Second, remand is required for further development of the Veteran's acquired psychiatric claim. The Veteran's claim file contains lay statements regarding his in-service stressors, which include a June 2015 statement detailing four in-service incidents involving helicopter landings, missions, or related issues. The Board notes that the RO has not yet undertaken any efforts to verify these stressors. Therefore, the Board finds that the AOJ should attempt to verify these stressors on remand. The Board also finds that the Veteran should be afforded a VA examination in connection with his acquired psychiatric disorder claim based upon the Veteran's VA medical records showing treatment for anxiety, depression and PTSD symptoms as well as the Veteran's testimony that such symptoms began while in-service following several helicopter incidents. Finally, any relevant outstanding medical records should be associated with the claims file, to include any medical records from Dr. K.C., as discussed in the September 2013 lay statement from the Veteran's spouse, Dr. M and/or Sacred Heart Hospital, as discussed in the Veteran's November 2010 claim, and any Social Security Administration (SSA) disability records. 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). Expedited handling is requested.) 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his acquired psychiatric and stomach disorders, to include Dr. K.C., Dr. M., and Sacred Heart Hospital. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. Notify the Veteran as to how he can substantiate his claims for service connection as secondary to service-connected disorder(s). 3. The AOJ should request a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records 4. The AOJ should then take all appropriate steps to verify the Veteran's claimed stressors, to include verification of all in-service incidents, as described by the Veteran in his June 2015 statement and his June 2016 testimony. If any records are classified, the AOJ should properly document the file and determine if any additional development can be conducted to generally confirm whether a stressor occurred (even if the details cannot be furnished). For example, the AOJ should consider whether there is a liaison to the United States Special Operations Command (USSOCOM) that may be able to provide verification. 5. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any stomach disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should note that medical records in the Veteran's claims file shows that the Veteran has been diagnosed with gastroesophageal reflux disease and associated symptoms, as well as colon cancer, but during his June 2016 hearing, the Veteran also discussed a diagnosis of colitis and a related colon removal surgery. The examiner is asked to address the Veteran's diagnoses of record as well as his testimony regarding colitis and colon removal surgery in his or her opinion. The examiner should opine as to whether it is at least as likely as not that the stomach disorder is causally or etiologically related to his military service, to include any injury or symptomatology therein. He or she should also address whether any current stomach disorder is caused by or permanently aggravated by an acquired psychiatric disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any and all psychiatric disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, lay statements and assertions, prior VA examination reports, and information pertaining to the claimed in-service stressor. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. In so doing, the examiner should consider the diagnoses of record and the results of any testing performed. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 7. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be noted if any notice that was sent was returned as undeliverable. 8. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 9. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of 38 C.F.R. § 3.310. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs