Citation Nr: 1741202	
Decision Date: 09/21/17    Archive Date: 10/02/17

DOCKET NO.  14-41 276	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability.

2. Entitlement to service connection for a low back disability.

3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Keith E. Johnson, Esq.


ATTORNEY FOR THE BOARD

William Skowronski, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from May 1964 to April 1968.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO).  

The appeal seeking service connection for a back disability has been characterized and developed as a claim for a disability manifested by "hard of walking with limited range of motion" on a de novo basis after the Veteran filed a claim for a disability manifested by a limitation of motion and impaired ability to walk in November 2011.  However, in the Veteran's October 2014 substantive appeal and a December 2015 appellate brief, the Veteran's attorney clarified he is seeking service connection for a back disability.  Notably, a December 2007 rating decision denied service connection for a low back contusion that the Veteran claimed resulted from an in-service injury to the area around his right kidney.  A July 2009 rating decision reopened and denied the claim of service connection for a low back contusion.  To support his November 2011 claim for service connection for a back disability, the Veteran has reported the same symptoms and relied on the same theory of causation.  Accordingly, the Board has characterized the matter as a claim to reopen the previously denied claim for service connection for a low back disability.  See Velez v. Shinseki, 23 Vet. App. 199, 203-05 (2009).  Inasmuch as this decision grants the claim to reopen in full, the Veteran is not prejudiced by the Board proceeding in this manner.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of service connection for a low back disability and an acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. An unappealed July 2009 rating decision reopened and denied the Veteran's claim seeking service connection for a low disability based essentially on a finding that he did not have a chronic low back disability.  New and material evidence was not received within one year of the July 2009 determination.

2. Evidence received since the July 2009 rating decision includes medical records that show a chronic low back disability, including degenerative joint disease (DJD), has been diagnosed.


CONCLUSIONS OF LAW

1. The July 2009 rating decision denying service connection for a low back disability is final.  38 U.S.C.A. § 7105 (West 2014).

2. New and material evidence has been received to reopen the claim of service connection for a low back disability.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A December 2007 rating decision denied the Veteran service connection for a low back disability, based essentially on a finding that he did not have a chronic disability related to service.  He did not appeal that decision, and new and material evidence was not received within one year of the rating decision.  Therefore, the December 2007 rating decision became final based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.156.  A July 2009 rating decision reopened and denied the Veteran's claim seeking service connection for a low disability based essentially on a finding that he did not have a chronic low back disability.  He did not appeal that decision, and new and material evidence was not received within one year of the rating decision.  Therefore, the July 2009 rating decision is final based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.156.  

However, a final decision shall be reopened if new and material evidence is presented.  38 U.S.C.A. § 5108.  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.  38 C.F.R. § 3.156(a).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

Evidence received since the July 2009 rating decision include VA treatment records that show the Veteran reported he has experienced back pain since service and that lumbar spine DJD has been diagnosed based on X-ray results.  As these treatment records date from after the July 2009 rating decision and show he has a chronic low back disability and because the Veteran's statements are presumed credible, the additional evidence is both new and material.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (finding that the standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a "low threshold").  Accordingly, the claim has been reopened.  

De novo review of the claim for service connection for a low back disability is addressed in the remand below.


ORDER

The appeal to reopen a claim of service connection for a low back disability is granted.
REMAND

The Board finds the Veteran's claims seeking service connection for a low back disability and an acquired psychiatric disability require additional development.    

The Veteran contends the low back and psychiatric disabilities manifested in service.  
	
Specifically, the Veteran asserts a steering mechanism aboard a ship struck and injured his back, causing a chronic disability.  A May 1967 service treatment record (STR) notes he was struck in the right kidney area and complained of sharp pain.  A contusion to the right renal area was diagnosed.  He was provided a genitourinary examination in October 2007, and a contusion was diagnosed.  The examiner stated that, if the Veteran's report of injury and treatment history was accurate, it was more likely that his current low back disability was related to the in-service contusion.

Since that time, VA treatment records show X-rays have revealed lumbar spine DJD.  While VA treatment providers have noted he reported experiencing back pain service, they did not specifically opine the in-service injury caused his current back disability.  Notably, statements contemporaneous in time to service included the Veteran's denial of recurrent back pain on two separate occasions following the renal contusion.  Thus, a VA examination and opinion based on an accurate factual history is necessary.  

VA treatment records show VA psychiatric treatment providers have diagnosed PTSD, depression, and anxiety.  The Veteran claims his variously diagnosed psychiatric disability was caused by his in-service back injury, his fear of hostile military or terrorist activity while serving in Vietnam, or by an in-service personal assault.  In his October 2014 substantive appeal, he reported he was assigned to small vessels in Da Nang Bay and was in danger of being hit by sniper fire.  He also reported another sailor sexually assaulted him while he slept aboard the USS Fort Marion.  As noted, his STRs show he was struck in the right kidney.  His DD Form 214 shows he served aboard the USS Fort Marion and was awarded the National Defense Service Medal, Vietnam Service Medal with three Bronze Stars, and the Vietnam Campaign Medal, but his complete service personnel records have not been obtained.  He also has not been provided a VA psychiatric examination.  The Board acknowledges VA treatment providers have seemed to associate his reports of Vietnam service and an in-service personal assault with his current psychiatric disability(ies), but these opinions are vague, i.e. relating his PTSD to multiple stressors,  and are not based on a review of the complete record.  Notably, the Veteran has provided conflicting reports on whether he participated in combat or not.  In addition, a July 2013 VA treatment record shows the Veteran reported experiencing combat in Vietnam, but the treating psychologist noted his anxiety appeared more "trait-based" than trauma-based.  Accordingly, there is conflicting evidence regarding the nature of his claimed psychiatric disability(ies).  

The Board finds that there are complex medical questions presented in this case which are not fully addressed by the evidence of record.  Therefore, the Veteran should be afforded VA examinations to determine the nature and etiology of his low back and psychiatric disabilities.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Exhaustive development to corroborate the Veteran's reports of serving in a hostile environment in Vietnam and being personally assaulted should also be undertaken. Hence his complete service personnel records must be secured.  The Board notes VA regulations provide that if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident.  To that end, the United States Court of Appeals for the Federal Circuit observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated."  See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal assault cases).

In addition, it appears relevant records of VA treatment are outstanding.  Records from June 2010 to May 2012 were uploaded to the electronic record by VA, and the Veteran has submitted additional, more recent records of treatment, but it does not appear the complete records of treatment have been associated with the record.  Because VA records are constructively of record, any outstanding available records of treatment for back and psychiatric disabilities must be secured.  

Additionally, the available service treatment records (STRs) include a report that the Veteran had been hospitalized at the US Naval Hospital in Bremerton, Washington.  These records are not associated with the claims folder.  Additionally, the Veteran reports serving in the U.S. Coast Guard Reserves from June 1973 to February 1990.  Attempts should be made to obtain these records.  Furthermore, the Veteran has reported private treatment with Kaiser Permanente, a private psychiatrist in "Livermore," and having undergone employment examinations.  These records should be obtained on remand.

Accordingly, the case is REMANDED for the following actions:

(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. Provide the Veteran notice for substantiating a PTSD claim based on fear of hostile military or terrorist activity as well as military sexual assault.

2. Associate with the claims folder records the following federal records:
* records of hospitalization at the U.S. Naval Hospital in Bremerton, Washington in April/May 1967;
* complete personnel records for the U.S. Navy and U.S. Coast Guard Reserves; and
* complete service treatment records for the U.S. Coast Guard Reserves from June 1973 to February 1990.

3. Assist the Veteran in obtaining the following non-federal records:
* complete records from Kaiser Permanente;
* records of psychiatric treatment from a provider in "Livermore," and
* any employment examination reports. 

4. The AOJ should confirm the Veteran's initial dates of VA treatment, and associate complete VA treatment records. 

5. The AOJ should schedule the Veteran for an examination to determine the nature and likely etiology of his low back disability.  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following:  

   (a) Please identify (by diagnosis) each low back disability shown;

   (b) Please identify the most likely etiology for each low back disability entity diagnosed.  Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) the Veteran's active service, to include complaints of back pain therein? 

In providing this opinion, the examiner is requested to consider the following:
* the Veteran's history of right renal contusion in May 1967;
* an April 1968 separation examination which reflected a normal clinical evaluation of the spine;
* an April 1968 Report of Medical History wherein the Veteran denied recurrent back pain;
* an April 1972 Report of Medical History wherein the Veteran denied recurrent back pain and reported a small injury to the right side of his back during prior active service;
* an April 1972 reenlistment examination which reflected a normal clinical evaluation of the spine;
* an October 2007 VA genitourinary examination report providing opinion that, if the Veteran's reported history was accurate, it was more likely that his current low back disability was related to the in-service contusion;
* the Veteran's current report of chronic back pain since the renal contusion in service.

The examiner must include rationale with all opinions, to specifically include comment on the opinions/textual evidence already in the record.

6. The AOJ should schedule the Veteran for an examination to determine the nature and likely etiology of his psychiatric disability.  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following:  

   (a) Please identify (by diagnosis) each psychiatric disability shown under DSM-V criteria, to include consideration of recurrent major depressive disorder, anxiety state and PTSD and discuss whether these diagnoses are correct even if currently asymptomatic, or whether any of these diagnoses were incorrect.

	(b) If PTSD under DSM-V criteria is diagnosed, whether such diagnosis is the result of an in-service stressor, to include any corroborated military stressors, fear of hostile military or terrorist activity and/or the Veteran's alleged personal assaults.  For any stressors related to personal assault, the examiner must consider whether there were any behavior changes following the claimed assaults that are consistent with an individual who has been assaulted.

   (c) Please identify the most likely etiology for each psychiatric disability entity other than PTSD.  Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) the Veteran's active service, to include his reports of being injured, service in a hostile environment in Vietnam, and being sexually assaulted by another service member? 

In providing this opinion, the examiner is requested to consider the following:
* a May 1967 STR right renal contusion;
* a November 22, 2011 VA mental health examination note wherein the Veteran described MST in service;
* an April 1968 separation examination which reflected a normal psychiatric status;
* an August 2012 VA treatment record wherein the Veteran reported nightmares related to Vietnam experiences and his renal contusion in service;
* a November 26, 2012 VA treatment record wherein the Veteran described his MST events; and
* the Veteran's October 2014 statement, received in December 2015, described his in-service stressors.

The examiner must include rationale with all opinions, to specifically include comment on the opinions/textual evidence already in the record.

7. After undertaking any other development deemed appropriate, readjudicate the issues of entitlement to service connection for low back and acquired psychiatric disabilities.  If the benefits sought are not granted, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond.  Then return the case to the Board for further review if otherwise in order.

The Veteran 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.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs