Citation Nr: 1752827 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-24 902A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for a back disability, and if so, whether service connection is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, depressive disorder, and anxiety. 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and D.K. ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to August 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Currently, jurisdiction of the claims file resides with the RO in Louisville, Kentucky. In April 2015, the Board remanded the case back to the RO for the RO schedule the Veteran for a video conference hearing before a Veterans Law Judge. In July 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The reopened claim of service connection for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. According to the Veteran's July 6, 2107 videoconference hearing transcript; and, prior to the promulgation of a decision in the appeal, the Veteran indicated his request to withdraw from appellate status the issue of entitlement to special monthly compensation (SMC) based on the need for aid and attendance or by reason of being housebound. 2. In a February 2003 rating decision, the RO denied entitlement to service connection for a back disability; and, the Veteran did not appeal that determination. 3. Presuming its credibility, the evidence associated with the record since February 2003 relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for a back disability. 4. The Veteran's acquired psychiatric disorder, variously diagnosed as depressive disorder, anxiety disorder and PTSD, is as likely as not, related to an in-service stressor. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran, with regard to the issue of entitlement to SMC based on the need for aid and attendance or by reason of being housebound, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The February 2003 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2017). 3. New and material evidence has been received sufficient to reopen the claim of service connection for a back disability. 38 U.S.C § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder was incurred in service. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claim Under 38 U.S.C § 7105 (2012), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision, and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.202 (2017). Withdrawal may be made by the appellant or by his or her authorized representative, and must be in writing unless the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204 (2017). In this case, the Veteran (appellant) has withdrawn this appeal as to the issue of entitlement to a SMC based on the need for aid and attendance or by reason of being housebound, and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to that issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to SMC based on the need for aid and attendance or by reason of being housebound, and it is therefore dismissed. II. New and Material Evidence A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. The February 2003 rating decision's denial of service connection for a back disability is final because the Veteran did not timely appeal that determination. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In addition, no evidence that was relevant to the issues was filed with VA during the appeal period(s), thus, new and material evidence was not submitted so as to vitiate the finality of those decisions. 38 C.F.R. § 3.156(b) (2017). Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C § 5108 (2012); 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). In the RO's February 2003 rating decision, the claim of service connection for a back disability was denied because the RO determined that there was no evidence of a permanent residual or chronic back condition shown during service or following service. The Veteran did not appeal that determination and it became final. Since the February 2003 rating decision, additional evidence pertinent to the claim of service connection for back disability has been added to the claims file, including evidence of a current chronic back disorder; and the Veteran's competent and credible testimony indicating that he was told by his doctors that his back condition resulted from weak stomach muscles due to his service-connected gastrointestinal disorder. Presuming its credibility, this evidence is new and material. The evidence was not previously of record and raises a reasonable possibility of substantiating the claim of service connection for a back disability. As the new evidence addresses the reason for the prior denial, it is material and the claim may be reopened. The reopened claim of service connection for a back disability is addressed in the REMAND which follows. III. Service Connection The Veteran seeks service connection for an acquired psychiatric disorder to include depression, anxiety and PTSD. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2013). The Veteran maintains that he was wrongly accused of murdering a fellow serviceman's wife during service in 1972. The Veteran has consistently maintained that he suffers from PTSD as a result of having been incarcerated and accused, and repeatedly interrogated, about a crime that he did not commit. The Veteran's service treatment records, however, are negative for complaints or findings of a psychiatric disorder, and the Veteran's personnel records do not corroborate the Veteran's assertions regarding his claimed in-service stressor. However, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has current diagnoses of depression, anxiety, and PTSD. See e.g., December 2010 VA examination and December 2011 VA psychiatry outpatient note. The Veteran underwent a VA mental status examination in December 2011. The VA psychologist who examined the Veteran indicated a diagnosis of major depressive disorder, but opined that the Veteran did not meet the diagnostic criteria for PTSD at that time. Significantly, however, the examiner opined that the Veteran's clinical depression was a result of distress associated with traumatic events from the military as well as his current medical problems. Accordingly, the Veteran has a current acquired psychiatric disorder which a VA psychologist has related, at least in part, to the Veteran's self-reported in-service stressor of being wrongly accused and imprisoned for murder during service. Thus, the only remaining question, therefore, is whether the Board finds the Veteran's assertions credible. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). At his July 2017 hearing, the Veteran explained that he was incarcerated in October 1973 following a court-marshal for a robbery conviction. The Veteran has never denied that this occurred, and it is clearly documented in his personnel file. Notably, however, the Veteran also asserts that he was wrongly accused of a September 1972 murder prior to the documented robbery, yet there is no documentation of this initial incident in his personnel file. See newspaper articles provided by the Veteran, as well as his July 2017 hearing testimony, and the hearing testimony of the Veteran's ex-wife for the details of the murder of a fellow serviceman's wife, and the Veteran's involvement prior to, and following that murder. According to the newspaper article, as well as the Veteran's personnel file, the serviceman whose wife was murdered in 1972, as well as the Veteran, and the service member who was ultimately accused and tried for the murder, all served together in Germany in the 501st Supply and Transportation battalion Neither the Veteran's personnel file nor the newspaper articles suggest that the Veteran was involved in any way in the murder for which he claims to have been initially accused of committing. Notably, however, the Veteran's personnel file shows that at some point after May 1972, and prior to October 1973, he was attached to Co A of the 501st Supply and Transportation Bn of the 1st Armored Division for reasons of "CNF" (confinement) Unlike the subsequently documented "CNF" (confinement beginning in October 1973 for robbery), there are no additional records to explain the reason for the initial confinement which remains unexplained, or the exact dates of that confinement. The Veteran asserts that there is no record of this initial confinement and interrogation for murder because the service made a mistake in accusing him of a crime he did not commit, and wanted to hide the fact that the Veteran was wrongly imprisoned. If this is indeed what happened in this case, there would be no way to corroborate the Veteran's account of what happened. Accordingly, if the Veteran's allegations are true, it is the type of incident that would not be officially reported, and therefore it would not be unusual for there to be an absence of service records documenting the events the Veteran has alleged. However, there is other evidence in the record which lends credibility to the Veteran's account of what happened to him in service. First, the Board also finds it noteworthy that the Veteran was discharged honorably from service, even though he received a court-marshal for robbery in October 1973 and served time in prison for that crime. This raises the possibility that the service was trying to make-up for their earlier mistake. Additionally, the record reflects that the Veteran had difficulty coping and adjusting following the alleged wrongful imprisonment. Sudden changes in personality and physical evidence of undue stress can serve to support the Veteran's assertions. First, the STRs show that the Veteran was treated for a bleeding ulcer in October 1972, approximately one month following the murder. The Veteran was told it was due to a "nervous stomach" which supports the Veteran's contention that he was suffering from stress and anxiety during that time period. Additionally, the Veteran testified that he was beaten while in prison, and started drinking heavily after he was released from prison. He testified that he became reckless, and had trouble coping. His ex-wife testified that he was nervous all the time and drank to try to forget what happened. The Veteran believed that this changed in behavior led to the subsequent robbery. Hearing Transcript, pp. 16-23. In summary, the Board finds that there is enough evidence in the record to lend credibility to the Veteran's assertions of being falsely accused and wrongly imprisoned for a murder he did not commit. This evidence includes the Veteran's honorable discharge following imprisonment for robbery, the sworn corroborating testimony of his ex-wife, the timing of his bleeding ulcer, his drastic personality changes following the alleged wrongful imprisonment; as well as the newspaper articles which show that the widowed serviceman and the actual murderer both served in the same unit as the Veteran in Germany at the time of the murder. Additionally, a VA psychologist has linked the Veteran's depressive disorder to the in-service incident. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, as here, there is a reasonable doubt regarding service origin, such doubt shall be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Accordingly, in resolving doubt in the Veteran's favor, the Board finds that the Veteran's acquired psychiatric disorder was incurred in service, and therefore service connection is warranted. ORDER The claim for SMC based on the need for regular aid and attendance or by reason of being housebound, is dismissed. New and material evidence sufficient to reopen the previously denied claim of service connection for a back disability having been received, the claim of service connection for a back disability is reopened, and to that extent only, the appeal is granted. Service connection for an acquired psychiatric disorder, variously diagnosed as major depressive disorder, anxiety disorder, and PTSD, is granted. REMAND The Veteran seeks service connection for a back disability. He asserts that his back condition was incurred during service; and/or in the alternative, that his back disability is secondary to his service-connected gastrointestinal disorder. The Veteran's STRs show that the Veteran was treated for back pain in July 1971 after falling down the stairs and injuring his lumbar spine. In October 1972, the Veteran suffered a gastrointestinal bleed, and subsequently underwent surgery as a result of his condition in April 1973. A second procedure was conducted in September 1973. The Veteran maintains that he was told by doctors that his back pain is due to his weak stomach muscles as a result of his service-connected gastrointestinal disorder. A VA examination is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file, all VA medical records pertaining to the Veteran dated from June 2017 onward. 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's back disability. The entire record must be reviewed by the examiner. All necessary tests should be conducted. Based on the examination results and the review of the entire claims folder, the examiner should provide an opinion as to whether any current back disorder, at least as likely as not (a probability of 50 percent or greater) began in or is related to an injury or disease incurred during active service. In this regard, the examiner's attention is directed to the Veteran's assertions that he was told that his back disability is related to having weak stomach muscles as a result of his service-connected gastrointestinal disorder. Please provide a complete explanation for the opinion. 3. Ensure that the information provided by the examiner(s) satisfies the criteria above and, if not, return the report(s) as insufficient. Then, readjudicate the claim of service connection for a back disability. If the benefit sought on appeal remains denied, provide the appellant with an Supplemental Statement of the Case, and an appropriate period of time to respond before the case is returned to the Board. 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs