Citation Nr: 1755037 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-25 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection degenerative arthritis, thoracolumbar spine. 3. Entitlement to service connection for degenerative disc disease, cervical spine. 4. Entitlement to service connection for degenerative arthritis, thoracolumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran had active service from April 1969 to August 1970, to include service in the Republic of Vietnam. The Veteran was awarded the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal from prior rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Although the RO ultimately determined that new and material evidence had been submitted to reopen the Veteran's claim for service connection for degenerative arthritis, thoracolumbar spine, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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 Veteran's service-connection claim for a thoracolumbar spine 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. The evidence of record is in equipoise as to whether the acquired psychiatric disorders are related to his military service. 2. The Veteran's cervical spine disorder is not shown to be causally or etiologically related to any disease or injury during service and did not manifest within one year of service discharge. 3. In a February 2014 rating decision, the RO denied the Veteran's application to reopen a service-connection claim for a lumbar spine disability. The Veteran did not appeal, nor did he submit new an material evidence within one year. 4. The evidence received since the February 2014 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and raises a reasonable possibility of substantiating the claim for service connection on the merits. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, his acquired psychiatric disorders were incurred in active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for degenerative disc disease, cervical spine, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The February 2014 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 4. As new and material evidence has been received, the claim for service connection for degenerative arthritis, thoracolumbar spine is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (c) (West 2014). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The RO initially denied service connection for a low back disability in a January 1971 rating decision based on its determination that the Veteran's low back disability was pre-existing to his active duty service. The Veteran subsequently filed an application to reopen this claim, which the RO denied in a February 2014 rating decision. The Veteran did not appeal the denial or submit any additional pertinent evidence within the appeal period. As such, the February 2014 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). The evidence received after the expiration of the appeal period includes, in pertinent part, include an August 2016 private medical opinion indicating that it is at least as likely as not that the Veteran's spine disability was caused by military service. The Board finds the opinion to be new and material, and the Veteran's lumbar spine service-connection claim is reopened. To this extent only, the appeal is granted. III. Service Connection In order to obtain service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., a "nexus." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, certain listed chronic diseases such as arthritis may be presumed to have been incurred during service as the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In addition to the laws and regulations outlined above, service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A. Acquired Psychiatric Disability The Veteran contends that his acquired psychiatric disorders are a result of his active duty service in Vietnam. It is undisputed that the Veteran experienced combat-related trauma during his service in Vietnam. He describes serving during sniper attacks, losing friends, and fearing for his life. His service records confirm service in Vietnam, and he is the recipient of the Combat Action Ribbon. As the Veteran experienced combat, and his claimed stressors are consistent with the circumstances, conditions, or hardships of combat service, his lay statements are sufficient to show that he indeed experienced an in-service event or injury under the provisions of 38 U.S.C.A. § 1154(b). The key question at issue is whether the Veteran's has current acquired psychiatric disorders that are related to his in-service stressors. There is no question that the Veteran has a current psychiatric disability; however, his disabilities have been variously diagnosed as PTSD, anxiety disorder, depression, and alcohol abuse disorder. In January 2014, the Veteran attended a VA PTSD examination. The Examiner noted that the Veteran does not have a PTSD diagnosis that conforms to DSM-5 criteria. However, the examiner did diagnose the Veteran with Unspecified Anxiety Disorder and Alcohol Use Disorder. With regard to unspecified anxiety disorder, the examiner noted multiple contributing factors, to specifically include exposure to hostile military situations. Due to the complexity of the Veteran's history as well as his alcohol abuse, the examiner determined that the Veteran's anxiety is less likely than not due to his experiences in Vietnam alone. However, the Veteran's experiences in Vietnam may be a contributing factor. In October 2014, the Veteran attended another PTSD VA examination. The examiner indicated that although the Veteran endorsed all the symptoms of PTSD, a clear nexus between the symptoms and his reported combat service could not be made in the areas of negative cognitions and hyperarousal. In a May 2016 Administrative Note, the Veteran's psychiatrist, Dr. S.K., noted in pertinent part, that the Veteran had disclosed symptoms that indicate a diagnosis of PTSD since September 22, 2014. He noted the Veteran had exposure to trauma in Vietnam with chronic symptoms since he returned from Vietnam with low mood, nightmares where he would wake up fighting or screaming and sweating, flashbacks with triggers, bothering memories, irritability, difficulty with trusting people, avoidance of crowded places, isolation, and difficulty in relationships etc. He started drinking alcohol after he came back from Vietnam as it was helping him with sleep as he had nightmares. Further, Dr. S.K. noted the Veteran had cut down his alcohol drinking over the course of treatment-with complete remission for a year per the most recent assessment by the undersigned provider on May 14, 2016. Currently his symptoms from PTSD are under good control with some improvement in his psychosocial functioning level due to compliance with medications and abstinence from alcohol. In a March 2017 Psychiatry note, Dr. S.K. reported a diagnosis of Chronic PTSD-mild, with situational stresses and Alcohol Abuse, in remission. In June 2017, the Veteran attended another PTSD VA examination. The June 2017 examiner noted that the Veteran does not have a PTSD diagnosis that conforms to DSM-5 criteria. However, the examiner diagnosed the Veteran with Unspecified Anxiety Disorder and Alcohol Use Disorder, Moderate and noted that his alcohol use disorder symptoms likely increase when his anxiety symptoms increase and as a result they cannot be fully differentiated. The examiner noted that due to these issues, there is no clear link between the veteran's current anxiety disorder and his military experiences. In reviewing the evidence as a whole, the Board finds that the evidence is in relative equipoise as to whether the Veteran's acquired psychiatric disabilities are related to his in-service combat stressors. Indeed, the January 2014 VA examiner noted that the Veteran's exposure to hostile military situations was a contributing factor in the development of his anxiety disorder. The opinions from Dr. S.K. and the June 2017 VA examiner suggest a correlation between the Veteran's anxiety and his history of alcohol abuse, and that symptoms between the two disorders cannot be distinguished. To the extent there is disagreement among the physicians listed above as to whether the Veteran actually has PTSD, the Board will resolve all doubt in the Veteran's favor and find that PTSD is demonstrated by the record. Indeed, the Veteran's physician Dr. S.K. specifically recognized the presence of PTSD associated with in-service combat trauma, and the Veteran endorsed all symptoms of PTSD at the October 2014 VA examination. In light of the above, and in resolving all doubt in the Veteran's favor, the Board finds that service-connection for an acquired psychiatric disability, to include PTSD is warranted. B. Cervical Spine Degenerative Disc Disease The Veteran contends that his cervical spine disorder had its onset in, or is otherwise related to his period of active duty service. With regard to the first element of service connection, current disability, the Veteran has a current diagnosis of cervical spine degenerative disc disease. See December 2016 Cervical Spine VA Examination. With regard to the second element of service connection, in-service incurrence of a disease or injury, a June 1970 VA service treatment record (STR) notes Veteran's complaint of cervical pain. The Veteran has not indicated he endured any trauma to his neck during his period of service, to include during combat operations in Vietnam. The key question at issue is whether the Veteran's cervical spine degenerative disc disease is related to his active duty service. An August 2009 primary care note indicates the Veteran came in with the possibility of a stroke occurring. He noted that he was picking up large pieces on concrete and later noticed that neck pain had extended down from his shoulder and upper arm into his forearm. A cervical x-ray given at the time showed degenerative disc disease, cervical spine. A July 2016 private medical treatment record notes that the Veterans onset of neck pain was gradual and was first noticed several years ago, but worst over the past month. Cervical radiographs revealed cervical subluxation, hypolordosis and discogenic spondylosis. In August 2016, the Veteran's representative submitted a private medical opinion from his physician. After reviewing all relevant military and civilian records for the Veteran, the physician opined that the Veteran's "spinal and disc degeneration" was as least likely as not (50/50 probability) caused or [due] to his military service. By way of rationale, the physician simply stated that "any trauma on body and joints can lead to future degenerative/arthritic changes." In December 2016, the Veteran attended a Cervical Spine VA Examination. The examiner diagnosed cervical spine degenerative disc disease and opined that the Veteran's cervical degenerative changes were less likely than not incurred in or caused by the Veteran's complaints of neck pain documented in his STRs during military service. By way of rationale, the examiner stated that there was only one instance of neck pain found in the service treatment records, and there is no diagnosis or treatment for any documented cervical spine condition found in STRs. The examiner explained that pain is a symptom and is not considered a diagnosis. The examiner also noted that VA records were silent for any cervical spine complaints until 2009 when radiographic diagnostic testing for his left shoulder revealed incidental findings of cervical degenerative disc and arthritic changes. In addition, the examiner addressed the August 2016 opinion from the Veteran's private physician [referenced above], noting that the rationale provided-namely that "any trauma on body and joints can lead to future degenerative/arthritic changes"-assumes the Veteran endured trauma to his neck during military service. The examiner pointed out that there is no evidence of neck trauma in service, and the Veteran also denies any history of trauma. The examiner also observed that the Veteran worked productively for many years in roofing and real estate, and explained that degenerative disc changes, such as the Veteran's, are very common with aging as the discs dry out and don't absorb shocks as readily. By the age of 60, most people have some degree of disc degeneration. The examiner added that osteoarthritis is the most common form of arthritis, affecting millions of people around the world. It is often called wear-and-tear arthritis and most commonly affects joints in the hands, neck, lower back, knees and hips. In reviewing the evidence thoroughly, the Board finds that the evidence is against a finding that the Veteran's current degenerative disc disease, cervical spine, is a result of his active duty service. Here, the opinion provided by the December 2016 examiner includes discussion of the Veteran's contentions, the objective medical history of his cervical spine symptoms, and medical principles relevant to the Veteran's current degenerative disorder. The examiner does not base the opinion solely on an absence of treatment, but also on the Veteran's reported history, and the clinical understanding of the Veteran's degenerative disability. The examiner addressed the August 2016 private opinion, indicating that the positive link was based on an inaccurate premise, that the Veteran endured neck trauma in service. Given this, the December 2016 VA examiner's opinion is afforded more probative weight than that of the Veteran's private physician. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no objective evidence demonstrating the onset of arthritis of the neck during service, or within the Veteran's first post-service year. To the extent the Veteran states he has had neck pain since service, these statements are outweighed by the December 2016 VA examiner's medical conclusions, which took into account the Veteran's reported history and determined that the Veteran's disability is age related, with post-service onset. In sum, the probative evidence of record is against a finding that the Veteran's cervical spine disability had its onset in, or is otherwise related to service, and the benefit sought on appeal is denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received, and the claim of entitlement to service connection for degenerative arthritis, thoracolumbar spine is reopened. Service connection for an acquired psychiatric disability, to include PTSD is granted. Service connection for degenerative disc disease of the cervical spine is denied. (CONTINUED ON NEXT PAGE) REMAND The Veteran claims that his thoracolumbar spine disability had its onset during service, to include as a result of an in-service shrapnel wound to the back. The Veteran's service treatment records document complaints of back pain with onset prior to service, within the first few months of enlistment. Open medical questions as to the nature and etiology of the Veteran's exist in this case that should be addressed by a VA physician prior to an adjudication on the merits. 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. Schedule the Veteran for a VA examination by a physician with sufficient expertise to determine the etiology of all thoracolumbar spine disorders present during the period of the claim. All indicated studies should be performed. The examiner should take a history from the Veteran as to the progression of his lumbar spine disability. Upon review of the file, and after interview and examination of the Veteran, the examiner should respond to each of the following: a. Clarify all current thoracolumbar spine diagnoses. b. Is it undebatable that any of the Veteran's currently diagnosed thoracolumbar spine disabilities had its onset prior to the Veteran's period of active duty service. If so, which disabilities? Please comment upon the Veteran's service treatment records indicating complaints of, and treatment for pain shortly upon entrance into service in April 1969, as well as the fact that his examination upon entrance showed a "normal" clinical evaluation of the spine. c. For each disability identified in (b) that undebatably pre-existed service, is it also undebatable that such disability was NOT aggravated beyond its natural progression during the Veteran's period of service? Please consider and comment upon the Veteran's complaints of, and treatment for back pain during service, as well as his assertions that he endured a shrapnel wound to the back during his combat service in Vietnam. d. If the answer to (b) or (c) is "no" for any of the Veteran's current thoracolumbar disabilities, assume as true that the Veteran entered service in sound condition. With this assumption in mind, for each current disability, is it at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to the Veteran's period of service? Please consider and comment upon the Veteran's complaints of and treatment for back pain during service, as well as his assertions that he endured a shrapnel wound to the back during his combat service in Vietnam. All opinions should be supported by a medical explanation or rationale. 2. Then, readjudicate the appeal. If the benefit sought on appeal remains denied, the AOJ should issue a Supplemental Statement of the Case. Then the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs