Citation Nr: 1801103 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-28 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder. 3. Entitlement to service connection for hydromyelia. 4. Entitlement to a rating in excess of 20 percent for a service-connected lumbar spine disability, to include on an extraschedular basis. REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Marine Corps from February 2004 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2012, the Veteran requested a hearing before a Veterans Law Judge. A review of the file indicates that the Veteran submitted a request to withdraw the hearing in July 2017. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). The issues of entitlement to service connection for hydromyelia and entitlement to an increased rating for a lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a January 2014 rating decision, the Veteran's claim for service connection for an acquired psychiatric disability was denied as the evidence failed to link his acquired psychiatric disability to his active service. This decision was not appealed and no new and material evidence was submitted within a year of that decision. 2. The evidence received since the January 2014 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disability, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's depressive disorder is due to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The January 2014 rating decision denying service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received since the January 2014 rating decision that is sufficient to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for acquired psychiatric disability have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Veteran's claim of entitlement to service connection for an acquired psychiatric disability was denied in January 2014. The Veteran did not appeal the January 2014 rating decision, nor did he submit any new and material evidence within a year of the January 2014 rating decision. See 38 C.F.R. §3.156(b). The January 2014 rating decision thereby became final. At the time of the January 2014 rating decision, the record consisted of the Veteran's service treatment records (STRs), VA treatment records, and private medical records. Evidence received since the January 2014 rating decision includes additional private treatment records and VA treatment records, specifically the opinion of a private psychologist regarding the etiology of the Veteran's acquired psychiatric disability. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claim is reopened. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In March 2016, the Veteran filed his claim to reopen his service connection claim for an acquired psychiatric disability, which he asserts is secondary to his service-connected lumbar spine disability. In May 2016, the Veteran underwent a private Psychosocial Assessment. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the psychologist diagnosed the Veteran with depressive disorder secondary to low back pain. The psychologist opined that the Veteran's depressive disorder was more likely than not secondary to his lumbar spine disability. Although other medical opinions have reached the opposite conclusion regarding the Veteran's acquired psychiatric disability, the evidence for and against the Veteran's claim is in at least relative equipoise. As such, the criteria for service connection for an acquired psychiatric disability have been met and the Veteran's claim is granted. ORDER New and material evidence has been presented, and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Service connection for an acquired psychiatric disability is granted. REMAND Regarding the service connection claim, the Veteran has been granted service connection for a lumbar spine disability. He filed a service connection claim for hydromyelia in October 2010. The first objective medical evidence documenting hydromyelia is in a March 2010 thoracolumbar spine. At a November 2011 VA examination, the examiner reported that the Veteran's hydromyelia was discovered after his separation from service and was likely related to occult congenital malformation of the neural tube. A February 2012 VA examiner reviewed the Veteran's claims file and reported that the Veteran's thoracolumbar spine MRI findings were very suggestive of a congenital birth defect that had been asymptomatic. In March 2016, the Veteran's physician Dr. Matthew A. Taylor reported that hydromyelia could potentially arise secondary to an injury, although it was sometimes congenital in nature. VA does not consider congenital or developmental defects to be diseases or injuries for compensation purposes, and such defects are not generally subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9; see Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible in such cases when there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. The record contains no medical opinion evidence regarding aggravation by the Veteran's service-connected lumbar spine disability. As such, a new VA examination is required. Regarding the increased rating claim, the Board finds that an additional VA examination is needed to accurately evaluate the Veteran's service connected lumbar spine disability as the last complete examination is almost two years old, having occurred in March 2016. In addition, the Veteran asserts that he has increased symptomology related to his lumbar spine disability, to include radiculopathy and bowel incontinence. While the Veteran is service connected for left lower extremity radiculopathy, he is not service connected for right lower extremity radiculopathy. As such, a new examination is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination. The examiner should determine the current nature and severity of the Veteran's hydromyelia. The examiner then should address the following questions: a. Is the Veteran's hydromyelia a congenital defect, a congenital disease, or neither? Why or why not? b. If the Veteran's hydromyelia is a congenital defect, was additional disability superimposed upon that defect during service? Why or why not? c. If the Veteran's hydromyelia is a congenital disease, is it at least as likely as not that such disease was aggravated during active service? Why or why not? d. If the Veteran's hydromyelia is neither a congenital defect nor a congenital disease, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hydromyelia either began during or was otherwise caused by his active service? Why or why not? e. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected lumbar spine disability caused his hydromyelia? Why or why not? f. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected lumbar spine disability aggravated his hydromyelia? Why or why not? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lumbar spine disability, to include any lower extremity radiculopathy diagnosis and/or bowel incontinence. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the examination report include the results of the Veteran's active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained why. Failure to do so will result in an examination report being found inadequate. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs