Citation Nr: 1802165 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-17 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial disability rating for lumbar degenerative disc disease, status post laminectomy, in excess of 20 percent prior to February 13, 2013 and a disability rating in excess of 40 percent thereafter. 2. Entitlement to an initial disability rating in excess of 20 percent for lumbar radiculopathy of the lower left extremity 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a psychiatric disorder, to include PTSD. 5. Entitlement to service connection for a traumatic brain injury (TBI), to include as due to service-connected disabilities. 6. Entitlement to a total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1994 to May 1997, with additional subsequent service in the United States Army National Guard and the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2011 (back and radiculopathy), August 2012 (PTSD and TBI), April 2014 (back) and January 2016 (TDIU) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Concerning the Veteran's claim for service connection for a TBI, the Board has recharacterized the issue to better reflect the evidence of record, which suggests that the Veteran's TBI could possibly be due to his service-connected disabilities. By way of history, in October 2010, the Veteran submitted a claim for a back condition. A February 2011 rating decision granted a 20 percent disability rating for lumbar degenerative disc disease, status post laminectomy, effective October 19, 2010 (with a period of a temporary total disability rating from December 3, 2010 to February 1, 2011). The rating decision also granted service connection for lumbar radiculopathy of the left lower extremity at 20 percent, effective October 19, 2010 In July 2011, the Veteran submitted a claim to increase his disability ratings and an August 2012 rating decision denied the increase and continued the ratings at 20 percent each for the Veteran's lumbar degenerative disc disease and lumbar radiculopathy disabilities. The Veteran filed a notice of disagreement (NOD) and in April 2014, the RO issued a rating decision increasing the Veteran's lumbar degenerative disc disease disability rating to 40 percent, effective February 13, 2013. The Board finds that the Veteran's July 2011 claim was received within one year from the February 2011 rating decision and must be construed as an NOD; effectively preserving his appeal for entitlement to initial disability ratings in excess of 20 percent for lumbar degenerative disc disease, status post laminectomy, and in excess of 20 percent for lumbar radiculopathy of the left lower extremity. As such, the appeals stem from the February 2011 rating decision. Further, the Board notes that while the April 2014 rating decision granted an increased disability rating for the Veteran's lumbar degenerative disc disease disability, this increase did not constitute a full grant of the benefit sought, and therefore, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). With regard to the issue of a psychiatric disorder, claimed as PTSD, in the August 2012 rating decision, the RO denied to reopen the Veteran's claim for entitlement to service connection for PTSD. However, although the RO denied reopening the claim, the Board must make its own determination as to whether the Veteran has submitted new and material evidence to reopen his claim for entitlement to service connection for PTSD. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board notes that claims for service connection for psychiatric disorders, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). While the Veteran has asserted a claim of service connection for PTSD specifically, the record indicates assessments of other acquired psychiatric disorders, such as major depressive disorder, anxiety disorder with panic attacks, and cognitive disorder, not otherwise specified. Accordingly, the Board has recharacterized the issue on appeal. In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During that hearing, the Veteran waived RO review of all new evidence. A transcript of that proceeding has been associated with the record. The issues of entitlement to increased disability ratings for lumbar degenerative disc disease, status post laminectomy, and lumbar radiculopathy of the left lower extremity; entitlement to service connection for a TBI and a psychiatric disorder, to include PTSD; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed January 2009 rating decision denied entitlement to service connection for PTSD. 2. New evidence received since the January 2009 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The January 2009 rating decision, which denied the claim of service connection for PTSD, became final. 38 U.S.C. § 7105(b), (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2017). 2. The additional evidence received since the January 2009 rating decision is new and material, and the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. II. Merits of the Claim to Reopen The Veteran seeks to reopen a previously denied claim for entitlement to service connection for PTSD. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 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. 38 C.F.R. § 3.156(a). 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. Id. 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, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the January 2009 rating decision that denied service connection for PTSD, the evidence of record consisted of service treatment records, the Veteran's DD 214, and an undated private treatment record from Dr. K. M. The private treatment record noted that while the Veteran served on active duty in Haiti, he was "shot at" and witnessed a friend commit suicide. Dr. K. M. diagnosed the Veteran with PTSD. The RO denied service connection for PTSD, stating that service treatment records did not show treatment for or a diagnosis of a mental disability. Further, the Veteran's DD 214 failed to show foreign service and the RO was unable to retrieve personnel records from the National Personnel Records Center based on the information provided by the Veteran. The RO informed the Veteran that they could properly develop his claim and request additional records if he returned VA Form 21-0781 with information such as the unit he served with in Haiti or the names of people who died. The Veteran was properly notified of the rating decision in a January 2009 notification letter and failed to provide the requested information. The January 2009 rating decision became final. The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD which, as noted above, has been recharacterized to include all psychiatric disorders. Since the January 2009 rating decision, the evidence received into the record includes lay statements concerning the Veteran's psychiatric disability and private and VA treatment records. Specifically, a May 2014 lay statement submitted by J. L., a friend that served with the Veteran from February 1994 to April 1997, stated that he and the Veteran had been deployed to Haiti in 1994 for Operation Uphold Democracy as part of the 1/22 Infantry Brigade. They served in the same combat platoon and spent much time together in the high-stress environment. The Board finds that this evidence received subsequent to the January 2009 rating decision which denied service connection for PTSD satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claim. This document was not of record at the time of the prior final denial and provides evidence towards substantiating the Veteran's active duty service in Haiti. Further, information contained in the new evidence provides details that may assist the RO with verifying the Veteran's in-service stressors. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of service connection for PTSD. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed. ORDER New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is reopened, and to this extent only, the appeal is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). In the July 2017 Board hearing, the Veteran testified that he suffered from constant back pain and numbness in his left leg because of his lumbar degenerative disc disease and lumbar radiculopathy disabilities. The nerve damage in his back caused his left leg to give out on him twice a day, which sometimes led to falls. The Veteran took Percocet and Gabapentin for the pain. He used a cane to assist with walking and sometimes used a walker after a fall. The Veteran reported that he had not visited a doctor in over a year and treated himself with bedrest when needed. He was provided with VA examinations for his lumbar degenerative disc disease and left leg radiculopathy in February 2013 and December 2016; however, the Veteran testified that his disabilities had worsened since these examinations. Therefore, as it seems the Veteran's disabilities may have worsened since his last VA examinations, the Board determines that contemporaneous VA examinations are necessary to ascertain the current severity of the Veteran's service-connected lumbar degenerative disc disease and lumbar radiculopathy disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 408 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). With regard to the Veteran's claim for service connection for a TBI, the Veteran asserts that while on active duty, he was repelling down a wall when his rope snapped. See July 2011 VA Treatment Record and July 2017 Board Hearing Transcript. He fell 30 to 40 feet and believed he suffered a TBI. The Board notes that the Veteran has not been provided with a VA examination to determine if his TBI is etiologically linked to active duty or to a service-connected disability. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the Veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Review of the record shows that an August 1994 service treatment record noted the Veteran's complaints of back pain due to a one-story fall when repelling out of a building. An April 2014 lay statement submitted by a fellow solider corroborates that the Veteran fell from a very high distance down a rappelling tower. A July 2011 VA treatment record noted a history of sustained TBIs in service and psychiatric comorbidities. The physician indicated that it was unclear how much of the Veteran's current deficit was due to TBI, but it was clear that the Veteran had significant functional decline. In a December 2011 request for continued disability benefits, the Veteran's physician indicated that the Veteran had suffered a TBI which impacted his ability to work. Further, the Board notes that treatment records show multiple falls due to the Veteran's service-connected lumbar degenerative disc disease and lumbar radiculopathy disabilities. See, e.g., June 2011, June 2012, and February 2013 Private Treatment Records and August 2012 VA Treatment Record. A December 2015 VA examination conducted in connection with the Veteran's claim for entitlement to TDIU noted that the Veteran's "left leg gives out due to [his] back problem with radiculopathy resulting in frequent falls sometimes causing head injuries." The Veteran also testified that he suffered multiple concussions as a result of his many falls. See July 2017 Board Hearing Transcript. As there is evidence of a current disability and evidence of a fall in service and falls post-service due to service-connected disabilities, the Board finds that the Veteran should be afforded a VA examination to clarify whether the Veteran has a diagnosis of a TBI and if so, whether it is etiologically linked to active duty or to a service connected disability. Next, with regard to the Veteran's claim for service connection for a psychiatric disability, to include PTSD, a December 2013 VA examination diagnosed the Veteran with PTSD, major depressive disorder, anxiety disorder with panic attacks, and cognitive disorder, not otherwise specified. The VA examiner determined that the Veteran's PTSD was due to his claimed in-service stressors and that his other psychiatric disorders were secondary to his PTSD, but that it was not possible to differentiate the symptoms. The Board notes that the law requires verification of a claimed in-service stressor in cases where the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat. The Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396. A review of the evidentiary record shows that although the Veteran's DD 214 does not list any foreign service, the "Remarks" section of the form shows that the Veteran served in Haiti from September 19, 1994 to January 20, 1995. An April 2014 buddy statement submitted by J. L., who served with the Veteran, noted that they were deployed to Haiti together on Operation Uphold Democracy as a part of the 1/22 Infantry Brigade. Further, in the July 2017 Board hearing, the Veteran testified that he served in the same company as his friend that committed suicide, except the Veteran was in the 2nd Platoon and his friend was in the 3rd Platoon. Given the additional information available since the last attempt to develop the Veteran's in-service stressors, the Board finds that further development of the Veteran's in-service stressors is necessary to fairly adjudicate his claim. Finally, the decisions on the issues remanded herein may impact the Veteran's claim for TDIU. Therefore, the Board finds these issues to be inextricably intertwined and the Board must remand the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). While on remand, an effort to obtain the Veteran's military personnel records should be made, as it appears they have not been associated with the evidentiary record. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate resources to obtain the Veteran's military personnel record. All efforts made to locate these records should be documented in the electronic claims file. 2. Send the Veteran a letter requesting any pertinent information to assist VA in attempting to verify any in-service stressors. After the Veteran has been given the opportunity to respond to the letter, and regardless of whether he responds, attempt to verify the Veteran's claimed in-service stressors using the information provided since the January 2009 rating decision. This information includes the Veteran's service in Haiti from September 19, 1994 to January 20, 1995 during Operation Uphold Democracy with the 1/22 Infantry Brigade, 2nd Platoon. The Veteran states that his friend that committed suicide served in the 3rd Platoon with the same company. This development must include contacting the Joint Services Records Research Center (JSRRC) and providing them with all the information the Veteran has provided and all the pertinent information contained within the evidentiary record. If the JSRRC is unable to verify the claimed stressors and identifies another agency that may be able to do so, the RO must contact the identified agency. All attempts to verify the Veteran's claimed stressors must be documented in the electronic claims file. 3. Schedule the Veteran for a VA examination, with an appropriate examiner, to evaluate the severity of his service-connected lumbar degenerative disc disease disability. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should also discuss the impact, if any, the Veteran's lumbar degenerative disc disease disability has on his activities of daily living, including his ability to obtain and maintain employment. 4. Schedule the Veteran for a VA examination, with an appropriate examiner, to evaluate the severity of his service-connected lumbar radiculopathy of the left lower extremity disability. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire. The examiner should also discuss the impact, if any, the Veteran's lumbar radiculopathy of the left lower extremity disability has on his activities of daily living, including his ability to obtain and maintain employment. 5. Schedule the Veteran for a VA examination, with an appropriate examiner, in order to obtain a medical opinion as to the nature and etiology of his TBI. The claims file, including a copy of this remand, must be provided to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. Based on a review of the Veteran's claims file, and after a thorough examination, the examiner is asked to: (a) Identify whether the Veteran meets the criteria for a TBI and address any conflicting medical evidence of record. (b) If the Veteran has a current diagnosis of TBI, is it as least as likely as not (50 percent probability or greater) that his TBI was incurred in or otherwise due to active duty service? (c) If the Veteran has a current diagnosis of TBI, is it as least as likely as not (50 percent probability or greater) that his TBI is caused by falls from his left leg giving out due to his service-connected lumbar degenerative disc disease and lumbar radiculopathy disabilities? (d) If the Veteran has a current diagnosis of TBI, is it as least as likely as not (50 percent probability or greater) that his TBI is aggravated beyond its natural progression by falls from his left leg giving out due to his service-connected lumbar degenerative disc disease and lumbar radiculopathy disabilities? In rendering an opinion, the examiner should note and discuss the Veteran's reported incident of falling 30 to 40 feet when he was repelling down a wall in service. The examiner should also note and discuss the Veteran's reports of receiving concussions after falls due to his leg giving out. The examiner should consider and discuss the Veteran's subjective history as well as the pertinent medical evidence of record. The examiner must provide a rationale for any opinions expressed and reconcile any contradictory evidence of record. If the examiner is unable to render an opinion, he/she should so state with supporting rationale. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. 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). The claims 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 (2014). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs