Citation Nr: 1803208 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-01 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for low back pain. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for bilateral knee cramps. 3. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection paroxysmal supraventricular tachycardia (PVST). 4. Entitlement to service connection for a low back disorder. 5. Entitlement to service connection for bilateral knee disorder. 6. Entitlement to service connection for PSVT. 7. Entitlement to service connection for agoraphobia. 8. Entitlement to service connection for obsessive compulsive disorder (OCD). 9. Entitlement to an evaluation in excess of 50 percent prior to March 26, 2012, and an evaluation in excess of 70 percent from March 26, 2012 to July 11, 2012 for disability with associated posttraumatic stress disorder (PTSD) disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and S.W. ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1992 to December 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal form an August 2011 rating decision by the Department of Veterans Affairs, Regional Office located in Nashville, Tennessee (RO), which in pertinent part, declined to reopen the previously denied claims for service connection, denied service connection for asthma, agoraphobia, and OCD, and increased the assigned evaluation to 50 percent for anxiety with PTSD disability. The Veteran filed a timely notice of disagreement in October 2011 and April 2012 with respect to each of these issues. He was issued a December 2013 statement of the case (SOC) which only addressed the previously denied claims and service connection for asthma. He perfected his appeal. The Veteran still needs to be issued a SOC with respect to the other issues. In a November 2013 rating decision, the RO increased the assigned evaluation to 70 percent, effective from March 26, 2012, and then to 100 percent, effective from July 12, 2012 for anxiety with PTSD disability. As the increase to 100 percent did not represent a total grant of the benefits sought on appeal for the period prior to July 12, 2012, the claim for an increased rating for the period prior to July 12, 2012 remains. In a July 2015 rating decision, the RO awarded service connection for asthma and assigned a 30 percent evaluation, effective from April 10, 2010. As this represents an award of the full benefit sought, the matter is no longer on appeal. In December 2016, the Veteran and his spouse testified before the undersigned during a Board hearing held via videoconference. A copy of the hearing transcript has been associated with the claims folder. The issues of entitlement to service connection for bilateral knee disorder, PSVT, agoraphobia, and OCD, and entitlement to increased rating prior to July 12, 2012 for anxiety with PTSD 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 February 1997 rating decision, the RO denied the claims for entitlement to service connection for bilateral knee cramps and PSVT and the Veteran did not appeal that decision. 2. In a September 1997 rating decision, the RO continued the denial of the claim for entitlement to service connection for low back pain and the Veteran did not appeal that decision. 3. Evidence received since the February 1997 and September 1997 rating decisions includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 4. The competent and credible evidence of record demonstrates that the Veteran's current lumbar spine disorder, lumbosacral strain, cannot be satisfactorily disassociated from his period of active service. CONCLUSIONS OF LAW 1. The criteria to reopen a previously denied claim for entitlement to service connection for low back pain have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria to reopen a previously denied claim for entitlement to service connection for bilateral knee cramps have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to reopen a previously denied claim for entitlement to service connection for PVST have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for entitlement to service connection for low back disorder, lumbosacral strain, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, in view of the Board's favorable decisions to reopen the previously denied claims and to grant service connection for a low back disorder, any further discussion as to the duties to assist and notify is not necessary. 2. Petition to Reopen Previously Denied Claims Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103 (2017). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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) (2017). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Review of the file shows that the Veteran originally filed his claims for entitlement to service connection for low back pain, bilateral knee cramps, and PVST in January 1997. His claims were denied in a February 1997 rating decision based on a determination that the evidence of record failed to demonstrate that the Veteran had current chronic disorders involving his back and knees that had an onset during his period of service or were otherwise related to his period of service, and determination that his PVST existed prior to service and was not aggravated therein. Shortly thereafter, the Veteran submitted additional medical records with respect to his back only, and he was afforded a VA spine examination in May 1997. The RO reconsidered the Veteran's claim for low back pain, but continued the denial of the claim in a September 1997 rating decision based on a determination that the evidence of record failed to demonstrate that the Veteran's current back disorder was related to his period of service. The February 1997 and September 1997 rating decisions were not appealed nor was new and material evidence submitted within one year, respectively. Accordingly, the determinations are final. 38 C.F.R. §§ 3.156 (b), 20.1103. The Veteran now seeks to reopen his claims. In August 2011, the RO found that the Veteran had not submitted new and material evidence to reopen his previously denied claims. The Veteran then submitted additional evidence, and the RO conducted additional development of the merits the claims for service connection for low back disorder and PSVT by providing him with June 2011 VA spine and heart examinations. In the December 2013 statement of the case (SOC), the RO reopened the Veteran's claim for service connection for low back disorder, and confirmed and continued the previous denial. The RO did not reopen the claims for service connection for bilateral knee cramps or PSVT in the December 2013 SOC. Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The evidence received since the February 1997 and September 1997 rating decisions, includes in pertinent part, a June 2010 private medical statement that links the Veteran's low back disorder to his period of service, and an April 2017 Heart Disability Benefit Questionnaire (DBQ) that suggests the Veteran's PVST is aggravated by his service-connected anxiety with PTSD disability. In addition, the Veteran has provided testimony during a December 2016 Board hearing regarding each issue. He testified that he injured his knees in service and he has been diagnosed with arthritis in both knees, all of which was not previously of record. He also stated that he did not have any heart problems prior to service and that his treating doctors have informed him that his PVST is secondary to his service-connected hypertension and psychiatric disabilities. Finally, the Veteran provide testimony regarding multiple injuries to his back from heavy lifting and moving while performing his duties as a supply specialist during his period of service. The additional lay evidence of record goes towards the elements of in-service injuries for low back, knees, and PVST disorders, and the medical evidence provides nexus evidence with respect to the claims for low back disorder and PVST, none of which was previously present for the claimed disorders. As such, it is sufficient to reopen the previously-denied claims. Assuming its credibility for the purpose of establishing whether new and material evidence has been submitted, the foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims. Therefore, this evidence is new and material and reopening of the claims are in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). The Board will now proceed with the merits of the claim for service connection for a low back disorder. The claims for service connection for bilateral knee disorder and PSVT require additional development and are addressed in the remand portion. 3. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran contends he is entitled to service connection for a low back disorder. The Veteran asserts his current low back disorder was a result of injuries sustained while preforming heavy labor, such as moving lockers and lifting heavy storage containers, as a supply specialist during his period of service as well as while participating in training activities. See December 2016 Board hearing transcript. Notably, the post-service treatment records and a July 2012 VA examination report show that the Veteran has current diagnosis of lumbosacral strain. Element (1), a current disability, has been established. The Veteran's service treatment records show complaints and treatment for low back problems in August 1996. That record shows he complained of low back pain that was moderate to severe in severity and that radiated down into his legs. He reported a history of similar back pain for the past two years. There was evidence of limitation of motion due to pain on clinical evaluation. He complained of recurrent low back pain on his October 1996 report of medical history prior to separation, but his spine was evaluated as normal at that time. Given the evidence of back pain and injury during his period of service as well as the Veteran's competent and credible lay testimony, the Board finds that element (2) in-service injury, have been shown. The remaining question on appeal is whether the competent evidence demonstrates element (3) that the Veteran's current low back disorder is medically related to his in-service injury. Here, the Board finds that after resolving any doubt in the Veteran's favor, the competent evidence of record does support such a finding. Post-service medical records show that the Veteran has consistently complained of low back pain since service. See private and VA medical records since 1997, including a March 1997 private chiropractic treatment records, a May 1997 VA examination report, and an August 1999 VA treatment record. In a June 2010 private medical statement, Dr. J.C.D. noted that the Veteran reported history of chronic low back pain for the past 15 years which had an onset during his period of service while performing many strenuous tasks. Clinical examination and diagnostic evidence revealed findings of lumbar and pelvic subluxation with associated pain and muscle spasms. Dr. D. concluded that the Veteran's current lumbar spine disorder was consistent with his history of injury from heavy duty during military service. The Board has also considered the negative medical nexus opinion provided by the VA examiner in the June 2011 VA examination report. The VA examiner concluded that it was less likely than not that the Veteran's current lumbar spine disorder was incurred during or is otherwise related to his military service. The VA examiner found that the one incident of low back injury in August 1996 was considered mild and self-limiting and would not have caused him future back problems. This medical opinion was based on a review of the claims folder as well as the findings from clinical interview. The Board finds that neither of the medical nexus opinions is more probative than the other opinion. The positive medical opinion and the negative VA medical opinion are each supported by a pertinent reported history, clinical findings and a rationale statement. See Neives-Rodriguuez v. Peake, 22 Vet. App. 295, 304 (2008) (the most of the probative value of a medical opinion comes from the rationale that the examiner provided in support of his/her medical opinion). The Board finds that the medical nexus opinions in this case are at least in equipoise. In summary, the Board has found that the competent and credible evidence of record demonstrates that the Veteran's current low back disorder, lumbosacral strain, cannot be satisfactorily disassociated from his period of active service. Thus, the Board concludes that there is a reasonable doubt as to whether the Veteran's current cervical spine disorder is related to his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b) 38 C.F.R. § 3.10. ORDER As new and material evidence has been received, the claim for service connection for low back pain is reopened. As new and material evidence has been received, the claim for service connection for bilateral knee cramps is reopened. As new and material evidence has been received, the claim for service connection for PVST is reopened. Entitlement to service connection for a low back disorder is granted. REMAND The claims for entitlement to service connection for bilateral knee disorder and PSVT have been reopen based on new and material evidence, and the Board finds that additional development is needed prior to adjudication of those claims. In particular, the Board finds that the Veteran should be afforded VA examinations to obtain medical opinions on the nature and etiology of his claim disorders. The Veteran testified that he injured his knees while preforming heavy labor, such as moving lockers and lifting heavy storage items, as a supply specialist as well as while participating in training activities during his period of service. His service treatment records show complaints of bilateral knee pain in March 1996. The Veteran testified has since been diagnosed with arthritis in his knees. He should be afforded with a VA examination in conjunction with his claim. The Veteran should also be afforded with a VA examination with respect to the claim for service connection for PSVT. His service treatment records show that his heart and vascular system were evaluated as normal at the time of his September 1992 enlistment examination. A December 1994 service treatment record shows the Veteran complained of prolonged heart palpitations with associated symptoms of chest pain and shortness of breath. He reported a history of similar episodes of increased heart rate which lasted only a few seconds over the past year. He denied any previous evaluations. An EKG showed findings of regular heart rate with occasional PVCs. There was no evidence of a murmur and a cardiac event was ruled out. He was later assessed with PSVT. An August 1995 service hospital report shows he was hospitalized for two days. There was one episode of sinus tachycardia during a stress test. A diagnosis of PSVT was confirmed. It was noted that his PSVT was exacerbated by emotional stress and there was no evidence of organic heart disease. During the December 2014 Board hearing, the Veteran testified that he did not have any heart problems prior to his enlistment into service. The record contains a June 2011 VA examination report, but the examiner did not use the correct terminology in that medical opinion concerning whether the Veteran's PSVT existed prior to his enlistment. Notably, to rebut the presumption of sound condition under 38 C.F.R. § 1111 (2012) for disorders not noted on the entrance or enlistment examination, VA must show clear and unmistakable evidence not only that the disease or injury existed prior to service, but also that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July, 16, 2003). A VA medical opinion is needed that addresses whether there is clear and unmistakable evidence that the Veteran's PVST existed prior to service and was not aggravated by active duty. In addition, the Veteran has asserted, and he had provided medical evidence that suggests, his PVST is secondary to his service-connected anxiety with PTSD disability. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A VA medical opinion is needed that addresses whether the Veteran's PVST is proximately caused or aggravated by his service-connected disability. Finally, as noted in the Introduction, the Veteran has not yet been issued a statement of the case (SOC) relating to his claims for entitlement to service connection for agoraphobia and OCD, as well as entitlement to higher evaluations prior to July 12, 2012 for anxiety with PTSD disability. Since the Veteran has filed a timely notice of disagreement to the August 2011 rating decision with respect to those issues, the appellate process has been triggered and a remand is required to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case (SOC) with respect to the August 2011 rating decision and notice of disagreement therewith received in April 2012, regarding the issues of entitlement to service connection for agoraphobia and OCD, as well as entitlement to higher evaluations prior to July 12, 2012 for anxiety with PTSD disability. Notify the Veteran that to give the Board with jurisdiction over the issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2017). If the Veteran perfects an appeal, return the issue to the Board for appellate review. 2. Update the claims folder with the Veteran's VA treatment records dated since June 2017. 3. Schedule the Veteran for a VA examination with the appropriate specialist to determine the nature and etiology of his claimed bilateral knee disorder. The claims file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. Based on a review of the record, the examiner should address provide an opinion on whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's current right and left knee disorders had an onset during his period of service or are otherwise related to his period of service? In doing so, the examiner should consider the Veteran's reported medical history of knee injuries as well as in-service complaints of knee pain in March 1996. A complete rationale for all proffered opinions must be provided. 4. Schedule the Veteran for a VA examination with the appropriate specialist to obtain medical opinions on the etiology of the Veteran's PVST. The claims file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. Based on a review of the record, the examiner should address the following: a. Identify the nature of the Veteran's current cardiac disorder, to include PVST and rare ventricular ectopic beat. b. Is there clear and unmistakable evidence that the Veteran's PVST existed prior to his entrance into service. c. If there is clear and unmistakable evidence that Veteran's PVST existed prior to service was it also clearly and unmistakably, NOT aggravated (permanently worsened) by service. d. If the examiner determines that the Veteran did not have a cardiac disorder that existed prior to service, is at least likely as not that his current heart disorder had its onset during service or is otherwise related to service. e. Is it at least as likely as not related (50 percent or greater likelihood) that the Veteran has a current cardiac disorder that is proximately caused or aggravated by his service-connected anxiety with PTSD disability. In doing so, the examiner is asked to consider the medical evidence that the Veteran's heart palpitations are exacerbated by his anxiety symptoms. See August 1995 service treatment records, as well as a March 2017 VA cardio consultation report and an April 2017 Heart Disability Benefits Questionnaire. Aggravated for VA purposes means the condition is worsened beyond the natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's heart disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected anxiety with PTSD disability. A complete rationale for all proffered opinions must be provided. 5. 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 claim must be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representatives must be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs