Citation Nr: 18141923 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-33 966 DATE: October 11, 2018 ORDER The petition to reopen a previously denied claim for entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia and posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The claim for service connection for a low back disability was denied in an March 2000 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to March 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The petition to reopen a previously denied claim for entitlement to service connection for a low back disability The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Additionally, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low evidentiary threshold has been 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 consider whether the evidence could reasonably substantiate the claim, were the claim to be reopened. Shade, 24 Vet. App. at 118. In a March 2000 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a low back disability. The RO found that there was “no record of a back condition showing a chronic disability subject to service connection.” A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the March 2000 rating decision is final. Since the previous denial, in July 2013, the Veteran stated that his back problems were related to constant marching on 3 to 4 inches of ice and falling on his back while holding an M-16. In March 2014, the Veteran stated that he injured his back while moving 50-gallon waste drums. As the Veteran’s statements were not previously reviewed by agency decisionmakers, the Board finds that the evidence is new. The Board further finds that the Veteran is also material. It raises a possibility of substantiating the claim when considered with the old evidence. See Shade. The Veteran’s statements about in-service injuries is material because when considered with the post-service evidence of back pain it relates to an unestablished fact necessary to substantiate the claim and triggers the duty to assist by providing a medical examination. Accordingly, the Veteran’s claim for service connection for a low back disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran contends that his back disability is related to in-service constant marching on ice; moving 50-gallon drums of waste and falling on his back while holding an M-16. He states that he never complained about his back pain because he wanted to serve his country. Post-service he was diagnosed with low back pain. The Veteran was not afforded a VA examination in connection with his claim for service connection for a low back disability. A VA examination is required where the record includes (1) competent evidence of a current disability or continuous symptoms since service; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a Veteran’s service or with another service-connected disability; and (4) lack of sufficient competent evidence upon which the Board can decide the claim. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is evidence that the Veteran may have a current back disability. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018)(where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability.) There is also evidence of an in-service injury. However, there is insufficient evidence of record to decide the claim. Therefore, the Board finds that a remand is necessary to obtain a VA examination which assesses whether the Veteran suffers from a current back disability that is related to service. 2. Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia and posttraumatic stress disorder (PTSD) is remanded. The Veteran was not afforded a VA examination in connection with his claim for service connection for an acquired psychiatric disability. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); see also McLendon, supra. Here, there is evidence that the Veteran has been treated for a psychiatric disability. There is evidence he was diagnosed with chronic schizophrenia during service, but insufficient evidence upon which the Board can decide the claim. There is also evidence that the Veteran may have suffered from a psychiatric disability prior to service. See Veteran’s October 2015 correspondence; March 1973 Medical Board discharge. However, the Veteran’s October 1972 entrance examination does not list any psychiatric disability. Therefore, the presumption of soundness applies. On remand, the Veteran should be afforded a VA examination to determine whether he clearly and unmistakably suffered from a psychiatric disability prior to service, and if so, whether it clearly and unmistakably was not aggravated by service. If the examiner finds that an acquired psychiatric disability did not preexist service, then an opinion as to whether the Veteran’s current psychiatric disability is related to active service should be obtained. There is evidence that the Veteran is incarcerated and was recently transferred to a different penitentiary unit than he was previously held when he first filed his claim. Any treatment records from the facility in which he is currently housed, must be requested and obtained on remand. If necessary, the Veteran’s authorization for such records should be obtained prior to the request. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information regarding any outstanding pertinent treatment records, particularly any treatment records at the correctional facility which he is currently housed. Ask the Veteran to authorize the release of any identified outstanding non-VA medical records. 2. The Veteran is currently incarcerated in custody of the Texas Department of Criminal Justice. Recent correspondence from the VA to the Veteran has been returned undeliverable. See December 2017 Returned Mail. A recent inmate search conducted by the Board has revealed that the Veteran was previously in the Jester III Unit but may currently be in the Estelle Unit (264 FM 3478 Huntsville, Texas 77320). The AOJ should confirm the Veteran’s current location before making arrangements to schedule the VA examinations. 3. Take all reasonable measures to schedule the Veteran for the examinations requested below. This includes determining the appropriate prison official with the authority to make a decision on this matter and obtaining a definitive answer from that official. Confer with the appropriate official to determine whether the Veteran may be escorted to a VA medical facility for examination. See M21-1, Part III.iv.3.A.11.d. If that is not possible, address the feasibility of scheduling the Veteran at the prison by (1) VHA personnel; (2) prison medical providers at VA expense with an appropriate Disability Benefits Questionnaire (DBQ); or (3) fee-basis providers contracted by VHA. If such examination is feasible, the examinations should be scheduled at the prison. If none of the options are feasible, fully explain why none of the examinations could be scheduled. If it is possible for the Veteran to be examined, schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to determine the nature and etiology of any current psychiatric disability, including PTSD and schizophrenia. The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. Psychiatric testing should be accomplished. The VA examiner’s opinion should specifically address the following: (a) Diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis. The examiner’s attention is directed to a March 1973 diagnosis of chronic schizophrenia. (b) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that any psychiatric disability pre-existed active service. See Veteran’s October 2015 correspondence; March 1973 Medical Board discharge. Please provide a complete explanation for the opinion. (c) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing psychiatric disability WAS NOT aggravated (i.e., permanently worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. (d) If it did not preexist service, the examiner must opine as to whether any current psychiatric disability at least as likely as not (a probability of 50 percent or greater) began in or is related to service. (e) If a diagnosis of PTSD is warranted, specify whether that diagnosis is related to the Veteran’s fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (f) If a diagnosis of PTSD is warranted, and is not due to a fear of hostile military or terrorist activity, specify the specific claimed in-service stressor or stressors upon which that diagnosis is based. If an examination is not possible, forward the Veteran’s claims folder to a VA psychiatric examiner for review, to include any medical records obtained as a result of this remand, and any lay statements submitted by the Veteran relative to his claim. The examiner is requested to review the claims folder in order to render an opinion on the above referenced questions (a-f). The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. If it is possible for the Veteran to be examined, schedule the Veteran for a VA examination to determine the etiology of his low back condition. The Veteran’s claims folder, including a copy of this remand, must be made available to the examiner. The examiner is asked to offer an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a low back disability that is caused by or related to active service. If an examination is not possible, forward the Veteran’s claims folder to a VA orthopedic examiner for review, to include any medical records obtained as a result of this remand, and any lay statements submitted by the Veteran relative to his claim. The examiner is requested to review the claims folder in order to render an opinion on the above referenced question. The examiner is requested to address the Veteran’s lay statements of injuring his back in service after marching on 3 to 4 inches of ice; falling on his back while holding an M-16; and moving 50-gallon drums of waste. The examiner is also requested to address evidence that the Veteran has been diagnosed with low back pain. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018)(where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability . . .[however,] subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain.). 5. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel