Citation Nr: 18142400 Decision Date: 10/16/18 Archive Date: 10/15/18 DOCKET NO. 14-15 346 DATE: October 16, 2018 ORDER New and material evidence has been received to reopen a claim of service connection for a back disability. To that extent, the claim is granted. Entitlement to service connection for an unspecified depressive disorder is granted. Entitlement to service connection for mental illness for the purpose of establishing eligibility for treatment only, under the provisions of 38 U.S.C. § 1702 is dismissed. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a heart condition is remanded. FINDINGS OF FACT 1. A December 2007 rating decision denied service connection for residuals of a back injury. 2. Evidence added to the record since the December 2007 rating decision provides a reasonable possibility of substantiating the claim for a back disability. 3. The Veteran’s unspecified depressive disorder began during active service. 4. The Board’s grant of service connection for unspecified depressive disorder renders the issue of service connection for a mental illness for the purpose of establishing eligibility for treatment moot. CONCLUSIONS OF LAW 1. The December 2007 rating decision that denied service connection for residuals of a back injury is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the December 2007 rating decision is new and material, and the claim for service connection for a back disability is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for an unspecified depressive disorder are met. 38 U.S.C. §§ 1110 (wartime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The appeal on the issue service connection for mental illness for the purpose of establishing eligibility for treatment only, under the provisions of 38 U.S.C. § 1702 is dismissed as moot. 38 U.S.C. § 1702; 38 C.F.R. §§ 17.109(b), 17.37. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1993 to November 1997. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran has submitted additional evidence with a waiver of RO jurisdiction consideration. 38 C.F.R. §§ 19.31, 20.1304 (2017). Claim to Reopen The Veteran seeks to reopen a claim of entitlement to service connection for his back disability. The claim was previously denied in a December 2007 rating decision because there was no evidence of a chronic disability in service or after. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Since the December 2007 rating decision, on May 2013 VA examination lumbar disc disease was diagnosed. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim; that is, whether the Veteran has a currently diagnosed disability. Evidence of record at the time of the December 2007 denial included the Veteran’s service treatment records (STRs), VA treatment records, and lay statements, which noted the Veteran had a history of chronic back pain, but no diagnosed disability. The new evidence, the May 2013 VA examination, includes a currently diagnosed back disability. The evidence is neither cumulative nor redundant of the evidence previously considered and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. Service Connection The Veteran contends that he has an acquired psychiatric disability that began during his active duty service. The Board concludes that the Veteran has a current diagnosis of an unspecified depressive disorder that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). At the June 2017 hearing, the Veteran testified that his psychiatric problems began during service and he felt despair, likely caused by his environment. He further testified that he felt “out of touch” with reality when he was separated overseas, but did not seek treatment. In a May 2018 private mental examination, the Veteran was diagnosed with an unspecified depressive disorder, and the private provider opined that based on her interview of the Veteran and a review of his claims file, the Veteran’s unspecified depressive disorder more likely than not began during his active duty service and has continued uninterrupted to the present. The provider found that the Veteran’s decline in his behavior was documented in his claims file, as reflected in his STRs documenting no mental health issues reported on entrance to service; a January 1997 report of left-sided chest pains that comes and goes; April 1997 report of trouble sleeping; chest pains and borderline hypertension on October 1997 service separation examination; and post-service VA treatment records from 2009 to 2016 that reflected diagnosis of paranoid schizophrenia and schizoaffective disorder. The provider noted that some of the physical complaints seen in the Veteran’s STRs “could be” attributed as a manifestation of mental health symptomatology. Affording the Veteran the benefit of the doubt, service connection for unspecified depressive disorder is granted. Eligibility for Treatment The Veteran also seeks service connection for purposes of establishing eligibility to VA treatment. The Board’s decision above to grant service connection for a mental health condition makes this issue essentially moot as he will be entitled to VA treatment for the now-service-connected psychiatric disorder. See 38 C.F.R. § 17.37 (b). Accordingly, the matter is dismissed. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a heart condition is remanded. Further development of the record is needed for a proper de novo consideration of the claim for a back disability. The Veteran asserts that his back disability is related to a 1996 in-service motor vehicle accident while on leave. In June 2017 he testified that he received treatment following that accident at Womack Army Hospital. A remand is required to allow VA to request these potentially relevant records. Additionally, on May 2013 VA back examination, the VA examiner based his negative nexus opinion, in part, on the lack of documentation of treatment for his injury after a motor vehicle accident while in-service. Accordingly, on remand a new examination should be obtained. Regarding the Veteran’s claim for service connection for a heart condition, On May 2014 VA examination the examiner noted that the Veteran complained of intermittent sharp chest pains on his service separation examination, but provided a negative opinion on the basis there was no objective evidence of continuity of symptoms post-service and no objective evidence of any type of chronic heart condition during active duty or within close proximity to separation from service. However, the examiner did not discuss the significance, if any, of the notation of borderline hypertension at service separation examination, or his credible lay assertions that he continued to have the same type of chest pains following his separation from service. Accordingly, a new examination is necessary. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992).   The matters are REMANDED for the following action: 1. Obtain records of any treatment from Womack Army Hospital in 1996. Document all requests for information as well as all responses in the claims file. 2. Obtain the names and addresses of all medical care providers who treated the Veteran for any back or cardiac complaints since service. After securing the necessary release, take all appropriate action to obtain these records, including updated VA treatment records since October 2016. 3. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all currently diagnosed back disabilities. (b.) For each currently diagnosed back disability, is it at least as likely as not related to an in-service injury, event, or disease, to include a claimed in-service 1996 motor vehicle accident? The examiner should consider and discuss as necessary the Veteran’s lay statements that his back disability began during service and that he had continued symptomatology since service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 4. After the completion of (1) and (2), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart condition. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all currently diagnosed heart conditions. (b.) For each currently diagnosed heart disability, is it at least as likely as not related to an in-service injury, event, or disease? The examiner should consider and discuss as necessary the report of chest pain that comes and goes and a notation of borderline hypertension on the Veteran’s October 1997 service separation examination, and his lay statements that he continued to have the same type of chest pains since service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs