Citation Nr: 18142644 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-09 873 DATE: October 16, 2018 ORDER 1. The appeal to reopen a claim of service connection for schizophrenia is granted. 2. The appeal to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. 3. Entitlement to service connection for a left ankle disability is denied. 4. Entitlement to service connection for a right ankle disability is denied. 5. Entitlement to service connection for traumatic brain injury (TBI) is denied. 6. Entitlement to service connection for headaches, to include as secondary to TBI, is denied. REMANDED 7. Entitlement to service connection for a left leg disability is remanded. 8. Entitlement to service connection for a right leg disability is remanded. 9. Entitlement to service connection for a left knee disability is remanded. 10. Entitlement to service connection for a right knee disability is remanded. 11. Entitlement to service connection for a psychiatric disability (other than PTSD), to include schizophrenia, is remanded. 12. Entitlement to service connection for PTSD is remanded. 13. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disorder (GERD) is remanded. 14. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed September 1980 rating decision denied service connection for a psychiatric disability, finding that there a chronic acquired psychiatric disability was not shown; an unappealed October 2002 rating decision declined to reopen a claim of service connection for a psychiatric disability, to include schizophrenia. 2. Evidence received since the October 2002 rating decision includes a medical opinion relating the Veteran’s schizophrenia to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for schizophrenia; and raises a reasonable possibility of substantiating such claim. 3. An unappealed September 2004 rating decision denied service connection for PTSD, based essentially on a finding that there was valid diagnosis of such disability. 4. Evidence received since the September 2004 rating decision includes a diagnosis of PTSD and a medical opinion relating it to the Veteran’s service; relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating such claim. 5., 6. A current chronic left or right ankle disability is not shown. 7. The Veteran is not shown to have a TBI-related disability. 8. A current chronic disability manifested by headaches is not shown, and it is also not shown that any such disability might be related to disease or injury in service or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for schizophrenia may be reopened. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received and the claim of service connection for PTSD may be reopened. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 3. Service connection for a left ankle disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. Service connection for a right ankle disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 5. Service connection for TBI is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 6. Service connection for a headache disability is not warranted; the claim of service connection for such disability as secondary to TBI lacks legal merit. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1973 to January 1976. These matters are before the Board on appeal from a December 2012 rating decision. Service Connection 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. However, 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. 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 claim should be reopened, the credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection is warranted for a disability that was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold one. The U. S. Court of Appeals for Veterans Claims (CAVC) interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. The appeal to reopen a claim of service connection for schizophrenia is granted. A September 1980 rating decision denied the Veteran service connection for a psychiatric disability, finding essentially that a chronic acquired psychiatric disability was not shown. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and that decision is final. 38 U.S.C. § 7105. An October 2002 rating decision found that new and material evidence was not received, and declined to reopen a claim of service connection for a psychiatric disability, to include schizophrenia. The Veteran was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and that decision is final. 38 U.S.C. § 7105. The evidence of record at the time of the October 2002 rating decision included the Veteran’s STRs, his lay statements, VA and private examinations, and VA and private treatment records. Evidence received since the October 2002 rating decision includes VA and private treatment records, a VA examination report, a report of a private examination, and lay statements by the Veteran. On September 2016 private examination, Dr. Boutin noted that the Veteran has a history of hallucinations, paranoia, and violent behavior with multiple psychiatric hospitalizations. Following a mental status examination and review of relevant records, the diagnoses were chronic PTSD and paranoid schizophrenia. Dr. Boutin opined that the most prevalent diagnoses upon review of the diagnoses throughout the years have been PTSD and schizophrenia, paranoid type, which were most consistent with the examination. Dr. Boutin further opined that it is more likely than not that the Veteran’s schizophrenia had its onset as a result [of stressors in service]. Evidence received since the October 2002 rating decision was not before agency decision-makers at that time, is new, and directly addresses an unestablished fact necessary to substantiate the claim of service connection for schizophrenia. It (specifically, a September 2016 private medical opinion) suggests that the Veteran’s schizophrenia may be related to his service/events therein. Considering the “low threshold” standard for reopening endorsed by the CAVC in Shade, the Board finds that the evidence is both new and material, and that the claim of service connection for schizophrenia may be reopened. De novo consideration of the claim is addressed in the remand below. 2. The appeal to reopen a claim of service connection for PTSD is granted. A September 2004 rating decision denied the Veteran service connection for PTSD based on a finding that there was no valid diagnosis of PTSD. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and that decision is final. 38 U.S.C. § 7105. The evidence of record at the time of the September 2004 rating decision included the Veteran’s STRs, his lay statements, and VA and private treatment records. Evidence received since the September 2004 rating decision includes VA and private treatment records, a report of private examination, and lay statements by the Veteran. On September 2016 private evaluation, the Veteran reported as stressor events that he was accidentally shot in the head by his first sergeant while participating in target practice, was involved in a truck/tank accident in Germany, and was falsely accused of fraud by the Army. He reported that the truck/tank accident exacerbated his symptoms of PTSD from the firing range shooting. Upon mental status examination and review of relevant records, the diagnoses were chronic PTSD and paranoid schizophrenia. Dr. Boutin opined that the most prevalent diagnoses upon review of the diagnoses throughout the years have been PTSD and schizophrenia, paranoid type, which were most consistent with the examination, and that it is more likely than not that the Veteran’s PTSD developed as a result of stressors in service (to include a history of being accidentally shot in the head, and being involved in a tank/truck motor vehicle accident which could have resulted in his death. He opined that being falsely accused of fraud by the U.S. Army exacerbated the Veteran’s paranoia and distrust. He opined that the Veteran’s reports of these stressors were credible and observed that the stressors were consistently reported over the course of many years. The evidence received since the September 2004 rating decision was not before agency decision-makers at that time, is new, and directly addresses an unestablished fact necessary to substantiate the Veteran’s claim of service connection for PTSD. It (specifically, medical evidence including a diagnosis of PTSD due to stressors in service) suggests that the Veteran may have a valid diagnosis of PTSD based on stressors in service. Considering the “low threshold” standard for reopening endorsed in Shade, the Board finds that the evidence is new and material, and that the claim of service connection for PTSD may be reopened. De novo consideration of the claim is addressed in the remand below. 3. , 4. Service connection for left and right ankle disabilities is denied. The Veteran contends that he has had ankle problems since a treadmill test for heart treatment. Alternately, he contends that his legs were injured in a tank crash during service, in 1975. His STRs are silent for any complaints, findings, treatment, or diagnosis of an ankle disability. On January 1976 service separation examination, his lower extremities were normal on clinical evaluation. On February 1986 VA physical examination, the lower extremities moved freely through full range of motion without difficulty; there was no tenderness, swelling, intra-articular fluid, or instability noted in any joints. There was no edema of the feet, ankles, or pre-tibial areas, and the feet were normal. A December 2004 emergency physician record notes that the Veteran fell about 4 feet from a ladder and twisted his left ankle three days prior; it was noted that this was a non-urgent problem. The postservice medical evidence is otherwise silent for complaint, finding, treatment, or diagnosis of an ankle disability. The threshold requirement that must be met with respect to this claim (as with any seeking service connection) is that there must be competent evidence that the Veteran currently has (during the pendency of the claim has had) the disability for which service connection is sought (chronic left and right ankle disabilities). See 38 U.S.C. §§ 1110, 1131. The record does not include any such evidence. Treatment records do not show a diagnosis of, or treatment for, a chronic disability of either ankle. The December 2004 [postservice] left ankle injury was acute and resolved, with no further record of complaint or treatment. A chronic disability of either ankle simply is not shown. The Veteran has not identified any physician who has diagnosed (or treated him for) a chronic left or right ankle disability. Accordingly, he has not presented a valid claim of service connection for left and right ankle disabilities, and the appeal in the matters must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). 4. , 5. Service connection for TBI and for headaches, to include as secondary to TBI, is denied. The Veteran contends that he sustained a TBI from being shot in the head (while wearing a helmet) during target practice, and has a headache disorder secondary to such TBI. His STRs and service personnel file are silent for complaint, finding, treatment, or diagnosis of TBI, or an incident possibly resulting in TBI. In a January 1973 service entrance report of medical history, he reported a history of postural dizziness or fainting spells and nonspecific chest pain. In December 1975, he complained of shortness of breath and headache in the forehead region for 5 days; the impression was upper respiratory infection. The STRs are otherwise silent for complaints, findings, treatment, or diagnosis of headaches. On January 1976 service separation examination, neurologic clinical evaluation was normal; there was no indication of TBI or a headache disorder. On February 1986 VA examination, the Veteran reported sinus trouble with draining and congestion in the nose and severe headaches in the forehead; he did not report treatment for the complaints. His head, face, neck, nose, and sinuses were normal on physical examination. The diagnoses included, in pertinent part, sinusitis. On January 1990 private psychiatric evaluation, the Veteran denied any brain injuries. In an October 2011 statement, the Veteran alleged that he was shot in the head during service (when a first sergeant who was clearing weapons on a firing line in Bamberg, Germany, discharged a round that struck his helmet). He alleged that he has mental health problems and headaches stemming from that incident. On June 2012 VA mental diseases examination, the Veteran reported that he was in an accident involving his vehicle crashing into a tank during a training exercise, and that he self-treated by splinting his ankle, with no loss of consciousness or confusion and no treatment provided. He denied headaches or problems with concentration. The examiner opined that there was no TBI event. The examiner opined that there was no mental health condition or reduction in cognitive functioning resulting from a TBI incident; there is no objective evidence and the Veteran did not report a history of TBI to the examiner. The Veteran did not report any residuals of any event (tank accident or getting shot in the head). On examination, he denied having any mental health disorder symptoms, appeared stable, and reported his mood was good. On June 2012 VA TBI examination, the Veteran reported that he was shot during a training exercise that went badly. He reported that while he was in a bunker on a firing range in Bamberg, Germany in May 1975, bullets ricocheted off a concrete wall, and he was hit in the head and chest by more than 2 bullets (while wearing a helmet and a bulletproof vest). He reported he sustained head and chest cuts, and was seen by an orderly who bandaged the cuts. He reported that later that year he went going to the dispensary for chest problems (difficulty breathing). He reported he has noticed memory loss (which has remained unchanged) since 1986-87. He denied having subjective symptoms such as headaches. He did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI. Neuropsychological testing was not indicated as the Veteran denied having cognitive issues other than poor social interaction (which the examiner opined is likely to be due to schizophrenia). The examiner noted that the STRs do not document a head injury and that VA treatment records are silent for TBI. Following examination, the examiner opined that the Veteran did not now have, nor had he ever had, a TBI or any residuals of a TBI. The examiner opined that it is less likely as not that the Veteran sustained a TBI during service, noting that the STRs are silent for this condition and that the January 1976 service exit examination did not document a TBI (or residuals). On examination, the Veteran did not report loss of consciousness or headaches, and he denied any residual scars from the claimed cuts [in service]. The examiner noted the Veteran’s report that he was injured in May 1975 yet his memory deficits did not start until 1986, at least 10 years after the claimed TBI and opined that, hence, they are less likely due to TBI. The examiner opined that memory deficits, if from mild TBI, usually manifest early and resolve within 3 to 6 months; per the Veteran’s reported history, his memory deficits started 10 years later and had not changed, and on psychology evaluation the Veteran denied having memory deficits. The postservice medical evidence is otherwise silent regarding TBI, residuals of TBI, or a headache disorder secondary to TBI. In a November 2012 response to a request for information, the JSRRC stated that it researched the 1975 annual historical summary submitted by the headquarters, 6th Battalion, 10th Field Artillery, covering the period of January through December 1975, and found no documentation of reported stressor of a tank accident in Germany. The JSRRC was unable to locate other unit records submitted by the unit for that period. The JSRRC coordinated its research with the U.S. Army Combat Readiness/Safety Center for the same period, researching their ground incident database, which did not contain a Safety Report documenting the claimed stressor event. The JSRRC researched other historical information available to the agency, which also did not document the stressor event. As a TBI in service is not shown, service connection for such disability on the basis that it became manifest in service and persisted is not warranted. Furthermore, the threshold requirement that must be met with respect to this claim (as with any claim seeking service connection) is that there must be competent evidence that the Veteran currently has (during the pendency of the claim has had) the disability for which service connection is sought, i.e. TBI or residuals thereof. See 38 U.S.C. §§ 1110, 1131. The record does not include any such evidence. Treatment records associated with the record do not show that TBI was diagnosed or treated. The June 2012 VA examiners found that the Veteran does not meet the criteria for a diagnosis of TBI. There is no medical opinion in the record that shows a diagnosis of TBI upon thorough evaluation for such. A TBI disability is simply not shown. The Veteran has not identified any physician who has assigned him a diagnosis of TBI, or treated him for such disability. Accordingly, he has not presented a valid claim of service connection for TBI. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Turning to the claim of service connection for a headache disorder, as a chronic headache disability was not noted in service and or clinically diagnosed postservice, service connection for a headache disorder on the basis that such disorder became manifest in service and persisted is not warranted. There is no evidence of continuity of a headache disorder postservice. Therefore, service connection for a headache disorder (as an organic disease or the nervous system) based on continuity (under 38 C.F.R. § 3.303(b)) is also not warranted. There is no competent evidence in the record that otherwise relates the Veteran’s headaches to service. See 38 C.F.R. § 3.303(d). Regarding the secondary service connection theory of entitlement for headaches, i.e., that a headache disorder is secondary to TBI, the claim lack legal merit, as TBI is not service connected. See 38 C.F.R. § 3.310. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for headaches. The appeal in the matter must be denied. REASONS FOR REMAND 1. , 2., 3., 4. Entitlement to service connection for left and right leg and left and right knee disabilities is remanded. The Veteran contends that he has bilateral leg and knee disabilities that began when he underwent a treadmill test for heart treatment; it is unclear when this treatment occurred. Alternatively, he contends that his legs were injured in a tank crash during service, in 1975. Postservice treatment records note his reports of problems with his knees and legs. The Board cannot make a fully-informed decision on these issues because no VA examiner has offered an opinion that addresses the Veteran’s reports of continuous symptoms since service. Accordingly, additional medical guidance is necessary. 5., 6. Entitlement to service connection for a psychiatric disability, to include schizophrenia and PTSD, is remanded. The Veteran claims that he has a psychiatric disability due to stressor events in service (or otherwise etiologically related to service). The AOJ sought verification of one of the alleged stressor events (a 1975 tank accident in Germany), and the JSRRC responded that such incident could not be confirmed. He has alleged other stressor events in service (being shot on a firing range, and being falsely accused of fraud due to mistaken identity); verification of those events has not been sought (and development for corroborating evidence of stressors has been less than complete). He has been assigned private providers’ diagnoses of PTSD; however, the stressor events underlying those diagnoses are either uncorroborated or not clearly identified. He has also consistently been assigned diagnoses of schizophrenia by VA and private providers, which he contends was incurred in or caused by service. Development regarding stressor events in service and to determine whether the Veteran has a diagnosis of PTSD based on a corroborated stressor event in service, or another psychiatric disability etiologically related to service, is necessary. 7. Entitlement to a rating in excess of 10 percent for GERD is remanded. The Veteran contends that his GERD has worsened since the most recent (January 2015) VA examination. Given the length of the intervening period since he was last examined and the allegation of worsening since, a contemporaneous examination to assess the disability is necessary. 8. Entitlement to a TDIU rating is remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held, in essence, that when the matter of entitlement to a TDIU rating is raised by the record in a claim for increase, such matter becomes part of the increased rating claim. Here, the Veteran’s attorney submitted a March 2016 statement raising entitlement to TDIU as part and parcel of, and intertwined with, the pending appeal. The matter of entitlement to a TDIU rating has not been developed or adjudicated. Therefore, it must be remanded for such action. The matters are REMANDED for the following: 1. Ask the Veteran to provide descriptions and identifying information regarding any specific stressor events in service underlying his claimed diagnosis of PTSD (other than a tank/truck accident in Germany in 1975, as such event has been investigated and not confirmed). Then seek verification of each specific stressor event alleged for which the Veteran provides sufficient identifying information. [If he provides partial (insufficient to seek verification) information regarding an alleged stressor event, he should be advised what further information is needed and afforded opportunity to provide it.] 2. Then make a formal determination for the record regarding whether any specific stressor event alleged by the Veteran is corroborated. The determination should cite to the factual data that support the conclusions reached, and should encompass consideration of all alleged stressor events. 3. Then arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine whether he has a diagnosis of PTSD based on a corroborated stressor event in service, and to determine the nature and etiology of any psychiatric disability other than PTSD found. The examiner should be advised of what alleged stressor event in service, if any, has been found to be corroborated. The Veteran’s record (to include this remand) must be reviewed by the examiner in conjunction with the examination. On a review of the record and evaluation/interview of the Veteran, the examiner should respond to the following: (a.) Identify (by diagnosis) each psychiatric disability entity found or diagnosed during the pendency of this appeal. Specifically, does the Veteran have a diagnosis of PTSD related to a verified stressor event in service (if so the stressor event must be identified)? If an acquired psychiatric disability is not diagnosed, please reconcile that conclusion with the medical evidence in the record. (b.) Identify the likely etiology for each acquired psychiatric disability entity other than PTSD diagnosed, to include schizophrenia. Is it at least as likely as not (a 50% or better probability) that such disability (1) began during the Veteran’s active service, (2) (if a psychosis) was manifested within one year after discharge from service, or (3) was noted during service with continuity of symptoms since? The examiner must include rationale with all opinions. 4. Arrange for an orthopedic examination of the Veteran to determine the existence, nature and likely etiology of any current right or left leg or knee disabilities, specifically whether any is etiologically related to an injury in service. The entire record (including this remand) should be reviewed by the examiner in connection with the examination. On examination of the Veteran and review of his record, the examiner should respond to the following: (a.) Identify (by diagnosis) each current leg and knee disability found. (b.) Regarding each leg or knee disability entity diagnosed, is it at least as likely as not (a 50% or greater probability) that such was incurred in or caused by the Veteran’s active duty service, to include as due to injury therein? The opinion must reflect consideration of the Veteran’s lay statements regarding manifestation of symptoms in, and continuity of symptoms since, service. (c.) If a diagnosed leg or knee disability is determined to be unrelated to service, to the extent possible from the record identify the etiology considered more likely (and explain why that is so). The examiner must include rationale with all opinions. 5. Arrange for the Veteran to be examined by an appropriate clinician to assess the severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating such disability under the applicable schedular criteria. The examiner should elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to GERD alone and discuss the effect of the GERD on occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the requisite knowledge or training). 6. Arrange for any further development indicated, and adjudicate entitlement to a TDIU rating considering the determinations made on the other remanded claims. If TDIU is denied, the Veteran should be so advised, and advised of his appellate rights. If he files a notice of disagreement and a substantive appeal after a SOC is issued, the matter should be returned to the Board. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel