Citation Nr: 18143495 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-23 738 DATE: October 19, 2018 ORDER New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a neck disability; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded. Entitlement to a noninitial disability rating in excess of 20 percent for service-connected lumbar strain is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran’s claim of entitlement to service connection for neck pain was denied in an October 2004 rating decision that became final. Evidence received since then is new and material, and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a neck disability. CONCLUSIONS OF LAW 1. The October 2004 rating decision denying the Veteran’s claim of entitlement to service connection for neck pain is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a neck disability has been received; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1980 to April 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision which was issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a June 2018 videoconference hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. All substantive evidence submitted by the Veteran after the April 2014 Statement of the Case was accompanied by a statement waiving initial RO consideration. See 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). There is no prejudice to the Veteran in the Board proceeding with a merits decision on the below adjudicated claim. New and Material Evidence The preliminary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for a neck disability. After reviewing the evidence of record, the Board finds that new and material evidence has been received. In an October 2004 rating decision, the RO denied entitlement to service connection for neck pain. The Veteran did not file a notice of disagreement or new and material evidence within the one-year period following notification of the rating decision. Accordingly, the October 2004 rating decision became final. 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108. New evidence means 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 the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). In the October 2004 rating decision, service connection was denied on the basis that the record failed to establish that the Veteran experienced a problem with his neck that was related to his active duty military service. The rating decision further explained that “pain in the absence of an etiology to account for such” did not constitute a current disability eligible for service connection entitlement. Since the October 2004 rating decision, the Veteran has submitted medical evidence establishing that he now experiences discogenic and osteoarthritic changes in the cervical spine, confirmed by diagnostic imaging. Additionally, the Veteran has submitted a July 2018 statement from his private physician suggesting that the “very mild posterior osteophyte formation at C6/7” documented in an November 1997 in-service radiograph “probably represents the initial onset” of the Veteran’s current neck disability. This evidence is new, as it was not previously available (and thereby considered) in the prior final rating decision, and it is material, as it pertains to the unestablished fact of whether the Veteran experiences a current neck disability etiologically linked to his active duty military service. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence, and the claim is reopened. Shade, 24 Vet. App. at 117-118. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REASONS FOR REMAND section below. REASONS FOR REMAND In general, it appears that the RO last associated VA treatment records with the Veteran’s electronic claims file in October 2012. At the June 2018 Board hearing, the Veteran testified that he has continued to seek treatment at the VA facilities in Leesburg (now Tavares) and Clermont, Florida. The Veteran’s attorney has supplemented the electronic claims file with updated VA treatment records in October 2013 and June 2018; however, a facial review of these records establishes that they are incomplete. For instance, one of the June 2018 filings contains a facsimile cover sheet indicating 99 pages of medical evidence were submitted, but the date stamp atop of the VA treatment record indicates that only pages 1 through 97 out of 195 were submitted. Another June 2018 filing similarly establishes that an incomplete set of VA treatment records were submitted. Given these irregularities, the Board requests that the RO obtain all VA treatment records from January 2012 to present and associate them with the electronic claims file. 1. Entitlement to service connection for a neck disability is remanded. The claim of entitlement to service connection for a neck disability is remanded to the RO for further evidentiary development. At the June 2018 Board hearing, the Veteran testified that his neck disability was treated by both VA and his private physician, Dr. M. To date, the treatment records of Dr. M (aside from the July 2018 treatment notes submitted by the Veteran’s attorney) have not been obtained for evidentiary consideration. The RO must undertake reasonable efforts to obtain these outstanding medical records. In the July 2018 treatment note, Dr. M. suggested that a “very mild posterior osteophyte formation at C6/7” noted on a November 1997 in-service radiograph of the cervical spine “probably represents the initial onset” of the Veteran’s current disability. Medical opinions expressed in terms of “may,” “could be,” or “probably” are too speculative to be of probative value. See e.g., Warrant v. Brown, 6 Vet. App. 4, 6 (1993) (finding physician’s statement that the Veteran’s psychiatric disorder “could have been” caused by active service was too speculative); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (stating that a medical opinion expressed in terms of “may” is too speculative). Consequently, the Board finds that a VA examination must be obtained on remand to assess the nature, extent, and etiology of the Veteran’s neck disability. At the June 2018 Board hearing, the Veteran testified to his subjective belief that his service-connected lumbar strain may have caused or aggravated his current neck disability. The VA examiner shall also be requested to address the secondary service connection contention raised by the Veteran’s hearing testimony. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded. In October 2010, the Veteran filed a claim seeking entitlement to service connection for PTSD; however, the Veteran’s claim cannot be “limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given the variable psychiatric diagnoses of record, the Veteran’s claim has been recharacterized as entitlement to service connection for an acquired psychiatric disability, to include PTSD and anxiety. After consideration of the evidence, the Board finds that a remand is warranted to obtain a new VA psychiatric examination. The Veteran was afforded a VA examination in January 2012, the results of which are insufficient to justly adjudicate the Veteran’s appeal. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD, but failed to discuss the validity of prior diagnoses of PTSD in the appellate record. See e.g., VA treatment records from June 2009 where psychiatrist issued provisional diagnosis of “rule out PTSD” that was changed to diagnosis of chronic PTSD in July 2009; see also June 2011 VA psychologist Axis I diagnosis of PTSD; see Romanowsky v. Shinseki, 26 Vet. App. 303, 310-311 (2013). Moreover, the examiner discussed the severity of the Veteran’s anxiety disorder, but failed to provide a sufficient rationale for the conclusion that this psychiatric disability was less likely than not incurred in or caused by the Veteran’s active duty service. For these reasons, a new VA examination must be obtained on remand. 3. The increased rating claims currently on appeal are remanded. The Veteran’s claims of entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain and a disability rating in excess of 10 percent for service-connected right lower extremity are remanded for further evidentiary development. At the June 2018 Board hearing, the Veteran testified that these service-connected disabilities have worsened in severity since his last VA examination conducted in May 2011. The Veteran’s attorney has submitted written argument requesting that the claims be remanded for updated VA examinations to obtain contemporaneous medical evidence documenting the current nature and severity of the Veteran’s service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board agrees, and shall remand these claims for updated VA examinations. At the June 2018 Board hearing, the Veteran testified that he received treatment from neurologist, Dr. H., and physical therapy from A.C.O.T. for his service-connected lumbar strain disability. Review of the appellate record shows that Dr. H.’s treatment records have been obtained and appear to be complete. The electronic claims file currently contains records from A.C.O.T. dated from August 2012 to September 2012; however, there is indication that the Veteran began outpatient physical therapy in June 2012. The RO must undertake reasonable attempts to obtain these outstanding physical therapy records, as they may contain evidence relevant to evaluating the Veteran’s claims under the appropriate schedular rating criteria. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records, to include those from the VA facilities in Leesburg/Tavares and Clermont, Florida, for the period from January 2012 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. M. and A.C.O.T. Make two requests for the authorized records from Dr. M (all records) and A.C.O.T. (June 2012 to August 2012), unless it is clear after the first request that a second request would be futile. 3. THEN, schedule the Veteran for an examination of the current severity of his service-connected lumbar strain and right lower extremity radiculopathy. 4. ALSO, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of the Veteran’s current neck disability. Following a complete review of the electronic claims file and in-person examination, the examiner is requested to opine on the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current neck disability was incurred in or otherwise etiologically related to his active duty service? The examiner is requested to consider and discuss the November 1997 in-service cervical spine radiograph documenting the presence of a “very mild posterior osteophyte formation at C6/7,” as well as the Veteran’s credible testimony that he did not begin experiencing neck pain until 2002 or 2003. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current neck disability is proximately due to, the result of, or aggravated beyond its natural progression, by the Veteran’s service-connected lumbar strain? All medical opinions must be accompanied by a complete explanatory rationale. 5. ALSO, schedule the Veteran for a VA psychiatric examination to assess the nature and severity of the Veteran’s claimed acquired psychiatric disabilities, to include PTSD and anxiety. Following a complete review of the record and an in-person examination, the examiner is requested to identify the presence of any current psychiatric disabilities. If the examiner determines a diagnosis of PTSD is not warranted, he or she must consider and discuss the validity of the July 2009 and June 2011 VA treatment records where VA mental health professional diagnosed the Veteran with PTSD, as well as a full explanation of why a current diagnosis of PTSD is not warranted. Regardless, for each current diagnosis, if any, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disability had its onset during the Veteran’s active duty service or is otherwise etiologically related to his active duty service. All medical opinions must be accompanied by a complete explanatory rationale. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel