Citation Nr: 18143751 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-24 543 DATE: October 23, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for a back condition has not been received, the application to reopen is denied. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The April 2002 rating decision denied the Veteran’s claim of service connection for a back condition; the Veteran did not perfect an appeal with respect to the issue. 2. The evidence received since the April 2002, by itself, or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for the Veteran’s back condition. 3. At no point during the pendency of this appeal has the Veteran’s service-connected PTSD been productive of more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The April 2002 rating decision is final as to the Veteran’s claim of entitlement to service connection for a back condition. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a back condition has not been received; the claim is not reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for an initial rating in excess of 30 percent for PTSD have not been met at any point during the duration of this appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to May 1978. This matter is on appeal from an August 2014 rating decision that denied entitlement to service connection for a back condition, and an August 2016 rating decision that granted service connection for PTSD and assigned an initial evaluation of 30 percent, effective February 9, 2015. 1. Entitlement to reopen a claim of entitlement to service connection for a back condition is denied. This matter is on appeal from an August 2014 rating decision, which included a denial of entitlement to service connection for a back condition as it was decided that evidence submitted in connection with the claim did not constitute new and material evidence because it was previously submitted and considered in the rating decision of April 26, 2002. The Board notes that the Regional Office (RO) has already reopened and denied on the merits the claim for service connection for a back condition. However, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly, the Board must initially determine on its own whether there is new and material evidence to reopen the claim before proceeding to the merits on claim. If the Board finds that no new and material evidence has been received, then that is where the analysis ends, and what the RO may have determined is irrelevant. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. Here, the RO last denied service connection for a back condition in April 2002 on the basis that new and material evidence sufficient to reopen the previously denied claim for entitlement to service connection had not been received. In the year following the April 2002 decision, the Veteran did not submit any statements expressing disagreement with the decision nor did he submit any documents concerning the claim of service connection for a back condition that could be considered new and material evidence. 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the April 2002 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence of record at the time of the April 2002 rating decision consisted of the Veteran’s service treatment records, medical records from Southern Oregon Imaging, dated September 23, 1996; medical records from Dr. J.B., dated April 5, 1991; medical records from Dr. L.T. from October 28, 1993 to January 30, 1998; medical records from Dr. W.B. from June 13, 1994 to October 11, 1994; medical records from the Roseburg VA Medical Center from July 27, 1999 to March 14, 2000; X-ray reports from Nevada Memorial Hospital, dated January 21, 1991, March 4, 1991, April 12, 1991; State of California Doctor’s First Report of Occupational Injury or Illness, dated January 21, 1991; and the Veteran’s statements. Pertinent evidence received since the April 2002 rating decision consists of radiology reports (Cahaba Imaging) and private treatment records received August 25, 2014; copy of letter to Mr. M. (chiropractor) received August 25, 2014; medical records from Roseburg VA Medical Center from July 27, 1999 through March 14, 2000; Notice of Disagreement received on August 28, 2014 and July 14, 2015; Oregon State Penitentiary spine x-ray received August 25, 2014; Oregon State Penitentiary records received September 27, 2014 and February 23, 2016; a statement from T.P received December 19, 2014; VA examination and medical opinion dated February 26, 2016; and the Veteran’s statements. Initially, the Board observes that the outcome of this case largely turns on the question of whether the Veteran submitted new and material evidence to support a finding that the Veteran’s back condition was incurred or aggravated by a period of active military service. In August 2013, VA received a completed claim form, VA Form 21-526, on which the Veteran reported that he injured his back in 1977 while he was assigned to a unit in Germany. A July 2009 radiology record reported that the Veteran sustained neck pain after he was hit in the back of the head falling off a bunk bed. The impression was degenerative disc disease of the cervical spine. A May 2011 radiology report was essentially negative for lumbar spine. In August 2014, the Veteran submitted a statement reporting two back injuries he incurred during his military service. One incident involved the Veteran lifting a trailer off another person’s foot; the other incident involved the Veteran carrying another person up two flights of stairs. The Veteran submitted a Notice of Disagreement in August 2014 requesting additional time to secure information from doctors. On the form he wrote the following: “It shows that I had an injury in the service in 77-78 and was seen by doctors. And it is soft tissue injury. I’ve been told my many doctors that soft tissue injuries never heal correctly. In December 2014, the Veteran submitted a statement from his former spouse, in which she reported that the Veteran injured his back lifting a heavy trash can while working for Grass Valley Disposal. The Veteran was afforded a VA examination of his back in February 2016. The examiner opined that the Veteran’s back condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner explained that, although service treatment records reported that the Veteran suffered a mild strain of his back helping a buddy, he was later seen with a diagnosis of resolving back strain and his separation examination reported a normal back. Moreover, the examiner reported that the Veteran denied recurrent back pain when he enlisted in the National Guard in “1983/1984.” The examiner reported that the Veteran had a significant back injury in 1991 as a result of lifting a trash can full of apples, which injured his lower thoracic spine. The examiner noted a medical record from October 28, 1993 that reported the Veteran had complained of low back pain since 1991 due to lifting a particularly heavy garbage can. In addition, the examiner reported that the Veteran had a job involving heavy lifting that put him at risk of recurrent injuries. In summary, the examiner explained that the injury in service was a strain that appeared to have resolved and now appears to be more chronic since the Veteran’s 1991 injury. Therefore, it is less likely that the back injury is the result of his injury during service. A March 2016 Statement of the Case explained that (1) the Regional Office had reopened the Veteran’s claim based on the receipt of new and material evidence in the form of recent VA examination findings, and (2) the Regional Office denied entitlement to service connection for a back condition because the medical evidence did not reveal that the ongoing back problems were related to an in-service injury. Based on the above, new and material evidence has not been received to reopen a claim of service connection for a sleep disorder. While new medical evidence has been received, the evidence is cumulative or redundant of the evidence of record at the time of the last final denial of the claim. Therefore, the evidence is not new and material evidence. The Veteran’s statements regarding the alleged in-service stressor are cumulative of his previous contentions at the time of the last final denial of the claim; his statements are therefore not new and material evidence. The Board acknowledges that the March 2016 Statement of the Case indicates “[w]e have reopened your claim based on the receipt of new and material evidence in the form of recent VA examination findings.” However, the Board has concluded that the February 2016 VA examination is not new and material evidence, as it neither relates to an unestablished fact necessary to substantiate the claim nor raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). By itself or when considered with the evidence previously of record, none of the evidence submitted since April 2002 relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back condition and does not raise a reasonable possibility of substantiating the claims. Therefore, new and material evidence has not been received to reopen the claim of service connection for a back condition. The requirements to reopen this claim have not been met, and the appeal must be denied. As such, the Board finds that new and material evidence sufficient to reopen the appellant’s claim for service connection for a back condition has not been submitted. Until the appellant meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Entitlement to an initial rating in excess of 30 percent for PTSD is denied. This matter is on appeal from an August 2016 rating decision, which granted service connection for PTSD and assigned an initial evaluation of 30 percent, effective February 9, 2015. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Posttraumatic Stress Disorder By rating decision of April 2016, the Veteran was granted service connection for his PTSD and assigned an initial evaluation of 30 percent, effective February 9, 2015. The Veteran disagrees with the initial rating assigned. The Veteran’s PTSD has been rated under Diagnostic Code 9411, which is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted where the psychiatric condition produces occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events). Id. A 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As explained below, the competent evidence of record, to include the Veteran’s treatment records, VA examination reports, and lay statements, do not establish findings consistent with higher ratings. In April 2016, the Veteran was afforded a PTSD VA examination. Based on the clinical evaluation, the examiner diagnosed the Veteran with PTSD under DSM-5 criteria, and opined that he has symptoms resulting in “[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” At the time of the examination, the Veteran was incarcerated at the Oregon State Penitentiary (OSP), where he had been an inmate for the last 16 years. He reported that he had worked full-time as a janitor at OSP for two years without difficulty. The examiner reported that the Veteran exhibited the following symptoms: avoidance of or efforts to avoid external reminders of distressing memories associate with the traumatic event; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; feelings of detachment or estrangement from others; irritable behavior and angry outbursts; and sleep disturbance. In addition, the examiner reported that the Veteran experienced anxiety and chronic sleep impairment and that his thoughts were logical and goal-directed. Moreover, he reported that there were no signs of major psychopathology such as hallucinations or delusions, the Veteran’s mood was happy, and his attention and memory were intact. A September 2016 mental health evaluation summary reported that the Veteran had decided to get back on medication because he had been experiencing increased irritability for the last six to eight months. He denied intrusive memories but reported actively avoiding stimuli that reminded him of his friend’s death, as well as occasional nightmares about his experiences around the time of his friend’s death. He endorsed poor sleep, feelings of estrangement from others, difficulty experiencing positive emotions, hypervigilance, and prolonged distress after exposure to cures that remind him of his friend’s death. The examiner reported that the Veteran did not exhibit significant psychomotor agitation or slowing and that the Veteran’s affective range and reactivity were within normal limits. In addition, the examiner reported that the Veteran’s thought structure was logical and goal directed and that there was no indication of delusional thought content. The Veteran denied current thoughts about harming himself or others. He reported that his last violent behavior occurred about four years ago and that he last thought about harming himself in March 2014. An Oklahoma Department of Corrections (ODOC) Behavioral Health Services note from October 2016 reported that the Veteran was less anxious and irritable. The examiner reported that the Veteran’s intrusive memories had decreased a little bit. The Veteran reported that there had been no significant change in his anxiety, irritability, tendency to feel “uptight,” intrusive memories, feelings of guilt, avoidance of stimuli which remind him or his friend’s death and its aftermath, feelings of estrangement from other people, ability to experience positive emotions, or vigilance. The Veteran denied current or recent thoughts about harming himself or others. The examiner reported the Veteran made good eye contact. No significant psychomotor agitation or slowing was noted. Affective range and reactivity were within normal limits and the Veteran’s thought structure was logical and goal directed. There was no indication of delusional thought content. An ODOC Behavioral Health Services note from December 2016 reported that the Veteran had a flashback the previous night due to witnessing a friend’s heart attack. The Veteran admitted that he has a hard time trusting people and allowing them to get close to him. He reported that he was an introvert by nature, enjoying solitude, but said he would like to be in a relationship again. The Veteran reported that he enjoys his work and hobby shop bench, as he indicated his art keeps him sane. The examiner reported that the Veteran’s thought structure was logical and goal directed and there was no indication of delusional thought content. No significant psychomotor agitation or slowing was noted. An ODOC Behavioral Health Services notes from December 2016, January 2017, May 2017, and June 2017 reported the following similar findings. The Veteran reported that there had been no significant change in his anxiety, irritability, tendency to feel uptight, intrusive memories, feelings of guilt, avoidance of stimuli which remind him of his friend’s death and its aftermath, feelings of estrangement from other people, ability to experience positive emotions, or vigilance. The Veteran denied current or recent thoughts about harming himself or others. The examiner reported the Veteran made good eye contact and no significant psychomotor agitation or slowing was noted. Affective range and reactivity were within normal limits and the Veteran’s thought structure was logical and goal directed. There was no indication of delusional thought content. A March 2017 ODOC Behavioral Health Services note reported that the Veteran recently began a new job as a clerk in the legal library, which was necessary due to his back issues. A May 2017 ODOC note reported that the Veteran enjoyed his job in the law library despite a conflict with a co-worker. He also described losing his temper, raising his voice, and threatening to fight, but the examiner reported the Veteran always presented as polite and soft-spoken. A June 2017 ODOC note reported that the Veteran had a recent conflict with a co-worker who was ordering him around and talking disrespectfully to him. Although the Veteran stated he nearly quit his job in frustration, he expressed that he would stick it out to see how it goes. A July 2016 letter from the Veteran reported that, during his time of service, the USS Stark was bombed, which killed twenty-two sailors. He expressed that, although it was not considered a time of combat, it should be recognized as personally traumatic. The Veteran indicated that he was seeking an overall rating of 60 percent. The Veteran’s representative submitted a statement from the Veteran, dated April 26, 2017, that was received in May 2017. The Veteran reported that he has nightmares “all the time” about his friend who was killed in service and that he is often reminded of his friend throughout the day. He reported having days where he cannot stand to be around anyone. He reported being prescribed Effexor for anxiety attacks, depression, and anger problems. He reported that he does not sleep well, getting only a couple of hours of good sleep then being awake just about every hour until it is time to get up for work. He described that he is always looking around to see who is around him or coming towards him. He stated that there is no happiness in his life as he reported that he has never had a relationship last more than two and one-half years and does not like getting close to anyone. He reported that he does not have any close friends and that he has been divorced three times. According to the Veteran, “t]he only thing I have is my drawings and listening to my music. It’s to block everyone out.” Upon review of the evidence, the Board finds that the preponderance of the evidence is against a finding of entitlement to an evaluation exceeding 30 percent at any time during the appeal period. As chronicled above, the Veteran clearly experienced psychiatric symptomatology as a result of his PTSD with symptoms such as anxiety, feelings of detachment from others; irritable behavior, angry outbursts; and sleep disturbance. However, the objective evidence of record does not establish that his PTSD was manifested by occupational and social impairment with reduced reliability and productivity. In support of such finding, the Board assigns great probative value to the April 2016 VA medical opinion of record. The VA examiner, a licensed psychologist, thoroughly reviewed the Veteran’s mental history and concluded that his overall symptoms of PTSD were mild. Significantly, the April 2016 examiner reported that the Veteran experienced anxiety and chronic sleep impairment but did not exhibit signs of major psychopathology such as hallucinations or delusions. The examiner reported that the Veteran’s thoughts were logical and goal-directed and that his attention and memory were intact. The examiner opined that he has symptoms resulting in “[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” Additionally, the Board has taken into consideration the frequency, severity, and duration of the Veteran’s symptoms of PTSD, as well as his statements regarding his assessment of the severity of his symptoms. However, the symptoms presented here, and their resulting effects, do not rise to the level of the next higher ratings. The Veteran has consistently exhibited logical and goal directed thought structure with affective range and reactivity within normal limits, while showing no indications of significant psychomotor agitation or slowing. Furthermore, he has consistently denied current or recent thoughts about harming himself or others and has exhibited no indications of delusional thought content. Clearly, such findings are not consistent with a higher 50 percent rating, which requires symptoms of flattened affect; circumstantial, circumlocutory, stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. For these reasons, the Board finds that the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating the criteria for a 50 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. The benefit-of-the-doubt doctrine is not for application, and an increased rating under this code is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel