Citation Nr: 18144288 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-33 446 DATE: October 25, 2018 ORDER New and material evidence having been received, the previously denied claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. Service connection for an acquired psychiatric disability is granted. New and material evidence not having been received, the previously denied claim for service connection for residuals of traumatic brain injury (TBI) is denied. Service connection for bursitis is denied. Service connection for high blood pressure/hypertension (HTN) is denied. Service connection for a bilateral foot disorder, claimed as high arches, is denied. An effective date prior to April 30, 2013, for the grant of service connection for left lower extremity (LLE) sciatica is denied. REMANDED The claim for a rating in excess of 10 percent for a lumbar spine strain is remanded. The claim for a rating in excess of 10 percent for right knee patellofemoral syndrome with traumatic arthritis is remanded. The claim for a rating in excess of 10 percent for right lower extremity (RLE) sciatica is remanded. The claim for an initial rating in excess of 10 percent for LLE sciatica is remanded. The claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. New and material evidence that tends to substantiate the claim of service connection for an acquired psychiatric disability has been received, since the final rating decision that denied service connection for that condition in February 2012. 2. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed acquired psychiatric disability is shown to be related to inservice stressors during his service in Bahrain and Iraq. 3. New and material evidence has not been received since the final May 2008 rating decision that denied service connection for residuals of a TBI. 4. The most probative (meaning most competent and credible) medical and other evidence of record preponderates against finding that the Veteran has bursitis, high blood pressure, or a bilateral foot disorder, to include high arches, either began during or was otherwise caused by his military service, or is attributable to his service, including secondarily, meaning proximately due to, the result of, or aggravated by a service-connected disability. 5. The claim of entitlement to service connection for LLE sciatica was received on April 30, 2013. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for an acquired psychiatric disorder, to include PTSD, is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. The criteria for establishing service connection for an acquired psychiatric disability, to include PTSD, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. New and material evidence has not been received to reopen a claim of entitlement to service connection for residuals of TBI. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for bursitis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 5. The criteria for service connection for high blood pressure/hypertension are not met. U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for a bilateral foot disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 7. The criteria for an effective date earlier than April 30, 2013, for the grant of service connection for LLE sciatica have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1998 to March 2007, to include service in Southwest Asia. His awards include the Global War on Terrorism Service Medal, the Armed Forces Expeditionary Medal, Overseas Service Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon, and Sharpshooter Pistol Shot Ribbon. The Board also notes that the Veteran is no longer represented by a private attorney. See July 2016 correspondence from J. M.W. revoking power of attorney. Since then, the Veteran has not identified a new representative. As such, The Board finds that the Veteran is representing himself on a pro se basis. New and Material Evidence to Reopen Claims A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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). Historically, the Veteran filed his initial claim for service connection for PTSD in November 2007. The RO denied the claim in a May 2008 rating decision in that acknowledged that PTSD had been diagnosed, but which had found that the Veteran’s alleged inservice stressors could not be verified as they were too vague. His alleged inservice stressors included assistance in the recovery of bodies. In a February 2012 rating decision, the previous denial was confirmed essentially for the same reasons. The Veteran did not submit a notice of disagreement (NOD) with those decisions or submit any additional evidence respecting those claims within one year of the notice letters. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the notice letters, the May 2008 and February 2012 rating decisions became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for an acquired psychiatric disorder. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Since the February 2012 rating decision, the Veteran has submitted evidence that showed he has been diagnosed with an acquired psychiatric disability and the examiner found that it was at least as likely as not (50 percent or greater) that the condition was the result of the Veteran’s military service. Based on the above evidence, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for PTSD has been received, and the claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether a veteran engaged in “combat with the enemy.” See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f) (2018); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If the VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or written statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required provided that such testimony is found to be “satisfactory,” i.e., credible and “consistent with circumstances, conditions or hardships of service.” See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki 6 Vet. App. at 98. Additionally, in 2010, VA amended its regulations governing service connection for PTSD, liberalizing the evidentiary standards for establishing the required in-service stressor and for establishing a medical diagnosis of PTSD. 75 Fed. Reg. 41,092 (July 15, 2010) (codified at 38 C.F.R. § 3.304(f)). Under the revised regulations, if a stressor claimed by a veteran is related to the veteran’s “fear of hostile or terrorist activity” and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service. 38 C.F.R. § 3.304(f)(3). “Fear of hostile military or terrorist activity” is defined as being where “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.” Id. Moreover, VA has recognized that the scope of this definition includes events involving civilians. 75 Fed. Reg. 38, 843, 39,844 (July 13, 2010). Background and Analysis The Veteran has consistently provided statement detailing his service in Bahrain and Iraq, to include the horror/dismay he experienced recovering bodies from ships and/or downed airplanes. He also reported combat related experiences to include exchanging fire, and his proximity to a missile that exploded. The Veteran is competent to describe his in-service stressors. His statements and are generally consistent, and there is no clear and convincing evidence of record to the contrary. Therefore, the Veteran’s statements are competent and credible. Accordingly, based on the record as a whole, and resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s claimed in-service stressors are consistent with the places, types, and circumstances of his service, that his experiences in Bahrain and Iraq and his responses to those events involved a psychological state of intense fear and horror, thereby establishing the occurrence of the claimed in-service stressors. 38 C.F.R. § 3.304(f)(3). It is noted also that the Veteran was found to be a credible historian at his PTSD examination. Post service records include conflicting reports as to whether the Veteran meets the criteria for PTSD. For example, VA examination in January 2014 was negative for diagnosis of PTSD. At the most recent VA examination in June 2017, the examiner again concluded that the Veteran did not meet the DSM criteria for PTSD. However, the Veteran did have an acquired psychiatric disability based on the trauma that he experienced in service, and he opined that it was likely as not that the acquired psychiatric disability was of service origin. Here, the Board finds that the medical evidence of record (1) establishes that the Veteran is currently diagnosed with an acquired psychiatric disability in accordance with 38 C.F.R. § 4.125(a); and (2) establishes a link between the Veteran’s current symptoms and the in-service stressors. The criteria to establish service connection for an acquired psychiatric disability are met. Whether new and material evidence has been received that is sufficient to reopen the previously denied claim of entitlement to service connection for residuals of TBI. Background and Analysis The Veteran contends that he has submitted new and material evidence sufficient to reopen the claim for entitlement to service connection for residuals of TBI. As reported above, new evidence means existing evidence not previously submitted to VA. 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). The RO denied entitlement to service connection for residuals of TBI in May 2008 and notified the Veteran of the decision that same month. The Veteran did not appeal the May 2008 rating decision, and no evidence was received within the one-year appeal period that would constitute new and material evidence. Thus, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The May 2008 rating decision denied service connection for residuals of TBI because the evidence of record did not show evidence of such during service or thereafter. The pertinent evidence of record at the time of the denial included the Veteran’s service treatment records (STRs) and private and VA medical records. All of these records were silent as to any complaints of or diagnoses of head injuries or related residuals. Pertinent evidence received since the May 2008 rating decision includes additional treatment records dated to the present day. Upon VA treatment in 2012, the Veteran related approximately five instances when he incurred head injuries during service. However, none of these injuries are documented in the STRs or otherwise corroborated. Moreover, no cognitive disorder was diagnosed by the examiner, and no cognitive disorder has been attributed to any alleged in-service head trauma. After thorough review of the evidence of record, the Board concludes that new and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of TBI. Although many (new) records of treatment have been added to the file since the RO’s denial of the claim in May 2008, none of this evidence is material because the evidence does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. The evidence of record still fails to reflect a current diagnosis of any TBI residuals. As such, new and material evidence has not been submitted, and the finally disallowed claim for service connection for residuals of TBI, is not reopened. Service Connection – In General Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as HTN, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Service connection for bursitis; entitlement to service connection for high blood pressure/HTN; and service connection for a bilateral foot disorder, claimed as high arches. Background It is the Veteran’s assertion that he has bursitis, HTN, and a bilateral foot disorder as a result of his active duty service. Review of his STRs, however, is negative for report of, treatment for, or diagnoses of bursitis, high blood pressure/HTN, or a foot disorder. Post service VA records from 2013 forward reflect bursitis of the hips bilaterally, HTN, and foot complaints, diagnosed as bilateral metatarsalgia and pes cavus. Clearly, the competent, credible, and probative evidence of record fails to support a finding of bursitis, HTN, or a bilateral foot disorder, in service or for years thereafter, and service connection on a direct basis and on a presumptive basis as a chronic condition is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, it is shown that current diagnoses are etiologically related to a service-connected disorder. 38 C.F.R. § 3.310. Analysis For the reasons set forth above, the Board finds that the preponderance of the probative and persuasive evidence is against a finding that the Veteran’s current hip bursitis, HTN, or foot disorders (metatarsalgia and pes cavus) are related to service, or secondary to any service-connected disorder. Moreover, HTN was not shown in service or within one year following discharge from service. Thus, the provisions regarding continuity are not for application. Accordingly, service connection is denied. The Board acknowledges the Veteran’s assertion that his bursitis, HTN, and foot disorders are related to military service. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the diagnosed disorders is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) The Board is unable to identify a reasonable basis for granting the Veteran’s claim. These diagnoses are many years after service discharge in 2007 and no medical professional has even suggested that any of these conditions either began during or was otherwise caused by the Veteran’s military service. Entitlement to an effective date prior to April 30, 2013, for the grant of service connection for LLE sciatica. Background and Analysis Review of the record discloses that a formal claim for entitlement to service connection for LLE sciatica was received from the Veteran on April 30, 2013. The date his claim was received showing that he was seeking compensation for this disorder. By rating action dated in February 2014, service connection for sciatica of the LLE was granted, effective from the date of the claim received on April 30, 2013. The Veteran has argued that an earlier effective date for the grant of service connection is warranted. The Board presumes that his main argument is that service connection was established for sciatica of the right lower extremity (RLE) in a June 2007 rating action from March 16, 2007. Thus, he believes that service connection should also be assigned for his LLE from that date. It is noted, however, that the evidence of record at that time only showed RLE sciatica. There was no diagnosis of LLE sciatica noted until 2011. The Board has carefully considered the Veteran’s statements in support of the claim that LLE sciatic existed before the grant and effective date of service connection. In this regard, the Board observes that the Veteran separated from service in 2007 and no claim for LLE sciatica was received within one year of separation. As such, service connection for sciatica of the LLE may not date back to the day after separation from active duty. Moreover, the evidence shows evidence of this condition from 2011 forward, there is no writing, formal or informal, that indicates an intent to file a claim for service connection until the one received on April 30, 2013. In any event, the Board has considered the appellant’s contentions, but point out that applicable law states that unless the application is received within one year from discharge from service, the effective date assigned cannot be earlier than the date that a claim, informal claim, or evidence representing an intent to file a claim is received. See 38 U.S.C. § 5110(a). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the United States Court of Appeals for Veterans Claims (Court) addressed the issue of entitlement to an earlier effective date and pointed out that the applicable statutory and regulatory provisions require that the Board look to all communications in the file that may be interpreted as applications for claims, formal and informal, for VA benefits and, then, to all other evidence of record to determine the “earliest date as of which” disability is ascertainable. 38 U.S.C. § 5110(b)(2). In this case, however, the Veteran’s claims folder contains no document or writing, formal or informal, showing that a claim for service connection of sciatica of the LLE was received prior to April 30, 3013. The law regarding effective dates is clear. The effective date of an award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a), 3.400. In this case, the claim for sciatica of the LLE was received on April, 30, 2013, which is the later of the two events giving rise to the grant of service connection. Therefore, an earlier effective date for the grant of service connection for LLE sciatica is denied. REASONS FOR REMAND The following claims are remanded: entitlement to a rating in excess of 10 percent for lumbar strain; entitlement to a rating in excess of 10 percent for RLE sciatica; entitlement to a rating in excess of 10 percent for LLE sciatica; and entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with traumatic arthritis. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The last VA examinations addressing these orthopedic disabilities were performed in 2014. Subsequently dated VA treatment records reflect continued treatment for the spine, to include sciatica in the lower extremities, and, also for the right knee. Contemporaneous and appropriate VA examinations should be obtained as directed in the remand directives below. The claim for a TDIU is also remanded as explained below. With respect to the Veteran’s claim of entitlement to a TDIU, as the claim is inextricably intertwined with the grant of service connection for PTSD, (granted herein), it must be remanded to the Agency of Original Jurisdiction (AOJ) for re-adjudication after the AOJ assigns the proper disability rating and effective date for the grant of service connection for PTSD. The matters are REMANDED for the following action: 1. Obtain VA treatment records from June 2017 to the present. 2. Then, schedule the Veteran for VA examination(s) to determine the severity of his right knee and low back disabilities, to include evaluations of the service-connected sciatica of the left and right lower extremities. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith