Citation Nr: 18144939 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 13-00 334 DATE: October 25, 2018 ORDER New and material evidence having been received, the previously denied claim of service connection for a neck disability is reopened. New and material evidence having been received, the previously denied claim of service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for degenerative disc disease of the cervical spine, claimed as neck condition, to include as secondary to service-connected right shoulder status post partial AC separation with minimal degenerative changes at the AC joint, is remanded. Entitlement to service connection for left carpal tunnel syndrome, claimed as left arm numbness, to include as secondary to service-connected right shoulder status post partial AC separation with minimal degenerative changes at the AC joint, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. In a November 2008 rating decision, the RO denied the appellant’s claims of service connection for a neck disability and PTSD. Following receipt of a timely Notice of Disagreement, a Statement of the Case was issued in July 2010. The appellant did not perfect an appeal within the applicable time period, nor was new and material evidence received in the year following notification of the November 2008 rating decision. 2. Evidence received since the final November 2008 rating decision denying service connection for a neck disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a neck disability. 3. Evidence received since the final November 2008 rating decision denying service connection for PTSD relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for PTSD. CONCLUSIONS OF LAW 1. The November 2008 rating decision denying service connection for a neck disability and PTSD is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for a neck disability. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for PTSD. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the Army from August 1970 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for a neck disability, left arm numbness, to include carpal tunnel syndrome, and PTSD. The Board notes that, although the claims of service connection for a neck disability and PTSD were certified to the Board as new claims, because they were previously denied by the RO in a final November 2008 rating decision, the Board is obligated by statute to consider whether new and material evidence has been submitted prior to addressing the merits of these claims. 38 U.S.C. §§ 5108, 7105(c) (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In light of the favorable determination below on the question of whether new and material evidence has been received, no prejudice to the appellant has resulted. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In correspondence received in December 2012, the appellant withdrew his request for a hearing before a Veterans Law Judge. It is noted that in August 2018, the Board remanded the issue of entitlement to service connection for a bilateral knee disability. A review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on the issue. Thus, the Board will not accept jurisdiction at this time. Rather, the issue will be the subject of a subsequent Board decision, if otherwise in order. The Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant’s description of the claim, reported symptoms, and the other information of record). New and Material Evidence Applicable Law In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Analysis In a November 2008 rating decision, the RO, inter alia, denied service connection for a neck disability and PTSD. The RO found that there was no in-service injury or disease with respect to the neck, nor was there a current disability. With respect to PTSD, there was no diagnosed disability. Following receipt of a timely NOD in January 2009, the RO issued an SOC in July 2010, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification of the November 2008 rating decision. Thus, the November 2008 rating decision is final and not subject to revision on the same factual basis. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in November 2008. That evidence includes an August 2012 clinical record showing a diagnosis of cervical spine degenerative disc disease and spondylosis, and a clinical record received in December 2010 showing that the appellant had been diagnosed as having PTSD in May 2010while in prison. A VA medical problem list created and received in November 2010 also indicates a diagnosis of PTSD. This evidence is new, as it was not before the RO at the time of its November 2008 rating decision, or July 2010 SOC. Further, presuming its credibility, it is material, as it relates to unestablished facts necessary to substantiate the claims. Service connection was denied, in part, because there was no current disability for each claim. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant’s previously denied claims of service connection for a neck disability and PTSD are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Although the record is sufficient to warrant reopening of the claims, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. REASONS FOR REMAND The appellant has been diagnosed as having PTSD. See e.g. May 2010 prison records. He has reported that a fellow soldier would drunkenly brandish a pistol and threaten to shoot the appellant and other soldiers. The Board finds that this an indication that the appellant has a current psychiatric disorder which may be related to his active service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, he should be afforded an appropriate examination to determine the nature and etiology of any current psychiatric disability. The appellant was afforded a VA examination in August 2012 with respect to his neck and left arm claims. While the examiner offered negative etiological opinions regarding direct service connection and as to whether disabilities were caused by his service-connected right shoulder status post partial AC separation with minimal degenerative changes at the AC joint, the examiner did not address whether such were aggravated by the right shoulder disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, an addendum medical opinion should be obtained upon remand. The matters are REMANDED for the following action: 1. The appellant should be provided an appropriate examination to determine the nature and etiology of his current psychiatric disability. Access to the appellant’s electronic VA claims file should be made available to the examiner for review in connection with the examination. After examining the appellant, taking his medical history, and reviewing the claims file, the examiner should delineate all psychiatric disabilities identified on examination. He or she should then provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any psychiatric disability identified on examination is causally related to the appellant’s active service. If PTSD is diagnosed, the examiner should be asked to review the record and provide an opinion as to whether there is any evidence of behavior changes in service after the personal assault reported by the appellant which could provide corroborative evidence that the assaults occurred. (Evidence of behavior changes may include deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes). If the VA examiner concludes that there is evidence of behavior changes in service sufficient to corroborate the claimed personal assault, he or she should provide an opinion as to whether it is at least as likely as not that the appellant currently has PTSD as a result of those assaults or some other stressor. For any other mental disorder that is diagnosed, is it at least as likely as not that such disorder is causally related to the appellant’s active service or any incident therein? In providing the requested opinion and rationale, the examiner’s attention is directed to the May 2010 diagnosis of PTSD in his prison medical records and the appellant’s reports that (a) a fellow soldier would drunkenly brandish a pistol and threaten to shoot the appellant and other soldiers, see e.g. August 2007 VA Form 21-0781, and (b) he was beaten at an NCO club in Germany, see e.g. August 2012 Report of General Information. 2. Obtain a medical opinion from an appropriate clinician with respect to the nature and etiology of the appellant’s claimed neck and left arm disabilities. The claims file must be made available to and reviewed by the clinician rendering the requested opinions. The appellant should only be scheduled for an examination if deemed necessary by the clinician rendering the requested opinion. After reviewing the claims file, the examiner should opine as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the appellant’s neck disability, to include degenerative disc disease and spondylosis, had its inception during a period of active service or is otherwise causally related to the appellant’s active service or any incident therein? If not, is it at least as likely as not that the appellant’s neck disability is causally related to the service-connected right shoulder disability? If neither, it is at least as likely as not that the apppellant’s neck disability was aggravated by the service-connected right shoulder disability? If aggravation is found, the examiner must attempt to establish a baseline level of severity for the disability, prior to aggravation by the service-connected disability or disabilities. (b) Is it at least as likely as not that the appellant’s the appellant’s left arm disability, to include carpal tunnel syndrome, had its inception during a period of active service or is otherwise causally related to the appellant’s active service or any incident therein? If not, is it at least as likely as not that the appellant’s left arm disability is causally related to the service-connected right shoulder disability? If neither, it is at least as likely as not that the appellant’s left arm disability was aggravated by the service-connected right shoulder disability? If aggravation is found, the examiner must attempt to establish a baseline level of severity for the disability, prior to aggravation by the service-connected disability or disabilities. The examiner’s attention is directed to the August 2012 VA examination report and the appellant’s contention that, due to his right shoulder disability, he overcompensated with his neck and left arm, which caused him to develop neck problems and left arm numbness. See e.g. October 2014 Statement in Support of Claim. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel