Citation Nr: 18145374 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-25 049 DATE: October 26, 2018 ORDER The application to reopen the claim for entitlement to service connection for right ankle disability is granted. Entitlement to service connection for right ankle strain is granted. Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for acquired psychiatric disorder, diagnosed as dysthymic disorder, is granted. REFERRED The issue of entitlement a total disability rating due to individual unemployability (TDIU) has been raised by the record in the Veteran’s February 2018 private examination indicating that he is permanently and totally disabled and unemployable due to the symptoms related to his now service-connected dysthymic disorder. This issue has not, however, been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for a TDIU must be submitted on VA Form 21-8940 prescribed by the Secretary of VA and providing said form. See 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (continuing to provide for Board referral of unadjudicated claims). FINDINGS OF FACT 1. In a May 2012 rating decision, the RO denied the Veteran’s claim for service connection for right ankle injury. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since the May 2012 rating decision relates to the basis of the prior final denial. 3. The evidence is at least evenly balanced as to whether the Veteran’s right ankle disability is related to service. 4. The preponderance of the evidence is against a finding that the Veteran’s cervical spine disability is related to service. 5. The preponderance of the evidence shows that the Veteran’s dysthymic disorder is related to service. CONCLUSIONS OF LAW 1. The May 2012 rating decision that denied the claim of entitlement to service connection for right ankle disability is final. 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 3.156(b), 20.202, 20.1103. 2. Evidence received since the May 2012 decision is material and the criteria for reopening the claim for entitlement to service connection for right ankle disability have therefore been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for right ankle disability are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for an acquired psychiatric disorder, diagnosed as dysthymic disorder, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1973 to July 1976. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In order to reopen a previous and final disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). 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 (1992). The Veteran’s claim for service connection for right ankle disability was denied in a May 2012 rating decision on the basis that it was not related to service. The Veteran neither appealed nor submitted new and material evidence within the one-year period. Accordingly, the May 2012 rating decision is final. See 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 20.302, 20.1103. The evidence received since the May 2012 rating decision includes lay evidence from former colleagues of the Veteran discussing the nature of the Veteran’s in-service injury as well as multiple examinations and opinions on whether the right ankle disability is related to his in-service injury. As this new evidence relates to unestablished facts necessary to substantiate the claim, the evidence received since May 2012 is new and material and a reopening of the claim for service connection for right ankle disability is warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that each of the disabilities for which he is claiming service connection stem from the same in-service injury. While serving in the 82nd Airborne Division of the Army, the Veteran jumped out of a plane during an operation in the spring of 1976. During the jump, his parachute malfunctioned at about 500 feet above the ground. He successfully pulled the reserve chute, but he landed on his foot and back, resulting in claimed injuries to his right ankle and neck. There is remarkable consistency among the medical and lay evidence throughout the record regarding this in-service injury, lending credibility to the Veteran’s description of the stated injury. The Veteran is also competent to describe an in-service injury that he incurred. As such, the in-service injury element of the service connection claims on appeal has been established. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (when weighing the evidence and determining witness credibility, the Board may consider factors such as consistency), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 1. Entitlement to service connection for right ankle disability Lay evidence from former Army colleagues indicates that the Veteran’s right ankle injury from the parachute malfunction still bothers him to this day. In a January 2012 medical note, the Veteran’s right ankle pain was noted as throbbing with weather changes. In a February 2012 VA examination, the Veteran was diagnosed with a right ankle strain, a diagnosis that was provided again in a February 2015 VA examination. As such, the current disability requirement is met. Regarding nexus, the claims file contains two medical opinions. Following a November 2013 examination, a private examiner opined that based on the history provided by the patient and his examination results that his current right ankle problems were more probable than not related to his service injury. The examiner reasoned that the Veteran never had any problems with his ankle prior to this jump and reported no trauma to the ankle prior to or since the incident. The examiner provided a similar medical opinion based on the same evidence in February 2018. As the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, it is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Following a February 2015 VA examination, the examiner provided a negative medical opinion, stating that he was first diagnosed with a right ankle sprain in April 1976 after playing basketball and then suffered the parachute malfunction injury two months later in June 1976. Service treatment records corroborate that he was seen for his right ankle in June 1976. The examiner elaborated that the Veteran made no mention of chronic ankle pain, no evidence of continuity of care for his right ankle condition in the 35 years following service, and that repeated trauma from years of airborne operations can cause degeneration of the joints, which is not seen in the Veteran. While the Veteran did note in a February 2012 lay statement that he also hurt his right ankle during a basketball game, the game occurred during service during an army competition between two companies. This would also qualify as an in-service injury. Despite that, the VA examiner did not opine as to whether the parachute malfunction injury aggravated the previously injured right ankle sprain. As such, February 2012 VA examiner’s medical opinion is afforded limited probative value. The above evidence reflects that is a probative medical opinion weighing in favor and a medical opinion of limited probative value weighing against service connection for the Veteran’s right ankle strain. The preponderance of the evidence therefore supports a grant of service connection for this disability. 2. Entitlement to service connection for cervical spine disability In an October 2013 private examination, the Veteran was diagnosed with cervical segmental dysfunction and cervical myalgia. Similarly, in his February 2015 VA examination, the Veteran was diagnosed with cervical degenerative disc disorder. As such, the current disability requirement is established. Regarding nexus, there are two medical opinions. First, the October 2013 private examiner concluded, following a full examination, that the symptoms presented by the Veteran “could have a direct relationship to the injury he sustained while in service.” While the examiner did not provide a rationale, a physician need not explicitly lay out their journey from the facts to a conclusion in order for an opinion to be considered probative. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). However, in this instance, the examiner also provided a diagnosis of four other disabilities and did not specify which symptoms were related to the Veteran’s in-service injury in a clear fashion. Additionally, the opinion was not expressed in sufficiently definitive terms; rather, the examiner stated that the Veteran’s symptoms “could have” a direct relationship to the in-service injury. Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to ‘may or may not’ is an insufficient basis for an award of service connection). Moreover, the examination referred to a “work related injury dating back to military service,” not specifically noting the parachute malfunction injury that was mentioned by the Veteran in every other examination in the record. Thus, the opinion’s deficiencies, while not rendering it inadequate, limit its probative value. In contrast, the February 2015 VA examiner provided a thorough rationale in concluding that the Veteran’s cervical spine disability is less likely than not related to his in-service injury. Although the examiner referenced the right ankle in his opinion, reading the opinion as a whole and in the context of the evidence of record, it is clear that he was referring to the cervical spine, as that was the disability to which he primarily referred in the preceding sentences. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The examiner elaborated that while the Veteran was seen for a complaint of his right ankle pain following his parachute malfunction, he did not seek out treatment for neck pain. He did not begin care at the VA until June 2010 and even then made no mention of neck pain at that time. Similarly, there is no evidence of care or continuity of care for a cervical spine disability during service or in the years following until 2013. Moreover, as the VA examiner stated, degeneration of the cervical spine can be seen after many years of airborne operation and the rigors of military service, whereas mild cervical disc degeneration, as seen here, is more consistent with natural progression. As the opinion contains a thorough rationale and is consistent with the evidence of record, it is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Regarding the remaining evidence of record, the Veteran’s service treatment records note a neck rash in November 1973, but are otherwise silent as to his cervical spine disability. In an August 2014 statement, the Veteran indicated that he injured his neck when landing after the parachute malfunction. However, the Veteran did not indicate that he experienced continuous symptoms since service. The above evidence reflects that there is a highly probative medical opinion weighing against and a medical opinion and lay evidence of little probative value weighing in favor of the Veteran’s claim of service connection for his cervical spine disability. Whereas two opposing medical opinions of approximately equal probative value would warrant application of the benefit of the doubt doctrine in favor of service connection, here the use of the word “could,” in addition to the other deficiencies noted above warrants a finding that the negative opinion is of greater probative weight. To the extent that the Veteran has offered an opinion on the question of whether his cervical spine disability is related to the in-service injury, he is not competent to opine on this complex medical question. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Moreover, neither his statements nor the other evidence of record reflect that a chronic disease manifested in service, within the one-year presumptive period, or for many years thereafter. As such, the preponderance of the evidence is against finding that the Veteran’s cervical spine disability is related to his in-service injury. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for acquired psychiatric disorder, diagnosed as dysthymic disorder The Veteran contends that he has PTSD as a result of the in-service parachute malfunction. While the Veteran’s various claims for service connection have been for PTSD, he is also diagnosed with dysthymic disorder. The record reflects that the Veteran’s symptoms of PTSD are indistinguishable from his dysthymic disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009), the Court held that a claim is not necessarily limited in scope to a single or particular diagnosis, and should be construed based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. Thus, the claim for service connection for acquired psychiatric disorder to include PTSD has been broadened to include the dysthymic disorder with which the Veteran has been diagnosed. As previously noted, the Veteran was diagnosed with dysthymic disorder during an August 2013 private examination. The examiner noted that he has nightmares at least two times per week, flashbacks with reminders, panic attacks two times per month, and averages four hours of sleep per night. He startles easily, is hyper vigilant, is anti-social and experiences hallucinations. The examiner noted that he feels depressed 80 percent of the time with low energy and little interest in things. Thus, the current disability requirement is established. Regarding nexus, the August 2013 examiner concluded by stating “because of his service connected PTSD, Mr. [redacted] is unable to sustain relationships…” Reading this statement as a whole and in the context of the evidence of record, the Board infers that the examiner was indicating that the Veteran’s psychiatric symptoms are related to his military service. See Acevedo, 25 Vet. App. at 294. This examiner provided two subsequent positive medical opinions of the same variety in May 2016 and February 2018. Additionally, the claims file also contains lay evidence weighing in favor of service connection. In an August 2014 statement, the Veteran noted that he noticed that his chute was not properly deployed after leaving the aircraft and began to panic and be overcome with fear. He described that he was “somehow” able to get his reserve chute engaged despite being deathly afraid that the chutes would be entangled. He claims he has suffered from severe anxiety since the incident. Similarly, during the August 2013 examination, the Veteran stated that he believed he was going to die during the malfunction. This lay evidence is consistent with the medical evidence of record. (Continued on the next page)   Accordingly, the above evidence reflects that there is a probative medical opinion and lay evidence that weigh in favor of service connection for the Veteran’s dysthymic disorder and no evidence against. The preponderance of the evidence is therefore in support of the claim for entitlement to service connection for a psychiatric disorder diagnosed as dysthymic disorder. As there is no evidence that the symptoms of dysthymic disorder can be distinguished from the symptoms of PTSD, discussion of entitlement to service connection for PTSD is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel