Citation Nr: 18145753 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-01 441 DATE: October 30, 2018 ORDER Entitlement to service connection for a neck condition is dismissed. Entitlement to service connection for middle shoulder neurological disability is dismissed. Whether new and material evidence has been received to reopen service connection for a right ankle condition is dismissed. Whether new and material evidence has been received to reopen service connection for a back condition is granted. Whether new and material evidence has been received to reopen service connection for a psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder, is granted. REMANDED Entitlement to service connection for back disability is remanded. Entitlement to service connection for right leg radiculopathy, to include as secondary to back condition, is remanded. FINDINGS OF FACT 1. At the Veteran’s April 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he did not wish to appeal his claims for entitlement to service connection for a neck condition, service connection for middle shoulder neurological disability, and whether and new and material evidence has been received to reopen service connection for right ankle disability. 2. The June 1988 rating decision, which continued the denial of service connection for residuals of back strain and service connection for chronic psychiatric disability, became final, as the Veteran did not appeal the decision within 60 days of the statement of the case or submit new and material evidence within a year of the rating decision. 3. Since the June 1988 rating decision, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran’s claims for entitlement to service connection for a back disability and acquired psychiatric disorder. 4. The probative evidence of record is at least in relative equipoise that the Veteran currently suffers from an acquired psychiatric disorder that is related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for neck condition by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for service connection for middle shoulder neurological disability by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal for whether new and material evidence has been received to reopen service connection for right ankle condition by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The June 1988 rating decision denying service connection for back strain residuals and service connection for chronic psychiatric disability became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 5. New and material evidence has been received to reopen service connection for back strain residuals (back disability) and service connection for psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1153, 5103, 5103A, 5107(b); 38 C.F.R §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from July 1977 to April 1980. In April 2018, the Veteran was provided a hearing with the undersigned Veterans Law Judge, and a transcript of the proceeding is of record. Withdrawal of Claim An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). An appeal may be withdrawn by an appellant or by his representative. 38 C.F.R. § 20.204 (a) (2017). Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204 (b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). During the April 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of whether new and material evidence has been received to reopen service connection for right ankle disability, entitlement to service connection for neck condition, and service connection for middle shoulder neurological disability. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. The Veteran’s full understanding of the consequences are shown based on the fact that prior to the hearing, the consequences of withdrawal of these claims were fully discussed by the undersigned and the Veteran’s representative. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Due to the Veteran expressing his desire to withdraw his appeals before the Board, there is effectively no longer any remaining allegation of error of fact or law concerning the claims. See 38 U.S.C. § 7105 (d)(5). New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105 (2012). However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran is seeking to reopen service connection for back strain residuals, now claimed as back disability, and service connection for psychiatric disorder. The claim was previously denied in June 1988 due to there being no medical evidence showing the Veteran’s back condition and psychiatric disorder were related to a period of active duty service. The rating decision became final, as the Veteran did not appeal the statement of the case within 60 days or submit new and material evidence within one year of the rating decision. Since the prior final decision, the Veteran has submitted additional medical records, to include a private medical opinion regarding his psychiatric disorder, VA examinations, and has testified at an April 2018 Board hearing. The Board finds this evidence is new, as it has not been part of the record before, and material, as the private medical opinion and VA examinations pertain to a factor in possibly substantiating the claims for service connection. Therefore, the evidence is to be considered new and material, and the claims are reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). To be entitled to service connection for PTSD, as opposed to another mental health disorder, the record must include (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., DSM-IV for appeals before August 4, 2014 and DSM-V for appeals certified after August 4, 2014); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Factual Analysis-Psychiatric Disorder The Veteran contends that he currently suffers from a psychiatric disorder, to include PTSD and bipolar disorder, that is related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with bipolar disorder and has received treatment for PTSD. Further, the Veteran contends that he was attacked in service by a superior, which caused a back injury. The Board notes that the Veteran’s service treatment records (STRs) confirm he was treated for a back strain in November 1978 after being thrown against a wall by a first sergeant and his records further show the Veteran was seen for a psychiatric visit in April 1979. In September 2018, the Veteran provided a July 2018 private medical examination with an opinion and psychological impairment questionnaire dated August 2018. The physician diagnosed the Veteran with PTSD and bipolar disorder. The examiner provided a detailed explanation of the DSM-V criteria and description of the Veteran’s past medical history, social history, and stressor. The examiner then opined that it was at least as likely as not the Veteran’s PTSD and bipolar disorder were caused by the assault the Veteran sustained while in service. The examiner rationalized that after a comprehensive review of the Veteran’s medical records and a psychiatric examination, there was no evidence of any psychiatric disorders or predisposition the Veteran had prior or subsequent to his military service that would account for his mental illness. The Board recognizes that an October 2012 VA examiner found the Veteran’s bipolar disorder was not related to service, as the origin was not a consequence of a stressor event, and there was a significant genetic load associated with bipolar disorder. However, in applying the benefit of the doubt in favor of the Veteran, the Board finds the evidence is in relative equipoise that the Veteran has a psychiatric disorder that is related to his active duty service. Further, as provided above, the Veteran’s records do show he suffered from a back strain after being assaulted by his superior. Therefore, the Board finds the July 2018 private opinion to be of significant probative value in determining the Veteran’s psychiatric disorder is related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the private physician showed knowledge of the Veteran’s background and based the opinion on the Veteran’s lay contentions, his reported medical history, review of the medical evidence of record, and a full examination of the Veteran. Additionally, a complete and thorough rationale was provided for the opinion rendered and is consistent with the medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Thus, the Board concludes that the probative evidence of record is for the claim and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s claims. Back Condition and Right Leg Radiculopathy The Veteran contends that he suffers from a back disability and right leg radicular condition that are related to his active duty service. In October 2012, the Veteran received a VA examination. The examiner opined that the Veteran’s back condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that the Veteran’s two in-service back strains would not account for the back condition he has now, as there is no chronicity. The examiner further stated that other factors would be more likely the cause of the low back condition. The examiner explained that the Veteran’s separation examination did not mention any back condition and after his June 1979 back muscle strain, there were no radicular complaints and no further documentation of back issues. The Board finds the October 2012 VA opinion is inadequate to fairly adjudicate the Veteran’s claims for service connection. Although the VA examiner opined that the Veteran’s back condition was less likely than not due to his in-service back strains, the examiner did not address or mention the noted July 1979 “mild scoliosis” in the Veterans STRs. The Board further notes that due to the Veteran claiming his right leg radicular pain is related to his back condition, the claim for right leg radiculopathy must also be remanded since it is inextricably intertwined with his claim for back disability. Therefore, the Board finds that a remand is required in order to obtain a new medical examination with an opinion addressing the nature and etiologies of the claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records relevant to the Veteran’s back disability and right leg claims. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for an examination with an appropriate examiner to determine the etiology of any back disability and right leg radicular condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: (a) Is it clear and unmistakable that the Veteran entered active military service with a pre-existing scoliosis back condition? (b) If YES, is it clear and unmistakable that the Veteran’s pre-existing scoliosis back condition WAS NOT aggravated beyond the natural progress of the disorder by his active military service? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. (c) If the Veteran DID NOT clearly and unmistakably enter active military service with pre-existing scoliosis back condition, is it at least as likely as not (50 percent probability or more) that the Veteran’s back condition, to include degenerative joint disease of the lumbar spine and spondylolisthesis, are related to his period of active service, to include his November 1978 and June 1979 in-service back strains following trauma and July 1979 notations of mild scoliosis. (d) Then, opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right leg radicular condition is due to OR aggravated by his back condition. “Aggravation” is defined as any worsening beyond the natural progression of the disability. (e) If the Veteran’s right leg radicular condition is NOT due to or aggravated by his back condition, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right leg radicular condition had its onset during, or is otherwise related to, his active duty service. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel