Citation Nr: 18146315 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-39 567 DATE: October 31, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder, and the claim is reopened. REMANDED The reopened claim of entitlement to service connection for a low back disorder is remanded. The claim of entitlement to service connection for bilateral lower extremity neuropathy is remanded. The claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In an August 2008 rating decision, the RO denied service connection for a low back disorder. The Veteran did not appeal the decision and did not submit new and material evidence within one year. 2. Evidence received since the final August 2008, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSIONS OF LAW 1. The August 2008 rating decision denying service connection for a low back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2018). 2. The evidence received since the August 2008 rating decision is new and material as to the claim of service connection for a low back disorder, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In an August 2008 rating decision, the RO denied service connection for a low back disorder because the evidence did not demonstrate a nexus between the Veteran’s current back symptoms and service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 2008 decision includes the service treatment records (STRs), private treatment records received in February 2008, and a November 2007 VA examination. The STRs document treatment for a back injury in February 1984. The VA examination shows a diagnosis of back strain. The private treatment records indicate that the Veteran received a diagnosis of moderately severe lower lumbar facet arthropathy at L4-5 and L5-S1 in March 2006. Evidence submitted after the 2008 decision includes the Veteran’s claim and associated statements. In pertinent part, on his December 2015 Notice of Disagreement, the Veteran asserted that he received treatment for his back on multiple occasions while on active duty and since he retired from service in 1997. The lay statements indicate that the Veteran has suffered from back symptoms during service that continued to the present claim. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a nexus between the Veteran’s service and his present disorder. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. The reopened claim is remanded below. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder and bilateral lower extremity neuropathy. Remand is required to obtain an opinion that addresses the Veteran’s claim. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an opinion. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the evidence demonstrates a present diagnosis and an in-service injury. The Veteran has also credibly asserted that he has suffered from continuous symptoms since his service. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 2. The claim of entitlement to service connection for PTSD. The Board finds that remand is required to make attempts to verify the Veteran’s reported stressors for his claim of entitlement to service connection for PTSD. Thereafter, an examination should be provided. First, in support of his claim the Veteran submitted a September 2015 statement detailing a series of stressor events. While assigned to MAG-46 from July 1981 to May 1984, he reportedly witnessed an aircraft accident resulting in several destroyed aircraft and the death of one pilot who had ejected into an apron while the aircraft was still on the ground. He also served in a recovery team for an aircraft crash in the Summer of 1983. The Veteran reported witnessing a large impact crater surrounded by aircraft debris and human remains. He described witnessing two other incidents, one resulting in a failed ejection while an aircraft was still on the ground and another resulting in an aircraft crashing into the Potomac River. The Veteran reportedly knew one of the servicemembers onboard the latter aircraft. The Veteran submitted his stressor accounts in September 2018, more than 30 days after the RO had requested he submit stressor documentation. The RO noted that in a November 2015 Administrative Decision in explaining that there was no evidence sufficient to corroborate the Veteran’s reported stressors. The Board nevertheless finds that remand is required for an initial investigation into the Veteran’s claims. On remand, efforts must be made to verify the Veteran’s reported stressors. Thereafter, an examination should be provided. VA treatment records show a present diagnosis of PTSD. The Veteran’s statements indicate that this diagnosis may be associated with an in-service event. As such, after steps have been taken to verify the Veteran’s stressors, an examination should be provided. See McLendon, supra. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Take all necessary steps to verify each of the Veteran’s reported stressors in a VA Form 21-0781 Statement in Support of Claim for Service Connection for PTSD, received in September 2015. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must determine the appropriate diagnosis for the Veteran’s low back disorder. In doing so, the examiner should address a January 2008 letter from the Veteran’s private provider indicating that the x-rays had shown moderately severe lower lumbar facet arthropathy at L4-5 and L5-S1 in March 2006. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed low back disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of an in-service treatment of his back and post-service symptoms since then. The examiner must also specifically address any records showing back complaints contained in the Veteran’s STRs. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any diagnosed psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must express an opinion as to whether the Veteran meets the criteria for PTSD. If the examiner finds that the Veteran does not meet the criteria, then the VA treatment records that provides a diagnosis of PTSD must expressly be commented on. If the examiner finds that the Veteran meets such criteria, the examiner must provide an opinion whether PTSD can be related to the stressor or stressors established as having occurred during active service. In doing so, the examiner should acknowledge all of the Veteran’s lay statements regarding the claimed stressors. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel