Citation Nr: 18147232 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-40 832 DATE: November 2, 2018 ORDER New and material evidence having been received, a claim of entitlement to service connection for degenerative arthritis of the spine is reopened; to this extent only, the appeal is granted. Entitlement to service connection for a right thumb condition is denied. Entitlement to service connection for a right heel condition is denied. REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for degenerative arthritis of the spine is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. FINDINGS OF FACT 1. A final August 2001 rating decision denied entitlement to a claim of service connection for low back pain, originally claimed as scoliosis. 2. Evidence regarding a low back condition received since the August 2001 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis related to the right thumb. 4. Degenerative changes in the right heel were not present in service, did not manifest to a compensable disabling degree within the first year after the Veteran completed his service, and are not otherwise shown to be causally related to his service. CONCLUSIONS OF LAW 1. The August 2001 rating decision that denied entitlement to service connection for a low back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for a low back condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria establishing entitlement to service connection for a right thumb disability are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria establishing entitlement to service connection for a right heel disability are not met. 38 U.S.C. §§ 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1976 to January 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2015, June 2015, and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran submitted notices of disagreement in April 2015, June 2015, and March 2017. Statements of the case were issued in October 2015, April 2016, and October 2017. The Veteran perfected timely substantive appeals via VA Form 9 in November 2015, April 2016, and November 2017. The Veteran initially filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma. He described experiencing depression, anxiety, and panic attacks. The medical evidence of record reflects diagnoses related to anxiety and depression. Accordingly, the Board has recharacterized the claim as entitlement to service connection for an acquired psychiatric disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In an April 2018 letter from the RO, the Veteran requested to participate in VA’s Rapid Appeals Modernization Program (RAMP), selecting the option for “Higher-Level Review.” However, appeals that have been activated by the Board are not eligible for RAMP processing. The issues on appeal herein were activated by the Board in November 2017, prior to the Veteran’s participation in RAMP. Therefore, adjudication will continue pursuant to current appeals procedures. The Board acknowledges that the record reflects the Veteran’s statement during a June 2017 psychiatric check-up that “they gave me social security.” Where a veteran receives Social Security benefits which are based on the determination of disability, those records are potentially relevant and should be obtained. Social Security Administration (SSA) records are relevant to a claim and VA must obtain them where either (1) there is a Social Security decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the Social Security records may pertain to the claimed disability. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). In the Remand section below, the Board has requested that the AOJ obtain the SSA records in order to satisfy the duty to assist the Veteran with substantiating the remanded claims. However, for the issues decided herein, the Board finds that the Social Security records are not relevant. There is no indication of a SSA decision pertaining to the right thumb or heel, and the record does not reflect specific allegations suggesting that SSA records pertain in any way to a right thumb or heel condition. Indeed, the Veteran reported receiving benefits due to low back and psychological conditions. Furthermore, in regard to the right heel claim, the decision is based upon a medical opinion as to whether the condition is related to service, rather than medical history or a determination regarding the Veteran’s current level of disability. Therefore, a remand for SSA records on these issues is not necessary. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative arthritis of the spine. A claim of entitlement to service connection for a low back condition, claimed as scoliosis, was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 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; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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(a). 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). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (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). 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Here, an August 2001 rating decision denied a claim of entitlement to service connection for a low back condition, originally claimed as scoliosis. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The August 2001 rating decision therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the August 2001 rating decision included service treatment records (STRs) and the June 2000 application submitted by the Veteran. In October 2014, the Veteran filed a claim of entitlement to service connection for a back condition. Relevant additional evidence received since the August 2001 rating decision includes post-service VA and private treatment records, VA examination reports, and further details from the Veteran regarding the onset and symptoms of the back condition. This evidence was not previously on file at the time of the August 2001 decision; thus, it is new. Significantly, the Veteran has described a fall in service resulting in back pain and submitted a lay statement from a fellow solider who witnessed the fall. This evidence is material because it bears directly on the issue of an in-service incident, which is one of the reasons the claim was previously denied. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a low back condition, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold as set forth in Shade, supra. Accordingly, the claim of entitlement to service connection for a low back condition is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson, 12 Vet. App. at 247. Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Arthritis is included in the list of chronic diseases under 38 C.F.R. § 3.309(a). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 2. Entitlement to service connection for a right thumb condition. The Veteran contends that service connection is warranted for a right thumb condition. Specifically, he contends that he injured his right thumb in an accident with a car door during service. Upon VA examination in May 2016, the examiner noted a right thumb injury in March 1975, described as distal hematoma, resolved. The Veteran denied any current pain, functional loss, or functional impairment due to his right thumb. The range of motion was within normal limits upon physical testing. The examiner stated that the physical examination was unremarkable and that there was no evidence of a right thumb injury at present, although the record confirmed the incident with the car door during service. The Board has also reviewed the Veteran’s available post-service treatment records. There is no diagnosis of a right thumb condition evident from this review. While not disputing that an in-service incident occurred for which the Veteran received treatment for a right thumb injury, there is no indication of any right thumb condition post-service. In all claims for service connection, the threshold requirement is evidence of a currently diagnosed disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran is competent to report his symptoms, including right thumb pain. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). However, competent testimony is limited to that which the witness has actually observed and is within the realm of his or her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). While it is within the Veteran’s realm of personal knowledge whether he experienced pain, he has not shown that he possesses the expertise necessary to opine on the complex matter of diagnosing arthritis or musculoskeletal condition. Id. Moreover, the evidence does not persuasively show that any claimed symptoms reach the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018). The Board assigns little probative value to the Veteran’s assertions regarding a right thumb condition in light of the conflicting objective medical evidence of record which fails to show any current diagnosis. Based upon the evidence of record, the Board concludes that entitlement to service connection for a right thumb condition cannot be granted. The competent, probative evidence does not show that the Veteran has a current diagnosis related to the right thumb. Where the medical evidence establishes that a veteran does not currently have a disability for which service connection is sought, service connection for that disability is not authorized under the statutes governing veterans’ benefits. See Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection for a right thumb condition may be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57. 3. Entitlement to service connection for a right heel condition. The Veteran contends that service connection is warranted for a right heel condition incurred due to service. Specifically, he asserts that he injured his right heel playing basketball in service. The Veteran has been diagnosed with mild degenerative changes in the right heel, as documented in the May 2016 VA examination. Thus, a current diagnosis is established. STRs reflect that the Veteran was treated for a right heel contusion in June 1978, as the result of coming down on his heel after jumping during a game of basketball. In a September 1978 Report of Medical History completed in preparation for separation from the service, the Veteran reported heel pain in his right foot. Accordingly, the Board finds that the in-service element is met. Thus, the Veteran’s claim turns upon whether there is sufficient evidence of a nexus between the right heel injury in service and the current diagnosis of degenerative changes in the heel. However, after careful consideration of the record, the Board finds that the weight of the probative evidence is against a finding that the currently-diagnosed mild degenerative changes are causally related to the in-service right heel contusion. Upon VA examination in June 2018, the examiner documented the Veteran’s report that his right heel pain began during service. The Veteran reported current right ankle discomfort associated with prolonged ambulation. He denied flare-ups or any functional loss or impairment. Upon physical examination, the range of motion of the right ankle was within normal limits. X-rays performed in conjunction with the examination revealed mild degenerative changes in the right heel. After review of the claims file, the examiner acknowledged that the Veteran complained of right heel pain in service. She stated that it was an acute condition treated at the time. She found no evidence of continuity after service. The examiner reported that the present x-ray findings are compatible with degenerative changes expected as the result of the normal aging process. Ultimately, she opined that the current right heel condition was less likely than not incurred in service or the result of the right heel contusion treated in service. Whether an examiner provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the May 2016 opinion was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. It was based on a physical examination of the Veteran and review of the claims file, and accompanied by sufficient explanations. Additionally, the examiner adequately addressed the elements related to direct service connection, including the Veteran’s contentions regarding the injury and treatment of his right heel in-service. Thus, the Board affords the VA examiner’s opinion significant probative value on the issue of etiology. The Board finds that the Veteran’s assertions as to medical relationship or nexus do not provide persuasive support for the claim in this case. The etiology of a condition such as arthritis is a complex matter within the province of trained medical professionals. See, e.g., Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues, determining the etiology of a complex condition such as degenerative changes falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is competent to report his symptoms during and after service, any opinion regarding whether right heel arthritis is etiologically related to his military service requires medical expertise that he has not demonstrated. See Jandreau, 492 F. 3d at 1376. As such, the Board assigns little probative value to the lay contentions that his condition is related to his military service. Significantly, no objective medical evidence of record rebuts the findings of the VA examiner. Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran’s favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). The Board also notes that degenerative changes in the right heel cannot be service connected on a presumptive or continuity of symptomatology basis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. The regulation pertaining to chronic diseases, including arthritis, deals with three theories of entitlement: 1) a chronic diagnosis in service linked to the same chronic diagnosis after service; 2) a chronic diagnosis or symptoms thereof within a year of separation; or 3) continuity of symptomatology. As described above, the evidence does not reflect and the Veteran does not contend that there was a diagnosis of arthritis in service or within a year of separation. Additionally, the record does not contain persuasive evidence weighing in favor of continuity of symptomatology. Accordingly, service connection for right heel degenerative changes is not warranted on a presumptive or continuity of symptomatology basis. In summary, while the lay contentions as to the etiology of the right heel condition have been considered, the Board accords greater weight to the probative medical evidence of record. In the absence of competent medical evidence of a link between the condition and the Veteran’s injury during service, service connection for a right heel condition is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine condition and degenerative arthritis of the spine is remanded. The Veteran underwent a VA examination in March 2015 in conjunction with his claim of entitlement to service connection for a low back condition. The examiner diagnosed degenerative arthritis of the spine. She found no evidence of treatment for a back condition during service, although she noted that the Veteran complained of back pain upon separation. She opined that the diagnosed back condition was less likely due to service and more likely age-related. No examination was conducted regarding the Veteran’s cervical spine claim. The RO denied the claim in the June 2015 rating decision after finding no evidence of a neck or cervical spine condition during service. The Veteran submitted a lay statement from a fellow solider in May 2015. Captain S. described witnessing the Veteran fall from a truck ladder during a war simulation training. He estimated that the distance of the fall was approximately five feet. He stated that the Veteran complained of hurting his neck and back when he fell. He noticed scratches on the Veteran’s face after the fall. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for a cervical spine condition and degenerative arthritis of the spine because there is no medical opinion addressing the Veteran’s contentions that his fall in service is etiologically related to the currently diagnosed cervical and lumbar spine conditions. Accordingly, remand is warranted to obtain a medical opinion completed with consideration of the lay evidence of record. 2. Entitlement to service connection for an acquired psychiatric condition is remanded. The Veteran contends that service connection is warranted for an acquired psychiatric condition incurred as the result of his service. Specifically, he asserts that he was sexually harassed and assaulted by a female soldier, resulting in PTSD. As discussed above, the Veteran’s statements during a March 2015 VA psychiatric appointment indicate that there may be outstanding and relevant SSA records. A remand is required to allow VA to request these records. Additionally, a June 2017 treatment note indicates that the Veteran received private psychiatric treatment. A remand is required to allow VA to obtain authorization and request these records. Furthermore, on remand, the RO is requested to complete development and corroboration of the claimed stressor to the fullest extent possible. In a March 2016 VA Form 21-0781a, the Veteran described experiencing depression, anxiety, and panic attacks because of the personal assault. He also described testing for HIV or a sexually transmitted disease, the breakup of his primary relationship, visiting medical or counseling without a diagnosis, changes in duty assignment, and increased use of leave without apparent reason. In March 2017, the Veteran submitted a statement from a fellow soldier in his unit. Captain S. recalled that the Veteran complained for approximately two years about feeling sexually harassed by a female soldier. Captain S. told the Veteran to report the problem to the First Sergeant, but he could not verify if a report was made. He noted that it was considered taboo at the time to report sexual assault, especially as a man. He also recalled that the Veteran was afraid of reporting due to threats and possible retaliation. He stated that the Veteran’s behavior began to change and he became withdrawn socially. In the June 2017 psychiatric asssessment, the Veteran stated that the relationship with his harasser ended when he was diagnosed with gonorrhea. STRs reflect that he complained of a burning sensation in November 1978 and was given an assessment of balanitis. Finally, the medical evidence reflects that the Veteran has repeatedly screened negatively for PTSD. A June 2017 psychiatric evaluation found that the Veteran did not meet the diagnostic criteria for PTSD, but he was diagnosed with depressive disorder. Previous treatment records reflect diagnoses related to depression and anxiety. VA’s statutory duty to assist the Veteran 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) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, remand is required to provide the Veteran a VA examination, which adequately addresses the relationship, if any, between any psychiatric disability and his service, to include the lay statements regarding personal assault while in service. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the psychiatric treatment providers referenced in the June 2017 VA treatment note. Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s federal records from the Social Security Administration, to include disability determinations and the underlying medical records upon which the determinations were made. Document all requests for information as well as all responses in the claims file. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the claimed cervical spine and degenerative arthritis of the spine conditions. (a.) The examiner must opine whether the Veteran’s cervical spine and degenerative arthritis of the spine conditions are at least as likely as not related to his service, to include a fall from a truck bed approximately five feet off the ground. The examiner should address the likelihood that injuries such as those described by the Veteran could have caused the Veteran's current neck and back disorders (i.e., indicate whether the pathology/disease process associated with the Veteran's neck and back is consistent with the mechanism of injury claimed by the Veteran). 4. Attempt to corroborate the Veteran’s in-service stressor based on personal assault, including consideration of the supporting lay statement from a fellow soldier and any corroborating medical or military personnel records, and separately filed service mental hygiene records. If more details are needed, contact the Veteran to request the information. 5. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor. (b.) The examiner must opine whether the evidence of record, including the Veteran’s lay statements, statements made by Captain S., and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault of the Veteran by a female soldier. (c.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the lay evidence of the alleged personal assault of the Veteran by a female soldier. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.