Citation Nr: 18147559 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 13-34 054 DATE: November 5, 2018 ORDER There is new and material evidence to reopen the claim for service connection for a neck condition. Entitlement to service connection for cervical spine degenerative disc disease, claimed as a neck condition, is granted Entitlement to service connection for posttraumatic stress disorder (PTSD) also is granted. REMANDED Entitlement to service connection for head injury, to include traumatic brain injury is remanded. Entitlement to service connection for depressive disorder is remanded. FINDINGS OF FACT 1. In an unappealed February 2008 rating decision, the RO denied entitlement to service connection for a neck condition. 2. Additional evidence associated with the claims file since that February 2008 denial includes some relating to an unestablished fact necessary to substantiate the claim for service connection for a neck condition, is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating this claim. 3. The Veteran’s neck condition is related to an in-service motor vehicle accident. 4. The Veteran’s PTSD is related to a confirmed in-service stressor and the motor vehicle accident. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for a neck condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for a neck condition are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to April 1980 in the United States Army. New and Material Evidence As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is “new and material.” Under 38 C.F.R. § 3.156 (a), 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). Simply stated, the standard is low, but it is a standard that needs to be met. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. 1. Whether new and material evidence exists to reopen the Veteran’s claim of service connection for a neck condition. In a February 2008 rating decision, the RO denied the claim for entitlement to service connection for a neck condition based on a lack of in-service medical evidence of treatment of a neck condition and the passage of time before post-service treatment. The Veteran did not file an appeal and the decision became final. The pertinent evidence added to the record since the February 2008 denial, includes VA and private medical records showing that the Veteran has been diagnosed with and treated for a neck condition that is etiologically related to his active duty motor vehicle accident. The Board finds that this evidence is new, in that it is not cumulative or redundant of evidence already of record. Furthermore, the evidence relates to an unestablished fact necessary to substantiate the claim, i.e. that the Veteran has a current neck condition related to his active military service. As such, the Board finds that the low threshold requirement for new and material evidence has been satisfied, and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Entitlement to service connection for neck condition, diagnosed as cervical spine degenerative disc disease is granted. The Veteran contends that he has a neck condition that is etiologically related to an active duty motor vehicle accident. The Board concludes that the Veteran has a current diagnosis of cervical degenerative disc disease with central spinal stenosis that is related to his in-service motor vehicle accident. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). August 2012 private treatment records show the Veteran has a current diagnosis of Cervical spine degenerative disc disease, and an August 2012 private examiner opined that the Veteran’s cervical degenerative disc disease is at least as likely as not related to an in-service motor vehicle accident, as shown in the Veteran’s service treatment records (STRs). The private examiner, Dr. FG reviewed the entirety of the Veteran’s claims folder and conducted an in-person examination, opining that there was a “causal nexus to his motor vehicle accident in 1978 and structural changes within [cervical spine].” The rationale behind this opinion was based on Dr. FG’s review of the medical records since the in-service accident and the current physical nature of the Veteran’s neck condition. The Veteran also underwent a VA examination of the cervical spine in September 2009. The VA examiner diagnosed the Veteran with degenerative disc disease but opined that it was less likely than not due to active duty service because there were no complaints while in-service and the radiographic evidence could not be used to date the onset of the Veteran’s degenerative disc disease. However, this examination was primarily focused on the etiology of a claimed lumbar spine condition. Additionally, the Veteran has competently and credibly described the circumstances surrounding his motor vehicle accident, to include through sworn testimony before the undersigned. The Veteran stated that he had stiffness in his neck ever since the in-service motor vehicle accident. Therefore, the Board places more probative weight on the opinion of Dr. FG as it directly addresses the Veteran’s claimed neck condition, is based on a review of the Veteran’s full medical history, and a physical examination. The remaining VA examination merely relies on the lack of documented evidence of an in-service neck injury, does not take into account the Veteran’s competent and credible statements, and does not offer a direct opinion regarding the Veteran’s cervical spine. 2. Entitlement to service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between the veteran’s current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2017). The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it. 79 Fed. Reg. 45094 (Aug. 4, 2014).) That is the case with the Veteran’s claim. The Veteran contends that he has PTSD etiologically due to the in-service traumatic event of seeing a fellow soldier killed in an accident with a tank. The Board concludes that the Veteran has a current diagnosis of PTSD, confirmed in accordance with 38 C.F.R. § 4.125(a) that is related to the claimed in-service stressor which has been verified. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A November 2013 VA examination shows the Veteran has a current diagnosis of PTSD that meets the DSM-IV criteria, and the VA psychologist opined that the Veteran’s stressor of seeing a Sergeant “cut in half” by a tank was sufficient to support the diagnosis of PTSD and contributed to the Veteran’s PTSD diagnosis. Attempts to verify the stressor in question were successful and unit history from the Veteran’s active duty period confirmed that a Sergeant was killed attempting to ground guide a tank that “lurched forward and crushed Sgt. [].” Furthermore, the Veteran underwent a private psychological evaluation in August 2012, conducted by Dr. JN. Dr. JN also diagnosed the Veteran with PTSD conforming to the DSM-IV criteria and offered an opinion that it “more likely than not arises out of his time in the military service.” The Board notes that the Veteran’s claim has been denied primarily due to a lack of verified stressor. The Veteran originally provided three possible stressors, two of which were not verified, and the third of which was the accident concerning the tank. The Veteran had stated that he witnessed a Second Lieutenant that was killed, not a Sergeant and this appears to be the main rationale behind the denial. However, the Board finds that the Veteran has credibly reported the facts of the incident, to include in sworn testimony before the undersigned, and the only apparent discrepancy is with the rank of the soldier that was killed. The Veteran addressed this point specifically in his sworn testimony, stating that he was confused about the rank of the soldier that was killed when he filed the claim, only remembering that the man outranked him. The Board finds that, affording the Veteran the benefit of the doubt, the verified incident in the Veteran’s unit history concerning the death of a sergeant due to being crushed by a tank is the same incident the Veteran claimed as the source of his PTSD, a fact that is supported by the medical evidence of record. Therefore, service connection for PTSD is warranted. REASONS FOR REMAND 1. Entitlement to service connection for head injury, to include TBI is remanded. The Veteran indicated during his March 2014 hearing that he was hospitalized during service. A remand is required to allow VA to request these potentially relevant records. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for head injury, to include TBI, because no VA examiner has adequately opined whether the Veteran has current head injury residuals that are etiologically related to active duty service, to include a TBI. The Veteran’s previous TBI VA examination, conducted in January 2010, is internally inconsistent with regard to whether the Veteran lost conciousness following his in-service motor vehicle accident. Despite the inconsistency the examiner concluded that there was no record of loss of conciousness or a head injury but did not address the Veteran’s competent statements that he did lose concousness prior to being rescued from the motor vehicle accident. 2. Entitlement to service connection for depressive disorder, to include as secondary to service-connected cervical spine degenerative disc disease. The Board cannot make a fully-informed decision on the issue of enttilement to service connection for depressive disorder because no VA examiner has opined whether the Vetearn’s depressive disorder manifests as a separate disorder from service-connected PTSD and, if so, is caused or aggravated by service-connected cervical spine degenerative disc disease. The examiner must address the November 2013 VA examination indicating that the Veteran’s depression appears related to alleged physical difficulties. These remaining claims are REMANDED for the following action: 1. Obtain records of any inpatient treatment at the hospital at Ft. Knox, Kentucky in 1978. Document all requests for information as well as all responses in the claims file. (Continued on the next page)   2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has diagnoseable head injury, to include TBI, residuals at least as likely as not related to in-service motor vehicle accident with loss of consciousness. The examiner is instructed to accept as true that the Veteran lost consciousness following the accident. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s depressive disorder manifests as a separate disorder from his service-connected PTSD, and if so, is at least as likely as not related to proximately due to or aggravated by service-connected disability, specifically cervical spine degenerative disc disease. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod