Citation Nr: 18149926 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-36 609 DATE: 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hepatitis C. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder. 5. Entitlement to an increased disability rating for lumbosacral strain, currently rated as 20 percent disabling. 6. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities.   ORDER As new and material evidence has not been received, the claim to reopen service connection for a neck disability is denied. New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder, is remanded. Entitlement to an increased disability rating for lumbosacral strain, currently rated as 20 percent disabling, is remanded. Entitlement to a TDIU due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In an unappealed June 2009 rating decision, the RO declined to reopen service connection for a neck disability. Medical evidence, consisting solely of VA treatment records, received subsequent to the June 2009 rating decision are cumulative and redundant of the evidence at the time of the June 2009 rating decision and assuming their credibility do not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a neck disability. 2. In an unappealed June 2009 rating decision, the RO declined to reopen service connection for PTSD. Medical evidence, consisting of a previously unsubmitted private mental evaluation, received subsequent to the June 2009 rating decision is neither cumulative nor redundant of the evidence at the time of the June 2009 rating decision and assuming its credibility raises a reasonable possibility of substantiating the claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The June 2009 rating decision denying service connection for a neck disability is final. The medical evidence received for service connection subsequent to the June 2009 rating decision is not new and material to reopen the claim for entitlement to service connection for a neck disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). 2. The June 2009 rating decision declining to reopen a claim of entitlement to service connection for PTSD is final. The medical evidence received for service connection subsequent to the June 2009 rating decision is new and material to reopen the claim for entitlement to service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1982 to June 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). New and Material Evidence to Reopen Previously Denied Claims In an unappealed June 2009 rating decision, the RO denied service connection for a neck disability and declined to reopen a claim of entitlement to service connection for PTSD. In a July 2012 rating decision, the RO declined to reopen both of these matters and the they are now properly before the Board. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability. The evidence submitted since the June 2009 rating decision consists of the Veteran’s claim to reopen and VA treatment records. The Board notes that while these documents are new, in that they have not previously been submitted, they are not material as they do not address a requirement of service connection that was previously denied. Specifically, these do not provide a current diagnosis of any neck disability. No new facts were alleged in the Veteran’s September 2011 claim to reopen. Additionally, numerous treatment records have been associated with the claims file. Additionally, numerous VA treatment records have been associated with the claims file in which no diagnosis is provided for the Veteran’s claimed neck disability. As none of these address whether the Veteran has a currently diagnosed neck disability, the Board finds that this evidence is not material. As new and material evidence has not been received, the benefit of the doubt doctrine is not for application. See, Annoni v. Brown, 5 Vet. App. 462, 467 (1993) benefit of the doubt doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). 2. Whether new and material evidence has been received to reopen a claim of service connection for PTSD. In September 2018, VA received a September 1997 private mental evaluation from Dr. B. N. B. in which the Veteran reported that, while stationed in the Persian Gulf in 1982, he was knocked unconscious by an explosion, causing a head injury. The Veteran stated that since this incident he "sees a lot of bodies" while he is asleep and dreams about his experiences in the Persian Gulf. Diagnoses of cognitive disorder NOS (status post TBI), PTSD and mild mental retardation were noted. The Board notes that this medical evidence was not previously submitted to VA before the June 2009 rating decision and it therefore “new evidence.” The evidence received subsequent to the June 2009 rating decision is a mental evaluation diagnosing the Veteran with PTSD. The Board finds that, assuming its credibility for purposes of deciding whether to reopen the claim, this medical evidence of record constitutes new and material evidence to reopen the claim for service connection for PTSD. This new evidence addresses a requirement of service connection that was previously denied; a diagnosis of PTSD. Therefore, this new evidence is material and the Veteran’s claim for service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hepatitis C because no VA examiner has opined whether the Veteran’s hepatitis C is etiologically related to the Veteran’s service. As such, a remand for a VA examination is required. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder is remanded. In September 2006, VA received a letter from the Veteran stating that he has PTSD. Numerous treatment records from VA have shown a diagnosis of anxiety disorder, but not PTSD. A private mental evaluation dated 1997 but not received by VA until September 2018 notes a diagnosis of PTSD. The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified the scope of a claim on appeal by holding that when a Veteran files a claim he is seeking service connection for his symptoms, regardless of how those symptoms are diagnosed or labeled. In this case, the Veteran is seeking service connection for a mental health problems. As such, the Board finds that a remand is required for a new VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder, to include PTSD and an anxiety disorder. 3. Entitlement to an increased disability rating for lumbosacral strain, currently rated as 20 percent disabling is remanded. The Veteran was afforded a VA thoracolumbar spine examination in May 2017. Degenerative arthritis of the lumbar spine was noted. The Veteran reported flare-ups of intense pain. The Veteran further reported functional impairments of not being able to play with his grandchildren, not being able to run and only being able to “sit around all day.” Range of motion was not able to be tested as the Veteran stated he could not do it due to a flare-up. The examiner noted that pain was causing a functional loss. Muscle spasm and guarding were noted, but not causing abnormal gait or spinal contour. Muscle strength, reflex and sensory testing were normal. Radiculopathy was not noted. It was noted that the Veteran regularly uses a cane for ambulation. The Board notes that a July 2018 VA treatment record notes the Vetran had full ronage of motion for his lumbar spine. However, no measurements were provided. While the record contains contemporaneous VA examinations regarding the Veteran’s low back disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain any of the required measurements. As such, a remand is required. 4. Entitlement to a TDIU due to service-connected disabilities is remanded. Because a decision on the remanded issues on service connection for hepatitis C and an acquired psychiatric disorder, and an increased rating for a low back disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2018 to the Present. 2. Obtain the Veteran’s complete service personnel records. 3. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 4. After, and only after, completion of steps one through three above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hepatitis C. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Based on the review of the claims file, the examiner should comment on the occupational and functional impairment caused by hepatitis C. The examiner must list and discuss all of the Veteran’s in-service and post-service risk factors for contracting hepatitis C. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 5. After, and only after, completion of steps one through three above, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and an anxiety disorder. 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 a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. 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. Based on the review of the claims file, the examiner should comment on the occupational and functional impairment caused any acquired psychiatric disorder. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 6. After, and only after, completion of steps one through three above, schedule the Veteran for an examination of the current severity of his low back disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to low back disability alone and discuss the effect of the Veteran’s low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 7. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel