Citation Nr: 18150012 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-12 185 DATE: November 14, 2018 ORDER The request to reopen entitlement to service connection for a low back disorder is granted. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for left shoulder disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depressive disorder is remanded. Entitlement to a compensable disability rating for service-connected residuals of fracture of the right left, distal tibia is remanded. FINDINGS OF FACT 1. Evidence received since the final December 1993 rating decision that denied service connection for a low back disability is new and material. 2. A low back disorder was not caused by or related to active military service. 3. Hepatitis C was not caused by or related to active military service. CONCLUSIONS OF LAW 1. The request to reopen entitlement to service connection for a low back disorder are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a), (c). 2. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 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 1977 to January 1979. This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in September 2012, March 2014, and February 2015. The Veteran requested a Travel Board hearing in the March 2014 substantive appeal; however, the Veteran failed to appear at the scheduled hearing in June 2016. In November 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to reschedule the travel Board hearing as the letter notifying the Veteran of the time, date, and place of the scheduled Board hearing was returned to the RO as undeliverable and the Veteran’s attorney indicated that he still desired a hearing. In January 2018, the RO sent a letter to the Veteran informing him that he was scheduled for a video Board hearing in February 2018. The day before the scheduled hearing the Veteran’s attorney requested that the hearing be rescheduled as she had been unable to locate her client. The Veteran failed to appear at the scheduled Board hearing. In September 2018, the Veterans Law Judge who was scheduled to preside over the February 2018 Board hearing denied the motion to reschedule the hearing before the Board as the request for a new hearing date was not timely or good cause was not shown as to why the hearing should be rescheduled. Thus, the hearing request is considered withdrawn. 38 C.F.R. §§ 20.702(e), 20.704(d). Although, the Veteran filed a service connection claim for PTSD, the evidence associated with the claims file reveals that the Veteran has a diagnosis of depressive disorder. Thus, the Board considers the claim to include service connection for an acquired psychiatric disorder to include PTSD and major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim). New and Material Evidence 1. The request to reopen entitlement to service connection for a low back disorder. In a December 1993 rating decision, the RO denied the Veteran’s service connection claim for a low back disability. The basis of the denial was that the low back strain documented in service was an acute condition, which resolved without residuals. The Veteran failed to report for a scheduled VA examination, and the RO determined that no current chronic back disability could be identified. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Board decisions are final when issued, unless the Board Chairman orders reconsideration. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). Although notified of the denial in December 1993, the Veteran did not initiate an appeal with the December 1993 rating decision. Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. §§ 3.156(b), (c). Accordingly, the December 1993 rating decision is final. 38 C.F.R. § 20.1103 (2017). Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a). When “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Since the December 1993 rating decision, additional evidence has been associated with the claims file, including a September 2014 VA examination that provides a current diagnosis of L4-5, L5-S1 degenerative disc disease and facet arthropathy and lay statements that he had recurrent low back pain since the injury in service. This evidence, is new and material because, when considered with the evidence previously of record, it suggests that the Veteran has a current diagnosis of a chronic low back disorder, which was not shown at the time of the 1993 denial. Thus, the new evidence raises a reasonable possibility of substantiating the claim. Therefore, the requirements for reopening the previously denied service connection claim for a low back disorder are met. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also 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). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 2. Entitlement to service connection for a low back disorder. The Veteran contends that his current low back disorder is caused by or related to a back injury that occurred during active military service. Specifically, he asserts that he was in an armored personal carrier standing near a cargo hatch when he hit his side and back. The Veteran asserts that his back problem started in the Army and he every so often he would have back pain. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of L4-5, L5-S1 degenerative disc disease and facet arthropathy, and evidence shows that he was diagnosed with low back strain during active military service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of L4-5, L5-S1 degenerative disc disease and facet arthropathy began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records reveal that he sought treatment for low back pain in September 1977. He reported that the onset of the back pain was four to five months prior to seeking treatment. Assessment was myalgia versus pleuritic chest pain. The Veteran sought treatment in October 1977 for back pain and he was diagnosed with low back strain. Service treatment records also document he complained of low back pain in January 1978. The October 1978 Report of Medical History form shows that the Veteran reported that he experienced recurrent back pain. An October 1978 separation examination revealed that his spine was evaluated as normal. Following service, the Veteran first reported back pain in conjunction with his September 1993 claim of service connection. However, the evidence then of record did not show a current low back disorder. A review of post service treatment records since that time reveals that an October 2012 VA treatment record is the first medical evidence that shows that the Veteran reported low back pain. A September 2014 VA examination is the first medical evidence of a diagnosis of L4-5, L5-S1 degenerative disc disease and facet arthropathy based on X-rays conducted in April 2014, approximately 35 years after discharge from active military service. Although the Veteran is competent to report having experienced symptoms of low back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative disc disease. The issue is medically complex, as it requires the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the September 2014 VA examiner opined that the current degenerative changes of the lumbar spine are less likely than not caused by or related to the strain in service. The examiner explained that in review of the prior records, the Veteran was seen for an acute and episodic treatment for lumbar strain as there were no ongoing treatment records for a low back condition until 2000 in the clinical records, which is more than 20 years later. It is known medically that degenerative changes can occur with age. The examiner also noted that X-rays in 1996 did not show degenerative changes and there is no current evidence of strain in the clinical examination. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his L4-5, L5-S1 degenerative disc disease and facet arthropathy is related to the in-service back injury, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnosis and etiology of L4-5, L5-S1 degenerative disc disease and facet arthropathy cannot be competently addressed by the Veteran as a lay person based on personal observation, such as, visual observation or by any other senses. The current diagnosis of L4-5, L5-S1 degenerative disc disease and facet arthropathy was based on interpretation of symptoms, and clinical and diagnostic tests, to include an X-ray, which requires medical knowledge. Consequently, the Board gives more probative weight to the September 2014 VA medical opinion. 3. Entitlement to service connection for hepatitis C. The Veteran contends that his current diagnosis of hepatitis C is related to active military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service medical records are negative for complaints of or treatment for symptoms associated with hepatitis C and the evidence does not otherwise show that he was diagnosed with or treated for hepatitis C at any time during his active military service. Furthermore, the Veteran has not indicated, and the service records do not show, that he was exposed to any risk factors for hepatitis C during service. The first medical evidence of a diagnosis of hepatitis C is in an October 2012 VA treatment record, approximately 33 years after the Veteran was discharged from service. A July 2013 VA treatment record documents that the Veteran reported that he was hepatitis C antibody test positive since 1996, approximately 17 years after the Veteran was discharged from service. Such a lapse in time between separation from service and the earliest documentation of a current disability is a factor that weighs against the service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no medical evidence of record that indicates the Veteran’s current hepatitis C is related to active military service. Furthermore, the only evidence in the record that suggests the Veteran’s hepatitis C is related to military service is based on the Veteran’s own lay statements. While the Veteran believes his hepatitis C is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnosis and etiology of hepatitis C cannot be competently addressed by the Veteran as a lay person based on personal observation, such as, visual observation or by any other senses. The current diagnosis of hepatitis C was based on a hepatitis C antibody test, which requires medical knowledge. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder. With respect to the Veteran’s service connection claim for a left shoulder disorder, he was not provided with a VA examination or medical opinion. The Veteran contends that his left shoulder disorder began in 1977 during active military service. VA treatment records document decreased range of motion in abduction, flexion, and extension of the left shoulder and provide a diagnosis of muscle spasm. A review of the Veteran’s service treatment records reveals that the Veteran did not complain of or receive treatment for a left shoulder disorder during active military service; however, in the October 1978 Report of Medical History form, the Veteran indicated that he experienced swollen or painful joints. Accordingly, the Veteran should be provided with a VA examination and medical opinion for his left shoulder service connection claim. 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD and depressive disorder is remanded. Regarding the Veteran’s service connection claim for a psychiatric disorder to include PTSD and depressive disorder, VA treatment records show that the Veteran has a current diagnosis of depressive disorder. Although the Veteran’s VA treatment records do not document a diagnosis of PTSD, an October 2017 VA treatment record reflects that the Veteran had a positive PTSD screen. Furthermore, his service treatment records reflect that the Veteran reported in the October 1978 Report of Medical History form of having nervous trouble and depression or excess worry. In light of the foregoing, the Veteran should be provided a VA examination to determine if his current psychiatric disorder(s) had its onset in service or is otherwise related to active military service. 3. Entitlement to a compensable disability rating for service-connected residuals of fracture of the right left, distal tibia is remanded. Regarding the Veteran’s increased rating claim for service-connected residuals of fracture of the right distal tibia, the Veteran was provided with a VA examination in February 2014. The examiner determined that the Veteran did not have other tibia and/or fibular impairment; however, she documented that on the Veteran’s right lower shin there was a prominent area that he reported pain at times, but not always when assessed. The examiner observed that this area was raised and measured 6 cm by 1.5 cm, but there were no signs or symptoms of infection present. The examiner did not indicate whether there was malunion of the tibia and fibula or nonunion with loose motion, requiring a brace of the tibia and fibula. Furthermore, the U.S. Court of Appeals for Veterans Claims (Court) has held that the 38 C.F.R. § 4.59 requires VA examination to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Court has also recently held that that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why she could not do so.” Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the February 2015 VA examination report does not include the information necessary as required by Correia and Sharp. Based on the foregoing, the Veteran must be provided with a new VA examination to determine the current nature and severity of his service-connected residuals of fracture of the right leg, distal tibia that includes the information required in Correia and Sharp. The matter is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination for his service connection claim for a left shoulder disorder. The entire electronic claims file must be made available to the medical specialist for review. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, identify any and all disorders of the left shoulder (to include any left shoulder disorders documented in the claims file during the appeal period) and provide an opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any current left shoulder disorder had its onset in service or is otherwise related to active military service. The examiner must provide a rationale for all conclusions based on the medical and lay evidence of record. The examiner is advised that the Veteran is competent to report his symptoms and history. Thus, competent lay assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 2. Arrange for the Veteran to undergo a VA psychiatric examination with respect to his service connection claim for an acquired psychiatric disorder. The electronic claims file must be made available to the examiner for review, and the examiner must state that the records were reviewed. The examiner must administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for PTSD, anxiety, depression, and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the electronic claims file, conducting the clinical evaluation of the Veteran, and with consideration of the Veteran’s statements, the examiner must identify all psychiatric disorders found on examination or documented in the claims file (at any time during the appeal period). The examiner must provide an opinion as to whether any diagnosed psychiatric disorder at least as likely as not (i.e., a 50 percent or greater probability) had its onset in service or is otherwise related to the Veteran’s active military service. The examiner must provide a complete rationale for all opinions expressed. As part of his or her rationale, the examiner must address the October 1978 separation examination where the Veteran reported experiencing nervous trouble and depression or excessive worry. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his residuals of fracture of the distal tibia of the right leg. The electronic claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right leg and knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also address whether there is evidence of impairment of the right tibia and fibula to include malunion or nonunion. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). L. B. Cryan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel