Citation Nr: 18150207 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-42 719 DATE: November 14, 2018 ORDER New and material evidence having not been received, reopening the claim of entitlement to service connection for a back disability is denied. New and material evidence having not been received, reopening the claim of entitlement to service connection for a neck disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, and panic disorder with agoraphobia, is remanded. FINDING OF FACT 1. An unappealed April 2013 Board decision denied entitlement to service-connection for a low back disability. 2. The evidence received since the April 2013 Board decision is cumulative and redundant of the evidence previously of record, and it does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a back disability. 3. An unappealed July 2009 rating decision denied entitlement to service-connection for a neck sprain. 4. The evidence received since the July 2009 rating decision is cumulative and redundant of the evidence previously of record, and it does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a neck disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a neck disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1978 to June 1980, and a period of active duty for training (ACDUTRA) from March 27, 1977, to August 1, 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In light of the various mental health diagnoses of record, the Board has recharacterized the Veteran’s claim of entitlement to service connection for PTSD as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and panic disorder with agoraphobia pursuant to Clemons v Shinseki, 23 Vet. App. 1 (2009). Claims to Reopen Back Disability In an April 2013 Board decision, the Veteran was denied entitlement to service connection for a low back disability based on findings that the Veteran did not have a back disability that manifested during a period of active service or ACDUTRA, that he did not have a back disability that was otherwise related to service, and that lumbar spine arthritis was not manifest to a compensable degree within a year of the Veteran’s separation from service. The Veteran did not appeal that decision. The additional evidence added to the record includes additional medical evidence, lay statements from the Veteran, and argument provided by the Veteran’s attorney. A review of that evidence shows that the additional evidence added to the record is not new and material. In this regard, the evidence is either cumulative or redundant of the evidence that was previously considered by VA, or is does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a back disability. Specifically, there is no medical evidence that has been added to the record that indicates the Veteran’s back disability is related to his active service, or that he had lumbar spine arthritis that was manifest to a compensable degree within one year of his separation from such service. The Board acknowledges the Veteran’s additional lay statements and the argument from the Veteran’s attorney, in which it is indicated that the Veteran’s back disability is related to his active service. However, the Veteran’s assertions are vague and do not adequately explain why he believes his back disability is related to his service. Further, though credibility of evidence is assumed when determining whether evidence establishes that claims for service connection should be reopened, competency may not be so assumed. Determining the etiology of disabilities such as lumbar spine degenerative disc disease (DDD) requires specialized medical knowledge or training; lay contentions therefore is not competent evidence in that regard, and the Veteran’s contentions alone are not sufficient to reopen his claim. Regardless, such assertions are cumulative or redundant of evidence that was of record at the time of the April 2013 Board decision. Therefore, the evidence added to the record is not new and material. Accordingly, reopening of the claim of entitlement to service connection for a back disability is not warranted. Neck Disability In a July 2009 rating decision, the Veteran was denied entitlement to service connection for a neck sprain based on findings that the Veteran did not have a diagnosis of a neck sprain, and that a neck disability was not incurred in or aggravated by service. The Veteran did not appeal that decision. The additional evidence added to the record includes additional medical evidence, lay statements from the Veteran, and argument provided by the Veteran’s attorney. A review of that evidence shows that the additional evidence added to the record is not new and material. In this regard, the evidence is either cumulative or redundant of the evidence that was previously considered by VA, or is does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a neck disability. Specifically, while additional medical evidence was added to the record, there is no indication from that evidence that the Veteran has a neck disability, let alone one that may be related to his active service. The Board acknowledges the Veteran’s additional lay statements and the argument from the Veteran’s attorney, in which it is indicated that the Veteran has a neck disability that is related to his active service. However, the Veteran’s assertions are cumulative or redundant of evidence that was of record at the time of the July 2009 rating decision. Therefore, the evidence added to the record is not new and material. Accordingly, reopening of the claim of entitlement to service connection for a neck disability is not warranted. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection – Acquired Psychiatric Disability The Veteran asserts that he has an acquired psychiatric disability that is related to his active service. Specifically, the Veteran contends that during basic training, he was trampled by fellow soldiers while exiting a large motor vehicle and that it caused him to become fearful of crowds. Further, the Veteran contends that he was assaulted by drill instructors during basic training. Post-service treatment records show that the Veteran has been diagnosed with major depressive disorder and panic disorder with agoraphobia, as well as suspected PTSD. To date, no VA medical opinion has been obtained with regard to the Veteran’s claimed acquired psychiatric disability. Therefore, the Board finds the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed acquired psychiatric disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate psychologist or psychiatrist to determine the nature and etiology of any current psychiatric disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, or proximate thereto. If the Veteran meets the criteria for a diagnosis of PTSD, the examiner should provide an opinion as to the stressor(s) supporting the diagnosis. Specifically, the examiner should opine as to whether there is sufficient evidence of behavior changes, including substance abuse and depressive behavior, in response to the claimed in-service assault, which would provide the necessary credible supporting evidence of its occurrence. Then, for each psychiatric disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel