Citation Nr: 18151070 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-13 223 DATE: November 16, 2018 ORDER Entitlement to service connection for cervical spine degenerative disc disease is denied. The previously denied claim for entitlement to service connection for Chiari Malformation is not reopened. REMANDED Entitlement to service connection for enlarged heart is remanded. Entitlement to service connection for thoracolumbar spine degenerative disc disease is remanded. Entitlement to service connection for an acquired psychiatric disorder (claimed as PTSD) is remanded. FINDINGS OF FACT 1. At no time during the pendency of the appeal has the Veteran had a diagnosis of cervical spine degenerative disc disease. 2. In an unappealed April 2006 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied reopening the claim for entitlement to service connection for Chiari Malformation. 3. Since the April 2006 rating decision, VA has received no evidence that is both new and sufficient to raise a reasonable possibility of substantiating the Veteran’s claim for service connection for Chiari Malformation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine degenerative disc disease have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 2. The April 2006 rating decision denying the petition to reopen the service connection claim for Chiari Malfunction became final. 38 U.S.C. 7105 (2012); 38 C.F.R. §§ 20.302 (2017). 3. New and material evidence has not been received, and thus the criteria for reopening the claim to service connection for Chiari Malformation have not been met. 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from January 1985 to August 1997. 1. Entitlement to service connection for cervical spine degenerative disc disease is denied. The Veteran sought service connection for a cervical spine disability in May 2012. The threshold requirement for service connection, however, is competent medical evidence of the existence of the claimed disability at some point during the pendency of the claim, including during a Veteran’s appeal. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A review of the record shows that in January 1986, while in service, the Veteran was involved in a motor vehicle accident in which he suffered multiple minor contusions, and subsequent to which he complained of neck and back pain. His outpatient treatment over the succeeding days consisted of rest in quarters, pain medication, and hot soaks. He was instructed to return to the clinic if his condition did not improve. No return was noted after two days. In May 1986 the Veteran was seen in clinic for back pain diagnosed as musculoskeletal strain in the thoracic area, with tenderness between the shoulder blades and no radiation of pain. The Board does not note any indication in the Veteran’s service treatment records (STRs) of additional incidents or complaints involving the cervical spine, and the Veteran’s post-service VA and private medical records are likewise devoid of any diagnosis of chronic cervical spine problems or degenerative disc disease (DDD). The Board notes no diagnosis of cervical spine DDD, or any other cervical spine disorder, at any point during the pendency of the Veteran’s claim, and accordingly finds that service connection for cervical spine DDD is not warranted. Notably, in the Veteran’s May 2012 informal claim, he requested to file a claim for service connection for “degenerative disc disease,” without further information. The RO interpreted this as a claim for service connection for degenerative disc disease of the cervical spine and thoracolumbar spine. The Veteran’s thoracolumbar spine claim is addressed in the remand section below; however, as the Veteran is not shown to have a cervical spine disability and he has not presented any argument or evidence in this regard, the claim for service connection for cervical spine DDD is denied. 2. The previously denied claim for entitlement to service connection for Chiari Malformation is not reopened. In order to reopen a claim that has been previously considered and denied in a final decision, the claimant must present, or VA must otherwise have received, new and material evidence. 38 U.S.C. § 5108. New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 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). 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 VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. While in service, the Veteran was diagnosed with Chiari Malformation, a congenital defect in the structure of the brain. The Veteran applied for service connection for Chiari Malformation and associated symptoms in October 2000. In November 2000, a RO denied the claim, noting that Chiari Malformation was a congenital defect and thus not recognized under VA law as a disability capable of service connection. 38 C.F.R. § 303(c). The Veteran applied to reopen his claim in October 2005; this was denied in April 2006, for a lack of new and material evidence necessary to reopen a claim. The Veteran applied again in January 2011, and in August 2011. His claim to reopen was again denied for lack of new and material evidence. The Veteran appealed. The Board has reviewed the claims file carefully, and finds that the Veteran has not submitted new and material evidence concerning Chiari Malformation. The Veteran’s post-service VA and private medical records contain no evidence regarding Chiari Malformation or the associated symptoms for which the Veteran was previously denied service connection, beyond noting the presence of symptoms in service. Evidence of in-service symptomatology was before the agency and considered when the claim was previously denied. The new evidence, like the old evidence, fails to establish the presence of a service-connectable disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade, 24 Vet. App. at 117. Thus, although this evidence is new, in that it was not previously before VA adjudicators, it is not material. The additional evidence is redundant in nature and does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the Board finds that reopening the claim for Chiari Malformation is not warranted. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for enlarged heart is remanded. The Veteran sought service connection for an enlarged heart in May 2012. He was afforded a VA heart examination in August 2013. The examiner noted he had reviewed the claims file as well as the Veteran’s VA medical records. He provided excerpts of the salient in-service and post-service medical records pertaining to the Veteran’s heart, including clinical examination records and testing, as well as discussion of the significance of those records. In his medical opinion regarding service connection, the examiner noted there was no objective evidence for a current cardiac condition, nor for a chronic cardiac condition onset during or within 2 years of discharge; that all the Veteran’s testing had failed to find evidence of a heart condition, and that the reference to cardiomegaly in the records was based on an examination that showed the heart at the “upper limits of normal,” in other words, actually not enlarged. The examiner pointed out that the other evaluations of the Veteran’s heart—including echocardiogram, stress thallium, and X-rays—found no evidence for a heart condition. The Board has reviewed the Veteran’s claims file and notes no omission in the examiner’s review of records salient to the Veteran’s heart claim. The Veteran’s attorney, however, has identified an apparently private medical record, dated July 12, 2012, containing a diagnosis of cardiomegaly, that the Board does not locate in the Veteran’s claims file. As VA is obligated to try to obtain relevant private medical records adequately identified by the Veteran, 38 U.S.C. § 5103A(b) (2012), the Board will remand to obtain this document and any other relevant documents not now associated with the claims file, and for an addendum medical opinion. 2. Entitlement to service connection for thoracolumbar spine DDD is remanded. The Veteran applied for service connection for his lumbar spine in May 2012. The Veteran’s STRs reflect two in-service events that resulted in treatment for lower back pain. Following the January 1986 motor vehicle accident mentioned above, the Veteran presented at clinic with a complaint of back and neck pain, which resulted in a diagnosis of multiple minor contusions, for which he was treated with rest in quarters for 24 hours and pain medication, and for which he returned to clinic two days later but not thereafter. A March 1995 medical record notes the Veteran’s presentation in clinic after two weeks of lower back pain initiated when he fell down a flight of stairs. His treatment was 24 hours of rest in quarters, pain medication and back exercises. In early May 1995, the Veteran returned to clinic following a gradual and substantial increase in pain after a PT test. Mechanical low back pain was diagnosed and he was again prescribed 24 hours of rest in quarters, pain medication and back exercises, and told to return to clinic if the symptoms worsened. The STRs contain no record of a return to clinic, and neither the Veteran’s January 1997 report of medical history nor his separation examination (undated but indicating 12.5 years of military service) indicate a problem with his back or spine. His post-service VA medical records, however, show that he suffers from chronic lower back pain and has a diagnosis of lumbar DDD. The Veteran underwent an in-person VA thoracolumbar spine examination in August 2013. The examiner noted that he had reviewed the Veteran’s claims file and his VA medical records, and excerpted relevant STRs and relevant VA medical records. He noted that the Veteran’s DDD was diagnosed in February 2013 with X-ray evidence. He provided a diagnosis of lower spine DDD but opined that the disability was less likely as not incurred in or caused by the Veteran’s military service. His rationale was that there was no objective evidence that a chronic lumbar spine condition began during service or within two years of discharge; he described the Veteran’s March and May 1995 episodes of pain as transient, and noted that the Veteran’s separation report of medical condition and examination were silent for a back condition. He asserted that the Veteran’s lumbar DDD was most likely related to post-service events, including the aging process and the Veteran’s obesity. The Board notes several problems with the August 2013 back examination and opinion. The examiner did not comment on the Veteran’s January 1986 motor vehicle accident, for which he also received treatment for lumbar pain. Having recorded the Veteran’s report of an incapacitating episode of back pain in 2002, which required hospital emergency room treatment including morphine, the examiner did not discuss this event or the Veteran’s other reported history, or comment whether the 2002 episode might suggest the existence of DDD at that time, or suggest any bridge between DDD and events in service. Further, the examiner’s assertion that the Veteran’s DDD was most likely the result of events after service is not significantly explained, and appears to imply that if a disability is not present in service, it is not service-connected. Yet, service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). A thorough medical examination is one that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate rationale must be provided for any medical opinion rendered; a conclusory, contradictory or incomplete analysis is not adequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The examination here did not account for one potentially significant event, and the opinion was incomplete. In light of the above deficiencies, the Board will remand for another lower back examination and medical opinion. 3. Entitlement to service connection for depressive disorder NOS (claimed as PTSD) is remanded. The Veteran sought service connection for PTSD in May 2012. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). Service connection for PTSD requires diagnosis of the condition in accordance with the relevant version of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM). Id. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the Veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the Veteran “engaged in combat with the enemy.” Id. If VA determines that a Veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the Veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the Veteran’s service.” Id. If, however, VA determines that the Veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the Veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the Veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The Board notes the absence in the record of characteristic awards or other evidence sufficient to verify the Veteran’s participation in combat. Accordingly, his reported stressors are subject to verification; and the Board notes no such evidence in the claims file. Moreover, the Board notes that the Veteran’s descriptions of his stressors, as noted in the context of his August 2013 VA PTSD examination and elsewhere in his VA medical records, were general in nature. For example, he reported that while he was stationed in Somalia, other soldiers were shooting at civilians and killing children, that he came under fire from civilians, that four friends had been killed, that some soldiers had self-inflicted wounds and that one soldier had committed suicide in his presence. These incidents may need further definition to facilitate corroboration. The Veteran, through his attorney, submitted an affidavit describing more specifically the Veteran’s in-service stressors and their psychological aftermath, accompanied by a psychological evaluation endorsing a disability of PTSD. The Board notes, however, that irrespective of this evaluation, the Veteran’s stressors still require corroboration. Thus, the Board will remand to enable the Veteran to provide more specific information, and to facilitate corroboration. See Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). The Board notes further that the August 2013 VA PTSD examination report was internally inconsistent, with the examiner indicating that the Veteran had not experienced a traumatic event, but then recording the Veteran’s reactions to trauma. This may be understood in the context of the examiner’s objection to the Veteran’s report of the timing of his trauma in Somalia as well as his test-based evaluation that the Veteran’s report of symptoms indicated malingering. The Board notes that the Veteran’s reference to the timing of his presence in Somalia was general and not disqualifying as to his reported experiences there; and his reported stressors should be clarified through efforts at investigation and corroboration. The examiner’s medical opinion was summary, and the Board finds it inadequate for rating purposes. Accordingly, on remand a new PTSD examination and opinion should be provided. The matters are REMANDED for the following actions: 1. Undertake appropriate efforts to obtain any relevant outstanding VA or private medical records, to specifically include the July 12, 2012 medical record identified by the Veteran’s attorney as including a diagnosis of cardiomegaly, and any additional records the Veteran may wish to submit; any available hospital reports concerning the Veteran’s 2002 emergency room visit for a back problem; and the Veteran’s Social Security Administration medical records (if any), and associate them with the claims file. 2. After the above records development is completed, arrange to obtain an addendum medical opinion concerning the Veteran’s claim for service connection for enlarged heart from the physician who conducted the Veteran’s August 2013 VA heart examination, or another qualified examiner if the initial examiner is not available. The Veteran’s claims file must be provided to the examiner for review. In light of the entire claims file, to include any additional relevant medical records provided by the Veteran or otherwise associated with the claims file, the examiner should offer comments and an addendum opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran has a diagnosed disability of enlarged heart or has had one at any time since May 2012, and if so, whether that disability began during service, or is causally or etiologically due to symptoms experienced during service. If the examiner determines that an in-person examination is necessary in order to furnish the requested opinion, one should be scheduled. The examiner is advised that the Veteran is competent to report history and symptoms and that those reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. 3. Thereafter, afford the Veteran a new VA examination to determine the nature and etiology of the Veteran’s lumbar spine DDD. The Veteran’s claims file must be provided to the examiner for review. The examiner must obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination must be noted in the report of the evaluation. Any testing deemed necessary must be performed. In light of the entire claims file, to include any additional relevant medical records provided by the Veteran or otherwise associated with the claims file, the examiner should offer comments and an opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s diagnosed lumbar spine DDD began during service, or is causally or etiologically due to symptoms experienced during service. The examiner is advised that the Veteran is competent to report history and symptoms and that those reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. 4. Concurrently with the above, provide the Veteran a VA Form 21-0781, “Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)” and seek to elicit his completion and return of that form. Upon return of the completed form, undertake all appropriate efforts to verify the Veteran’s claimed stressors, to include seeking corroboration through the Joint Services Records Research Center (JSRRC). After receipt of the JSRRC report and completion of any other verification efforts, schedule the Veteran for a new PTSD examination by a qualified examiner. The examiner must be provided with a summary of any verified in-service stressors and must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered in determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor or if there is a stressor related to fear of hostile military or terrorist activity consistent with the Veteran’s service, the examiner must determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is appropriate, the examiner must then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. The examiner should offer comments and an opinion addressing whether PTSD, if present, and any other diagnosed psychological disorder, to include depressive disorder, NOS, is causally or etiologically related to the Veteran’s military service. The comments and opinion should consider the Veteran’s submitted affidavit and private psychological evaluation, both received in September 2016. The examiner is advised that the Veteran is competent to report history and symptoms and that those reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel