Citation Nr: 18156233 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-19 371A DATE: December 7, 2018 ORDER The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, to include as secondary to the Veteran’s service-connected hysterectomy, is granted; the appeal is granted to this extent only. REMANDED The claim of entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, degenerative joint disease, and spondolisthesis, including as secondary to the veteran’s service-connected left knee degenerative joint disease, is remanded. The claim of entitlement to service connection for a left foot disability, to include left talonavicular degenerative joint disease, to include as secondary to the Veteran's service-connected left knee degenerative joint disease is remanded. The claim of entitlement to service connection for a right foot disability, to include hammertoes, is remanded. The claim of entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, to include as secondary to the Veteran's service-connected hysterectomy, is remanded. FINDINGS OF FACT 1. In January 1999, the Regional Office (RO) denied service connection for the Veteran’s major depressive disorder. The Veteran filed a notice of disagreement in February 1999 and the RO issued a statement of the case in May 1999. The Veteran timely perfected an appeal to the Board of Veterans’ Appeals (Board). 2. In August 2004, the Board affirmed the January 1999 rating decision, denying the Veteran’s claim for entitlement to service connection for major depressive disorder, finding that her depression was not proximately due to, the result of, or aggravated by a service-connected disease or disability. 3. The Veteran did not appeal the August 2004 Board decision, and as such, this decision became final. 4. Evidence received since the August 2004 Board decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The August 2004 Board decision denying the claim of service connection to an acquired psychiatric disability is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1100 (2018). 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric 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 duty service with the United States Army from June 1977 to April 1980. The Veteran was discharged under honorable conditions. The Veteran served during Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran’s claim for major depressive disorder has been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a service connection claim for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the Agency of Original Jurisdiction has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-240 (1995). The Veteran requested a hearing before the Board, via teleconference, in her May 2016 VA Form 9. A review of the record finds, however, that the Veteran cancelled her hearing. As such, the Board finds that the Veteran has waived her right to a hearing and this case may proceed considering the evidence of record. The Board notes that there were additional medical records received after the last Statement of the Case in May 2016. The relevant evidence received, however, was cumulative evidence of the Veteran seeking treatment for a psychiatric disability. Thus, a waiver is not necessary, and this matter is properly before the Board. The Veteran has submitted a Notice of Disagreement in response to an August 2018 Rating Decision, denying an increased disability rating for the Veteran’s service-connected left knee degenerative joint disease and service connection for a right knee disability secondary to the Veteran’s service-connected left knee degenerative joint disease. As there is no evidence that the RO has not timely addressed these issues, at this time, the Board declines to take jurisdiction of these claims. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a) (2018). The Veteran has not raised any specific, enumerated, issues with the duty to notify or duty to assist with regard to the issue of new and material evidence. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, to include as secondary to her service-connected hysterectomy Service connection was previously denied for major depressive disorder in a January 1999 rating decision. The Veteran was informed of that decision in February 1999, including her right to appeal. The Veteran submitted a timely notice of disagreement in February 1999, within one year of notification of the decision. A May 1999 statement of the case continued to deny service connection for major depressive disorder. The Veteran filed a timely substantive appeal, VA Form 9, in October 1999, and in August 2004, the Board denied the Veteran’s claim, based on a conclusion that there was no causal nexus between the Veteran’s major depressive disorder and the Veteran’s service-connected hysterectomy. The Veteran did not appeal the August 2004 Board decision to the United States Court of Appeals for Veterans Claims (Court). Thus, the decision became final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). Despite the finality of a prior decision, 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) (2018). The Court has held that, 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). Further, the Court has also held that in order to reopen a finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). 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) (2018). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Since the August 2004 Board decision, new evidence has been received that is material to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability. Specifically, the Board has received a private psychiatric evaluation, dated August 2015, in which the examiner opined that the Veteran’s major depressive disorder is clearly and directly due to the Veteran’s experience with medical service while in the Army. The Board finds that the evidence, as outlined above, raises a reasonable possibility of substantiating the Veteran’s claim. The Veteran’s claim was previously denied because there was no evidence of a causal link between the Veteran’s acquired psychiatric disability and her service-connected hysterectomy. This evidence demonstrates that the possibility exists that a causal relationship may exist between the Veteran’s acquired psychiatric disability and either an in-service event, injury, or illness, or her service-connected hysterectomy. As such, the Board finds that the evidence is new and material for purposes of reopening the claim. REASONS FOR REMAND The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, degenerative joint disease, and spondolisthesis, including as secondary to the Veteran’s service-connected left knee degenerative joint disease, is remanded. The Veteran received a VA examination to determine the etiology of her lumbar spine disability in February 2014. The Veteran reported that her back began to hurt while crawling during basic training. The VA examiner opined that her back injury was less likely as not caused by or the result of service. The examiner supported his assertion by noting that the Veteran’s service treatment records did not note an injury during service and that the evidence of record did not demonstrate chronicity subsequent to service. The Board finds that this VA examination is inadequate to adjudicate this claim. The VA examiner supported his opinion, in part, by stating that there was no injury noted during service. While the objective evidence of record does not demonstrate treatment for the Veteran’s lumbar spine while in-service, the VA examiner did not specifically address the Veteran’s subjective statements regarding an in-service incident involving her lumbar spine. The Veteran is competent to testify as to her symptomatology, including the onset thereof. See Barr v. Nicholson, 21 Vet. App. 303, 307-308 (2007). To be considered adequate, the VA examiner must consider all evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2007). In light of the above, the Veteran should be afforded a new VA examination upon remand. The Board further notes that the Veteran has received medical treatment at a private neurosurgery clinic, as specified in January 2017 private treatment notes. VA’s duty to assist includes reasonable efforts to obtain records not in the custody of a Federal agency. 38 C.F.R. § 3.159(c)(1) (2018). As such, on remand, the Agency of Original Jurisdiction should make reasonable efforts to obtain these additional treatment records. The Board notes that the duty to assist is not a one-way street, however, and it is the ultimately the responsibility of the Veteran to provide the medical evidence to VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Entitlement to service connection for a left foot disability, to include left talonavicular degenerative joint disease, to include as secondary to the Veteran's service-connected left knee degenerative joint disease is remanded. The Veteran received a VA examination to determine the etiology of her left foot disability in February 2014. The Veteran was found to have degenerative joint disease in his left talonavicular joint. The Veteran reported that she believed that her left foot disability was due to her left knee disability. The VA examiner stated that it was less likely as not that the Veteran’s left talonavicular joint degenerative joint disease was caused by her left knee degenerative joint disease. The examiner’s rationale was that degenerative joint disease is not a systemic disease and does not spread to other joints. The examiner opined that it was more likely than not that the Veteran’s left foot disability was the result of a natural progression and other factors, as opposed to military service. The examiner noted that the left foot injury in 1977 was accompanied with a negative x-ray. The Board finds that this examination is inadequate. The VA examiner did not apply the correct legal standard required for secondary service connection for the Veteran’s left foot disability. Specifically, the VA examiner did not address whether the Veteran’s left knee degenerative joint disease aggravated the Veteran’s left foot disability. 38 C.F.R. § 3.310 (2018). As such, the Board finds that the Veteran should receive a new VA examination upon remand. The Board also notes that a review of the evidence reveals that the Veteran received treatment from Dr. B. in Charlotte for her left foot. See VA Treatment Records, dated February 1988. Upon review of the record, these treatment records have not been associated with the file. The Agency of Original Jurisdiction, upon remand, should make reasonable efforts to obtain these records, with all necessary assistance from the Veteran. See 38 C.F.R. § 3.159(c)(1) (2018); see also Wood, 1 Vet. App. at 193. 3. Entitlement to service connection for a right foot disability, to include hammertoes, is remanded. The Veteran received a VA examination to determine the etiology of her right foot disability in February 2014. The VA examiner noted that the Veteran was diagnosed with hammertoes of phalanges two, three, and four on the right foot. The examiner did not provide a specific etiological opinion of the Veteran’s right foot disability. Rather, the VA examiner noted that the Veteran’s service treatment records were silent as to a right foot condition. The VA examiner further noted that the Veteran denied any history of a right foot condition both at prior appointments and during the VA examination. The Board finds that this examination is inadequate for the purposes of adjudicating this claim. First, the examiner did not provide an actual causal opinion regarding the Veteran’s right foot disability. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). Moreover, the VA examiner stated that the Veteran’s service treatment records were silent to any right foot condition. In this regard, however, the VA examiner relied upon an error of fact in arriving at his opinion. A July 1977 service treatment record reported that the Veteran had multiple foot complaints; specifically, burning on the bottom of the ankles. Both of the Veteran’s ankles were found to be warm to the touch and swollen. As such, the VA examiner did not consider all of the evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295. In light of the above, the Veteran should be afforded a new VA examination upon remand. 4. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, to include as secondary to the Veteran's service-connected hysterectomy is remanded. The Veteran had VA examinations to address the etiology of her acquired psychiatric disability in September 1998 and March 2002. In September 1998, the VA examiner diagnosed the Veteran with major depression with a singular episode. The VA examiner opined that the Veteran’s hysterectomy was not the causal event to her present major depressive episode. The VA examiner did not provide a thorough rationale, but provided merely a conclusory statement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). As such, this is not adequate for adjudication of this issue. In March 2002, the Veteran received a second VA examination to determine the etiology of her acquired psychiatric disability. The VA examiner diagnosed the Veteran with major depression, in partial remission, and mixed personality traits. The VA examiner opined that it was “not likely” that the Veteran’s major depression was directly related to her hysterectomy in the past, noting that she had stressors not related to her hysterectomy in her past. In an addendum opinion in January 2003, the VA examiner stated that her present diagnosis was not likely directly related to her hysterectomy and it could not have been aggravated by such a procedure. The Board finds that this examination, also, is inadequate to adjudicate this claim. Notably, the VA examiner utilized the incorrect legal standard regarding causation; specifically, “not likely” as opposed to either as likely as not or not as likely as not. 38 C.F.R. § 3.310 (2018). Moreover, the VA examiner provided only a conclusory statement regarding whether the Veteran’s hysterectomy aggravated her major depressive disorder. See Stefl v. Nicholson, 21 Vet. App. at 120. The Veteran received a private etiological opinion in August 2015. The private examiner stated that one could make the case that the Veteran’s hysterectomy and in-service misdiagnosis could create a threat to physical integrity in terms of posttraumatic stress disorder. She further opined that the Veteran’s major depressive disorder with psychotic features was clearly directly due to her experiences with medical services while in the Army. The examiner noted that it was more than at least as likely as not that the Veteran’s major depressive disorder was service connected. However, the VA examiner did not review the entirety of the Veteran’s claims file, and was unable to make an opinion based upon the evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295. As such, the Board finds that the private examiner’s opinion is inadequate for the purposes of adjudicating this claim. In light of the above, the Board finds that the Veteran should receive a new VA examination upon remand. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all private treatment records, notably those identified above, with all necessary assistance from the Veteran. The Veteran is reminded that the duty to assist is not a one-way street and that she is ultimately responsible for the Board receiving evidence to support her claim. See Wood, 1 Vet. App. at 193. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 2. Schedule the Veteran for an examination to determine the nature and etiology of her lumbar spine disability, left foot disability, and right foot disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) Identify all lumbar spine disabilities currently affecting the Veteran. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current lumbar spine disability is causally or etiologically related to the Veteran’s military service, including asserted boot camp training exercises. (c.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current lumbar spine disability is either caused by or permanently aggravated by the Veteran’s service-connected left knee degenerative joint disease. (d.) Identify all left foot disabilities currently affecting the Veteran. (e.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current left foot disability is causally or etiologically related to the Veteran’s military service, including the documented in-service left foot pain and ankle swelling. (f.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current left foot disability is either caused by or permanently aggravated by the Veteran’s service-connected left knee degenerative joint disease. (g.) Identify all right foot disabilities currently affecting the Veteran. (h.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right foot disability is causally or etiologically related to the Veteran’s military service, including the documented in-service right foot pain and ankle swelling. (i.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current right foot disability is either caused by or permanently aggravated by the Veteran’s service-connected left knee degenerative joint disease. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 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 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. 3. Schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) Identify all acquired psychiatric disabilities currently affecting the Veteran. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disability is causally or etiologically related to the Veteran’s military service. (c.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current acquired psychiatric disability is either caused by or permanently aggravated by the Veteran’s service-connected hysterectomy, to include the associated symptomatology and treatment thereof. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 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 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. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel