Citation Nr: 18157374 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-27 946 DATE: December 12, 2018 ORDER The request to reopen the claim for service connection for a back disability is granted. The request to reopen the claim for service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), generalized anxiety disorder and depressive disorder NOS is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), generalized anxiety disorder and depressive disorder NOS is remanded. FINDINGS OF FACT 1. A December 2006 rating decision denied service connection for a back disability and an acquired psychiatric disability. The Veteran did not appeal the decision and therefore, the decision became final. 2. The evidence associated with the claim file after the December 2006 rating decision is probative and relevant concerning service connection for a back disability. 3. The evidence associated with the claim file after the December 2006 rating decision is probative and relevant concerning service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The December 2006 rating decision is final as to the denial of service connection for a back disability and an acquired psychiatric disability. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim for service connection for a back disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence sufficient to reopen the claim for service connection for chronic low back pain has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2002 to February 2003, with additional periods of National Guard service. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a November 2018 Travel Board hearing. New and Material A prior final decision will be reopened if new and material evidence is presented or secured with respect to a claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means 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 issue on appeal, and must raise a reasonable possibility of substantiating the claim. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether the evidence is new and material the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). 1. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a back disability The Veteran asserts that he is entitled to service connection for a back disability, which was previously denied in a December 2006 rating decision. The Board concludes new and material evidence has been submitted and reopening is therefore warranted. The December 2006 rating decision denied service connection for a back disability on the basis that it was not shown to be related to service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered that pertains to the issue on appeal includes service medical records and March 2006 to November 2006 VA treatment records. Since the December 2006 rating decision, the Veteran submitted an August 2014 statement that he injured his back falling off a ladder in Kuwait and jumping off a truck during National Guard annual training in 2005. The Veteran also submitted an August 2014 buddy statement from three fellow servicemembers that they witnessed his 2005 injury. The Board finds that this evidence pertains to the unestablished fact of the nexus between the Veteran’s disability and active duty. It therefore raises a reasonable possibility of substantiating the Veteran’s entitlement to service connection and constitutes new and material evidence. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection for low back pain is warranted. 2. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), generalized anxiety disorder and depressive disorder NOS The Veteran asserts that he is entitled to service connection for an acquired psychiatric disability. A December 2006 rating decision denied service connection for anxiety and depressive disorder. The Board concludes new and material evidence has been submitted and reopening is therefore warranted. The December 2006 rating decision denied service connection for an acquired psychiatric disability on the basis that the Veteran’s depressive disorder and anxiety disorder were not shown to be related to service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered that pertains to the issue on appeal includes service medical records and March 2006 to November 2006 VA treatment records. Since the December 2006 rating decision, the Veteran submitted an August 2014 stressor statement describing an instance of sexual harassment in service, along with an August 2014 buddy statement signed by three fellow servicemembers stating that they witnessed the incident. The Veteran also testified at his November 2018 Travel Board hearing that nightmares began immediately after his return from Kuwait and he began isolating himself, but did not seek treatment until 1-2 years after service. The Board finds that this evidence pertains to the unestablished fact of the nexus between the Veteran’s disability and active duty. It therefore raises a reasonable possibility of substantiating the Veteran’s entitlement to service connection and constitutes new and material evidence. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection for low back pain is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that his right shoulder disability is related to his service-connected left shoulder disability. The November 2015 VA shoulder examination indicated that the Veteran has range of motion limitations in his right shoulder but neither diagnosed a right shoulder disability nor offered an etiological opinion. The Board notes August 2012 VA treatment records indicating that the Veteran was diagnosed with chronic right shoulder pain, degenerative joint disease and tendinosis based on MRI results. A new examination regarding the nature and etiology of the Veteran’s right shoulder disability is therefore required. 2. Entitlement to service connection for a back disability is remanded. The Veteran contends that his back was injured falling off a ladder in Kuwait and during his 2005 National Guard annual training. The Board notes September 2005 VA treatment records noting the fall from the ladder and also low back pain beginning several weeks prior at National Guard annual training. The Board’s review indicates that while National Guard personnel records have been associated with the file, those records do not contain orders for the 2005 annual training or other periods of active duty for training, though the Veteran’s November 2006 National Guard Annual Statement shows that he accrued 22 active duty points from October 2004 to October 2005 and 19 active duty points from October 2005 to October 2006. In addition, the Board’s review indicates that medical records from that period of service have not yet been associated with the file. Remand is therefore required so that the outstanding service records may be obtained. A November 2015 VA examination found that the Veteran’s back disability was not due to service as service treatment records were silent for back complaints. An opinion based on the absence of a disability in service, as this one, is inadequate and therefore a new opinion is needed. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 3. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), generalized anxiety disorder and depressive disorder NOS is remanded. A July 2014 VA examination found that the Veteran did not meet the criteria for PTSD but diagnosed anxiety disorder. The examiner opined that the Veteran’s psychiatric disability was not related to service as he did not seek treatment until 2007, 4 years after discharge and no temporal relationship was established between his psychiatric disability and his service. However, September 2005 VA treatment records contain positive depression and military sexual trauma (MST) screenings and notes symptoms of increased irritability, isolation and avoiding crowds. October 2006 VA treatment records note nightmares about a sexual advance in service and a positive PTSD screen. The Board therefore finds the July 2014 examination to be inadequate as it is based on an inaccurate medical history. Further, the examiner’s opinion is inadequate as it is based on the absence of a disability in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Remand for a new examination is therefore required. The matters are REMANDED for the following action: 1. Verify all active duty for training and inactive duty training dates for service in the Puerto Rico National Guard from January 2005 to December 2005. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s complete service treatment records, to include documents pertaining to his service in the Puerto Rico National Guard from 2003 to 2015. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran’s VA treatment records for the period from November 2016 to the Present. 4. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current right shoulder disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right shoulder disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s service-connected left shoulder. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 5. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current back disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current back disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding his claimed in-service injuries and the onset and persistence of his symptoms. Attention is requested to the September 2005 VA treatment records noting an injury at National Guard annual training. 6. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current acquired psychiatric disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current acquired psychiatric disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 7. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel