Citation Nr: 18159339 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-56 892 DATE: December 18, 2018 ORDER New and material evidence has been received to reopen the Veteran’s service-connection claim for a back condition, now categorized as a thoracolumbar spine condition; the appeal to reopen is granted. New and material evidence has been received to reopen the Veteran’s service-connection claim for a bilateral leg condition; the appeal to reopen is granted. New and material evidence has been received to reopen the Veteran’s service-connection claim for a right knee condition; the appeal to reopen is granted. New and material evidence has been received to reopen the Veteran’s service-connection claim for posttraumatic stress disorder (PTSD), now categorized as an acquired psychiatric disorder, including PTSD, anxiety, and mood disorder; the appeal to reopen is granted. REMANDED Entitlement to service connection for a thoracolumbar spine condition is remanded. Entitlement to service connection for a bilateral leg condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for cephalalgia (headache) is remanded. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety, and mood disorder is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a September 2002 rating decision, the regional office (RO) denied the Veteran’s application to reopen a previously denied service-connection claim for a back condition. The Veteran did not appeal or submit new and material evidence within one year. 2. Evidence received subsequent to the September 2002 rating relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back condition. 3. In a September 2002 rating decision, the RO denied the Veteran’s application to reopen a previously denied service-connection claim for a bilateral leg condition. The Veteran did not appeal or submit new and material evidence within one year. 4. Evidence received subsequent to the September 2002 rating relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral leg condition. 5. In a September 2002 rating decision, the RO denied the Veteran’s application to reopen a previously denied service-connection claim for a right knee condition. The Veteran did not appeal or submit new and material evidence within one year. 6. Evidence received subsequent to the September 2002 rating relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee condition. 7. In a September 2002 rating decision, the RO denied the Veteran’s application to reopen a previously denied service-connection claim for PTSD, now categorized as an acquired psychiatric disorder, including PTSD, anxiety, and mood disorder. The Veteran did not appeal or submit new and material evidence within one year. 8. Evidence received subsequent to the September 2002 rating relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD, now categorized as an acquired psychiatric disorder, including PTSD, anxiety, and mood disorder. CONCLUSIONS OF LAW 1. The September 2002 rating decision that denied the Veteran’s application to reopen his claim of entitlement to service connection for a back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103. 2. The criteria for reopening a previously denied claim of entitlement to service connection for a back condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. The September 2002 rating decision that denied the Veteran’s application to reopen his claim of entitlement to service connection for a bilateral leg condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103. 4. The criteria for reopening a previously denied claim of entitlement to service connection for a bilateral leg condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 5. The September 2002 rating decision that denied the Veteran’s application to reopen his claim of entitlement to service connection for a right knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103. 6. The criteria for reopening a previously denied claim of entitlement to service connection for a right knee condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 7. The September 2002 rating decision that denied the Veteran’s application to reopen his claim of entitlement to PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103. 8. The criteria for reopening a previously denied claim of entitlement to service connection for PTSD have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970. These matters are on appeal from November 2013, August 2014, and July 2015 rating decisions. The Board initially notes that in an April 2015 VA Form 21-526EZ, Application for Disability Compensation, the Veteran filed a service-connection claim for a cervical spine disability. It appears the RO interpreted this claim as part of his pending service-connection claim for a low back disability. See a July 2015 Rating Decision Codesheet (noting prior denials for a back condition, claimed as lumbar, thoracic, and cervical). To date, however, the RO has not adjudicated the Veteran’s service-connection claim for a cervical spine disability. The matter is therefore referred to the RO for appropriate action. As a claim for a lumbar spine condition as well as a claim for a thoracic spine condition involve the same spinal segment, the issue for service connection has been broadened and recharacterized to address the thoracolumbar spine. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has also recharacterized the Veteran’s application to reopen a previously denied claim for PTSD, and his claim for entitlement to service connection for anxiety disorder more broadly as a claim for any acquired psychiatric disability, to include PTSD, anxiety disorder, and mood disorder. The anxiety and mood disorder claim is based upon the same factual basis and symptoms as his original claim for service connection for PTSD, which the RO denied on the merits in January 2002, and did not reopen in September 2002. As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Moreover, since the Veteran’s claim for anxiety and mood disorders is based on the same factual history as his claim for service connection for PTSD, the claim for an acquired psychiatric disability will include consideration of PTSD, anxiety, and mood disorder. Id New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2016). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 1. New and material evidence has been received to reopen the claims of entitlement to service connection for back, bilateral leg, and right knee conditions. In a September 2002 rating decision, the RO declined to reopen the Veteran’s back claim based on a finding that new and material evidence demonstrating link between the Veteran’s current condition and his active military service had not been submitted. In the same decision, the RO declined to reopen the Veteran’s bilateral leg and right knee conditions claim based on findings that new and material evidence demonstrating the presence of a current condition had not been submitted. The Veteran did not appeal the September 2002 RO decision nor submit new and material evidence within one year. The September 2002 rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In December 2012, the Veteran filed an application to reopen his back, bilateral leg and right knee claims. Evidence received since the previous denial includes an April 2015 report of consultation and examination in which Dr. P.J.Y. diagnosed the Veteran with degenerative disc disease of the thoracic and lumbar spine and osteoarthritis of the lumbar spine, as well as traumatic residual right knee degenerative joint disease complicated by lateral instability. He suggested a relationship between the back and right knee conditions and a fall in service. Regarding a bilateral leg condition, Dr. P.J.Y. diagnosed the Veteran with idiopathic pain concomitant with restless leg syndrome, which persisted to the present time since the Veteran’s military service. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA, and is material because it relates to unestablished facts necessary to establish each claim. Accordingly, the Veteran’s claims are reopened. 2. New and material evidence has been received to reopen a claim of service connection for PTSD, now categorized as an acquired psychiatric disorder, including PTSD, anxiety, and mood disorder. In a September 2002 rating decision, the RO declined to reopen the Veteran’s PTSD claim based on a finding that new and material evidence had not been received demonstrating evidence of a life threatening stressful situation or that the stressors claimed were beyond ordinary. The Veteran did not appeal the September 2002 rating decision, nor did he submit new and material evidence within one year. The September 2002 rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In December 2012, the Veteran filed an application to reopen his PTSD claim. Evidence received since the previous denial includes VA treatment records dated in December 2012 with a diagnosis of PTSD, depressive disorder not otherwise specified, mood disorder, and histrionic personality disorder. In May 2013, the Veteran was diagnosed with PTSD, generalized anxiety disorder, and mood disorder by history. In an April 2015 report of consultation and examination, Dr. P.J.Y. indicated that the Veteran had PTSD that was directly and causally related to the Veteran’s military service. On April 2014 psychological evaluation from Dr. W.J.A., Psy.D., the examiner opined that the Veteran’s symptoms of anxiety were as likely as not service-connected. The Board finds that new and material evidence has been presented. The evaluations from Dr. W.J.A. and Dr. P.J.Y. are new because they were not previously submitted to VA, and material because they relate to unestablished facts necessary to establish the claim. Accordingly, the Veteran’s claim is reopened. REASONS FOR REMAND 1. The claims for entitlement to service connection for thoracolumbar spine, bilateral leg, and right knee disabilities are remanded. In an August 2017 statement, the Veteran reported that he did a lot of marching and standing at attention at times with an M-14 on his shoulders, which caused pain in his back and knees as well as cramps in his legs. Service treatment records include an August 1968 treatment record in which the Veteran was seen for pains in his right knee. On a March 1970 report of medical history at separation, the Veteran indicated that he had cramps in his legs and an examiner noted that the Veteran had occasional cramps. On April 2015 report of consultation and examination, Dr. P.J.Y. diagnosed the Veteran with degenerative disc disease of the thoracic and lumbar spine; osteoarthritis of the lumbar spine; and traumatic residual degenerative joint disease of the right knee complicated by lateral instability, and suggested a relationship to an alleged uphill fall in service. Regarding a bilateral leg condition, Dr. P.J.Y. diagnosed the Veteran with idiopathic pain of the concomitant with restless leg syndrome and suggested that it persisted since the Veteran’s military service. The explanation in support of Dr. P.J.Y.’s opinion is not sufficient to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning). A review of the record indicates that Dr. P.J.Y. did not obtain x-rays or any additional testing, and he did not explain how he determined the Veteran’s current diagnoses. Moreover, Dr. P.J.Y. did not provide a clinical explanation in support of his positive nexus opinions, especially in light of normal clinical findings on examination upon separation, as well as notation upon separation that the Veteran’s leg cramps occurred after a long period of biking. On remand, schedule the Veteran for appropriate back, knee and leg examinations to assess the current nature and etiology of each disability. 2. The claim for entitlement to service connection for an acquired psychiatric disorder, including anxiety and PTSD is remanded. During the appeal period, the Veteran reported that he was “brainwashed” every day in service, was told that he would be sent to Vietnam to die, had “negative thoughts about the way [he] was treated in the military”, was upset greatly by his exposure to guns after he was drafted, and an individual pointed an M-14 at him in basic training and frightened him as he was surprised the individual “didn’t pull the trigger…” See VA treatment records dated in December 2012, May 2013 and July 2013, as well as the April 2014 psychological evaluation from Dr. W.J.A. The Veteran’s mental health disability has been variously diagnosed during the appeal period. Notably, Dr. P.J.Y. indicated the Veteran had PTSD related to service, but did not provide a supporting rational for his conclusion. He also stated that his expertise insofar as PTSD was concerned was the recognition for him to refer to the appropriate specialist, as he did not treat PTSD. VA treatment during the current appeal period since December 2012 also included such diagnoses as depressive disorder not otherwise specified, mood disorder, and histrionic personality disorder, generalized anxiety disorder. On April 2014 psychological evaluation, Dr. W.J.A. diagnosed the Veteran with anxiety, not otherwise specified and mood disorder, not otherwise specified and found that the symptoms of anxiety were as likely as not service-connected. Although Dr. W.J.A. administered several tests to clarify the diagnosis, she did not explain how it was determined that the Veteran’s symptoms of anxiety were related to his service, particularly when no psychiatric symptoms were reported while the Veteran was in service, and when the Veteran was given a “normal” psychiatric assessment at the time of separation. On remand, a comprehensive mental health examination should be scheduled to clarify the nature and etiology of the Veteran’s psychiatric disability or disabilities. 3. The claim for entitlement to service connection for cephalalgia (headaches) is remanded. On a April 2015 report of consultation and examination, Dr. P.J.Y. diagnosed the Veteran with cephalgia, and found that it was more likely than not directly and causally related to the Veteran’s fall while marching uphill. As above, Dr. P.J.Y. did not explain how he determined the Veteran’s current diagnosis, nor did he provide adequate medical explanation or rationale in support of the positive nexus. Thus, a new examination should be scheduled, and an opinion obtained. 4. The claim for entitlement to a TDIU is remanded. The matter of TDIU is inextricably intertwined with the currently remanded claims for service connection. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Obtain any outstanding records of pertinent medical treatment from VA from February 2017 and private health care providers, including Orthopaedic Associates. With the Veteran’s assistance, obtain copies of any pertinent records and add them to the claims file. 2. Schedule a VA examination or examinations to address the Veteran’s claimed thoracolumbar spine, bilateral leg, and right knee disabilities. The entire claims file must be made available to the examiner(s). The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished. The examiner(s) should report the following: a) Thoracolumbar Spine Disability i. Indicate all thoracolumbar spine disabilities shown during the current appeal period, since December 10, 2012. If the Veteran exhibits back pain manifesting in functional limitation or loss, such should be accepted as a disability for VA purposes even if no underlying diagnosis can be identified. ii. For each thoracolumbar spine disability identified, opine as to whether it is at least as likely as not (50 percent probability or greater) that such had its onset during active service, or is otherwise related to any in-service disease, event, or injury. iii. The examiner should consider the Veteran’s contentions that he fell in service and that he did a lot of marching and standing at attention at times with an M-14 on his shoulders, which caused pain in his back. The examiner should also consider the findings and opinion provided by Dr. P.J.Y. iv. The examiner should include the underlying reasons for the opinions expressed. b) Bilateral Leg Disability i. Indicate all bilateral leg disabilities shown during the current appeal period, since December 10, 2012. If the Veteran exhibits bilateral leg pain manifesting in functional limitation or loss, such should be accepted as a disability for VA purposes even if no underlying diagnosis can be identified. ii. For each bilateral leg disability identified, opine as to whether it is at least as likely as not (50 percent probability or greater) that such had its onset during active service, or is otherwise related to any in-service disease, event, or injury. iii. The examiner should consider the Veteran’s contentions that fell in service and that he did a lot of marching and standing at attention at times with an M-14 on his shoulders, which caused cramps in his legs. The examiner should also specifically consider the March 1970 separation examination noting the Veteran’s complaints of occasional leg cramps after long biking as well as the findings and opinion provided by Dr. P.J.Y. iv. The examiner should include the underlying reasons for the opinions expressed. c) Right Knee Disability i. Indicate all right knee disabilities shown during the current appeal period, since December 10, 2012. If the Veteran exhibits right knee pain manifesting in functional limitation or loss, such should be accepted as a disability for VA purposes even if no underlying diagnosis can be identified. ii. For each right knee disability identified, opine as to whether it is at least as likely as not (50 percent probability or greater) that such had its onset during active service, or is otherwise related to any in-service disease, event, or injury. iii. The examiner should consider the Veteran’s contentions that that he fell in service and also did a lot of marching and standing at attention at times with an M-14 on his shoulders, which caused pain in his knees. The examiner should also specifically consider the August 1968 service treatment record documenting right knee pain as well as the findings and opinion provided by Dr. P.J.Y. iv. The examiner should include the underlying reasons for the opinions expressed. 3. Schedule a VA examination to address the Veteran’s acquired psychiatric disorder, including PTSD, anxiety, and mood disorder. The entire claims file must be made available to the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished. The examiner should report the following: a) Indicate all psychiatric disabilities shown during the current appeal period, since December 10, 2012. b) If PTSD is diagnosed, the examiner should specify the stressor(s) upon which the diagnosis is based, to include where the stressor is related to a fear of hostile miliary or terrorist activity. c) If any other psychiatric disability is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not that such disability identified had onset in, or is otherwise related to the Veteran’s active service or any incident therein. d) The examiner should consider the Veteran’s reports that he was “brainwashed” every day in service, was told that he would be sent to Vietnam to die, had “negative thoughts about the way [he] was treated in the military”, was upset greatly by his exposure to guns after he was drafted, and an individual pointed an M-14 at him in basic training and frightened him as he was surprised the individual “didn’t pull the trigger…” See VA treatment records dated in December 2012, May 2013, and July 2013 as well as the April 2014 psychological evaluation from Dr. W.J.A. The Veteran also reported that his anger began in the military and he developed an exaggerated startle response while in Germany. See April 2014 psychological evaluation from Dr. W. J.A. e) The examiner should consider the findings and opinions from Drs. P.J.Y. and W.J.A. f) A rationale for all opinions expressed must be provided. 4. Schedule a VA examination to address the Veteran’s cephalgia (headaches). The entire claims file must be made available to the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished. The examiner should: a) Clarify whether the Veteran has had cephalgia/headaches during the current appeal period, since December 10, 2012 b) If so, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any cephalgia or headache disabilities had their onset during active service, or are otherwise related to any in-service disease, event, or injury. c) The examiner should consider the Veteran’s contentions, including that he fell in service. The examiner should also specifically consider the findings and opinion provided by Dr. P.J.Y. d) The examiner should include the underlying reasons for the opinions expressed. 5. Thereafter, readjudicate the issues on appeal, to include entitlement to a TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Crohe, Counsel