Citation Nr: 18159636 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-42 505 DATE: December 19, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder (other than PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depression and PTSD, is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In a July 2002 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for PTSD; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the July 2002 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD, and raises a reasonable possibility of substantiating the claim. 3. In a March 1996 rating decision, the AOJ denied service connection for a psychiatric disorder (other than PTSD); a timely NOD was not filed, and no new and material evidence was received within the appeal period. 4. Additional evidence received since the March 1996 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for a psychiatric disorder (other than PTSD), and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2002 decision denying the claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the July 2002 decision to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The March 1996 denying the claim of entitlement to service connection for a psychiatric disorder (other than PTSD) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. New and material evidence has been received since the March 1996 decision to reopen the claim of entitlement to service connection for a psychiatric disorder (other than PTSD). 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to June 1978, and from November 1979 to December 1986. These matters came before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and August 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20.   1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for PTSD. In July 2002, the AOJ denied the Veteran’s claim of entitlement to service connection for PTSD based on there being no confirmed diagnosis of PTSD and inadequate evidence of in-service stressors. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the July 2002 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the July 2002 decision as it is the last final denial regarding PTSD. In April 2018, the Veteran submitted medical literature suggesting that substance abuse disorders are often co-occurring with other mental health disorders, and argues that the Veteran’s PTSD may have had its onset while the Veteran was experiencing substance abuse issues during service. 05/08/2018, Other (Correspondence). The Board finds that this evidence is new and that it directly pertains to a basis for the prior final decisions, by addressing whether the Veteran whether the Veteran’s PTSD had its onset in or is otherwise related to service. Therefore, the claim for service connection for an acquired psychiatric disorder, to include PTSD, is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder (other than PTSD). After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for a psychiatric disorder (other than PTSD). In March 1996, the AOJ denied the Veteran’s claim of entitlement to service connection for a psychiatric disorder based on a lack of a nexus between a current disorder and the Veteran’s active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, March 1996 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the March 1996 decision as it is the last final denial of this issue. In April 2018, the Veteran submitted medical literature suggesting that substance abuse disorders are often co-occurring with other mental health disorders, and argues that the Veteran’s major depression may have had its onset while the Veteran was experiencing substance abuse issues during service. 04/20/2018, Other (Correspondence). The Board finds that this evidence is new and that it directly pertains to a basis for the prior final decisions, by addressing whether the Veteran’s psychiatric disorder (other than PTSD) had its onset in or is otherwise related to service. Therefore, the claim for service connection for a psychiatric disorder (other than PTSD) is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depression and PTSD, is remanded. The Board has recharacterized and combined the reopened claims of service connection for PTSD and a psychiatric disorder (other than PTSD) as entitlement to service connection for an acquired psychiatric disorder, to include major depression and PTSD. The Veteran contends that he is diagnosed with an acquired psychiatric disorder, to include major depression and PTSD, and that these diagnoses are related to service. He claims that major depression and PTSD may be co-occurring with his substance use issues, and may have had its onset while experiencing substance abuse issues during service. In April 2018, the Veteran submitted medical literature suggesting that most individuals with substance abuse disorders are likely to have other co-occurring mental health disorders, and further argues that PTSD and major depression may have been present when the Veteran was experiencing substance abuse issues during his periods of active service. The Veteran’s contentions are corroborated by the evidence of record, including his military personnel record, which reveals that the Veteran was reprimanded for driving under the influence. 03/24/2015, Military Personnel Record, page 24. Likewise, the Veteran was formally diagnosed with and treated for chronic alcohol dependency shortly after service in October 1987. 09/13/1995, VA 10-1000 Hospital Summary. The Veteran should be afforded a VA examination to determine the nature and etiology of any diagnosed psychiatric disorders, to include major depression and PTSD, and to provide an opinion as to whether any diagnosed psychiatric disorders had its onset in or is otherwise related to service. 2. Entitlement to service connection for a low back disorder is remanded. The Veteran contends that he has developed a low back disorder due to active service. He believes that this is a result of heavy lifting in the performance of his job duties. Service treatment records show that the Veteran was treated for back injuries on numerous occasions. The evidence of record reveals that, during a medical assessment in November 1992, the Veteran complained of experiencing chronic back pain since discharge from service which worsened after hard labor. 04/18/2013, Medical Treatment Record, page 60. Likewise, lay statements submitted by the Veteran’s spouse indicate that the Veteran complained of back pain since at least 2008, when he got married. 08/28/2014, Buddy/Lay Statement. Furthermore, in April 2018, the Veteran submitted medical literature suggesting that Schmorl’s nodes that were previously asymptomatic may be aggravated by a traumatic event or injury; the Veteran argues that heavy lifting in service may have aggravated his otherwise asymptomatic back condition. The Board acknowledges a June 2013 VA examination and a May 2014 supplemental VA examination, which both diagnosed the Veteran with a low back condition and opined that the Veteran’s current low back condition is likely not a continuation of symptoms from service, due to the long gap in time without documented back issues. However, the Board finds that neither medical opinion considered the Veteran’s documented complaint of chronic back pain in November 1992. Furthermore, neither the June 2013 nor the May 2014 examinations specifically provide an opinion as to whether the Veteran’s back condition, including the Schmorl’s node revealed in July 1982 x-ray images, may have been aggravated by service. Thus, the Board finds that an additional addendum opinion to the June 2013 and May 2014 examinations is necessary to adjudicate this issue, to include an opinion on whether the Veteran’s low back condition was aggravated by service. These matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from September 2017 to the present. 2. After completing directive #1, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed acquired psychiatric disorders. The examiner is asked to review the virtual file, including this Remand, to become familiar with the relevant medical history related to the Veteran’s psychiatric disorders, as well as the medical literature provided by the Veteran regarding co-occurring psychiatric disorders. The examiner is to address: (a.) Identify all acquired psychiatric disorders that are currently present (or present any time from January 28, 2013, to the present). Specifically, the examiner should state whether major depression and/or PTSD are currently present during the period on appeal. The examiner is to clearly explain how the diagnostic criteria have or have not been met under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) If PTSD is diagnosed, is it least as likely as not (probability of 50 percent or more) that PTSD manifested during or is otherwise related to the Veteran’s periods of active service, to include due to the claimed in-service stressors and/or fear of hostile military or terrorist activity? The examiner should consider and address whether the onset of the Veteran’s PTSD was co-occurring with any substance abuse issues during his periods of active service. **Note: The Veteran’s military personnel record reflect that he was reprimanded for driving under the influence in August 1986, and his medical treatment records reflect that he was treated for chronic alcohol dependency in October 1987.** (c.) For any diagnosed psychiatric disorder other than PTSD, is it at least as likely as not (probability of 50 percent or more) that any diagnosed acquired psychiatric disorder manifested during or is otherwise related to the Veteran’s periods of active service. The examiner should consider and address whether the onset of the Veteran’s acquired psychiatric disorder, including major depression, was co-occurring with any substance abuse issues during his periods of active service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered, as well as any medical literature submitted by the Veteran. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive #1, obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of all current low back disorders. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand, as well as the medical literature provided by the Veteran regarding Schmorl’s nodes. The examiner is to address: (a.) Whether it is at least likely as not (probability of at least 50 percent or more) that any diagnosed low back disorder had its onset in or is otherwise related to the Veteran’s periods of active service. **Note: The Veteran’s medical treatment records reflect a complaint of chronic back pain in November 1992, and the Veteran’s spouse’s lay statements indicate complaints of back pain since 2008.** (b.) Whether it is at least as likely as not (probability of 50 percent or more) that arthritis of the lumbar spine (i) manifested to a compensable degree within one year of December 16, 1986, or (ii) was noted during service with continuity of the same symptomatology since service. **Note: The Veteran’s June 2013 VA examination reflects that he was diagnosed with arthritis of the thoracolumbar spine.** (c.) If it is determined that a low back disorder that did not have its onset in nor is related to service, is there clear and unmistakable evidence (i.e., it is undebatable) that any current low back disorder existed prior to any of the Veteran’s periods of service? If so, state whether the disorder is a congenital defect or disease. (d.) If the examiner determines that a current low back disorder clearly and unmistakably pre-existed service and is not a congenital defect, is there clear and unmistakable evidence (i.e., it is undebatable) that the pre-existing back disorder was NOT aggravated by any of the periods of active service? This may include affirmative evidence that any increase in disability was due to the natural progression of the condition. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline. If aggravation is found, state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered, as well as any medical literature submitted by the Veteran. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Han, Associate Counsel