Citation Nr: 18160307 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-06 720 DATE: December 27, 2018 ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder) is reopened. To that extent only, the appeal is granted. New and material evidence not having been received, the application to reopen the claim for service connection for a lumbar spine disorder (claimed as back condition) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder) is remanded. FINDINGS OF FACT 1. The Veteran was separated from service in July 1983 with a bad conduct discharge by reason of the sentence of a general court martial. 2. The September 2014 rating decision is final. 3. According to the evidence on file, the Veteran's lumbar spine disability did not develop in the honorable period of service from July 1978 to February 1981, the disability appears to have its origin during the Veteran’s service from February 1981 to July 1983, service that ended with a bad conduct discharge. 4. The September 2014 rating decision found that additional evidence is necessary to establish service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder). 5. The evidence received since the September 2014 denial relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously denied claim for service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder), and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017). 2. New and material evidence has not been received, and the claim of service connection for a lumbar spine disorder is not reopened. 38 U.S.C. §§ 101, 1110, 1131, 5107, 5108, 7105 (2012); 38 C.F.R. §§ 3.12, 3.13, 3.102, 3.156(a), 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1978 to February 1981. The Veteran also had active service from February 1981 to July 1983, for which he received a bad conduct discharge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 and a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Finally, since the statement of the case, and following certification of this matter to the Board, additional relevant evidence has been associated with the claims file. Ordinarily, no waiver of RO consideration is necessary, as the Veteran’s substantive appeal was received after February 2, 2013. 38 U.S.C. § 7105(e). The Board finds, however, as the evidence is cumulative of the evidence already considered, no waiver is necessary. In general, rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as 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). In this regard, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). 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." New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Service department findings are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a) (2015); Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997). VA has no authority to alter the claimant's discharge classification - the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). In particular, a discharge from military service because of willful and persistent misconduct, including a discharge under other than honorable conditions, is considered to have been issued under dishonorable conditions. A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4) (2017). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b) (2017). Service connection may be established for disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder) The Veteran and his representative assert that the Veteran is entitled to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder) because he claims it originated due to his active duty service. The claim for service connection for an acquired psychiatric disorder was previously finally denied in an September 2014 rating decision. The claim was denied because the claim lacked a medical diagnosis, a verified in-service stressor, and a nexus between the current symptomatology and the claimed in-service stressor. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b) (2017). Thus, the decision became final. The pertinent evidence received since the September 2014 denial includes mental health records which include a diagnosis of depressive disorder. Presuming the credibility of the evidence, the record now indicates that the Veteran is being treated for a mental health disorder, that may be related to service. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. While the diagnosis is not for posttraumatic stress disorder, it relates to potentially similar symptoms. When a Veteran submits a claim, the Veteran is seeking service connection for the symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Thus, as new and material evidence has been received, the claim for service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder) is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder The Veteran asserts that he is entitled to service connection for a lumbar spine disorder. In a September 2014 rating decision, the RO denied service connection for a lumbar spine based on the fact that the Veteran’s service from February 1981 to July 1983, which includes service treatment records relating to treatment due to back pain, ended with a bad conduct discharge by reason of the sentence of a general court martial. The Veteran was notified of the adverse determination, and did not timely appeal the determination. In a November 2016 rating decision, the RO confirmed and continued the previous denial of service connection for a lumbar spine disorder. Since the final September 2014 decision, evidence received was deemed cumulative or did not tend to show that the Veteran's lumbar spine problems were a service-connectable disability. New evidence received since the September 2014 rating decision includes statements by the Veteran and evidence regarding treatment for a lumbar spine disorder, which note the Veteran’s history of this condition. Having reviewed this evidence, the Board finds that this evidence is merely cumulative of the evidence of record at the time of the September 2014 rating decision, and is not material to the reason for the denial, and that no new and material evidence sufficient to reopen the Veteran's claim has been received. Compared to the record at the time of the September 2014 decision, the additional evidence does not relate to the unestablished fact necessary to substantiate the Veteran's claim. The September 2014 decision denied entitlement to service connection because the Veteran’s lumbar spine disorder manifested around August 1981 and September 1981, within service from February 1981 to July 1983, service that ended with a bad conduct discharge. A bad conduct discharge for this period of active duty is a bar to VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.360. The Board is sympathetic to the Veteran's argument that his disorder began during his service in the Army, almost two years before the incident that caused his eventual bad conduct discharge, however, the Board and VA are constrained by the regulations as written. In order to reopen the Veteran's claim, new and material evidence must be submitted, not evidence that is either cumulative of the record or not material to the reason for the prior final denial. 38 C.F.R. § 3.156(a). The Veteran's claim was previously denied because service connection may not be granted if the veteran has not established a reclassification of his discharge for the period in question. The Veteran offered no new and material evidence that addresses this reason for the prior final denial. As such, reopening of the Veteran's previously denied claim is not warranted. In summary, the Board finds that no new and material evidence has been received sufficient to reopen his claim. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder) is remanded. While the Board sincerely regrets further delay, additional development is required before the Veteran's claim for service connection to an acquired psychiatric disorder may be adjudicated on the merits. With respect to the Veteran's claim, the Board notes that the Veteran was not previously provided a VA examination. As the Veteran's lay statements and treatment records indicate that the Veteran may have a disability that could be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for any acquired psychiatric disorder the Veteran may have. The matter is REMANDED for the following action: 1. Obtain and outstanding VA and private treatment records and associate them with the Veteran's claims file. 2. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed acquired psychiatric disorder. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The Veteran's claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide: a. A determination as to whether the Veteran's claimed acquired psychiatric disorder, to include PTSD, meets the criteria for diagnosis. b. Provide an opinion as to whether the claimed in-service stressor qualifies for a diagnosis of posttraumatic stress disorder. c. Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed acquired psychiatric disorder originated during, or is etiologically related to, active duty service. d. If a diagnosed psychiatric disorder originated during, or is etiologically related to, active duty service, please elaborate as to which period of service. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel