Citation Nr: 1808105 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-18 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, anxiety, and bipolar disorder, to include as secondary to service-connected disabilities. 3. Entitlement to an increased initial disability rating in excess of 10 percent for a lumbar spine disability. 4. Entitlement to total disability for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran had active service from October 1984 to October 1988, and again from May 1990 to June 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2011 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, respectively and in pertinent part, service connection for PTSD on the basis of a lack of new and material evidence, and denied an increased rating for a lumbar spine disability, TDIU, and service connection for a dysthymic disorder. By way of background, the Veteran originally claimed service connection for PTSD and was originally denied in June 1995. The Veteran was notified of the June 1995 rating decision but did not file a notice of disagreement or submit any new and material evidence during the one-year appellate period. Thus, that June 1995 rating decision is final. The Veteran subsequently attempted to reopen that claim on several occasions as detailed below. The Veteran originally claimed entitlement to service connection for a stress disorder, and later PTSD. In the Veteran's claims files, VA diagnoses of dysthymic disorder and bipolar disorder are made at different times, and depression and anxiety are also mentioned. Because the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the issues on the title page have been recharacterized to reflect a claim for an acquired psychiatric disorder. PTSD is characterized as a separate issue on the title page because of the new and material evidence requirements, as described following. 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 (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The Veteran testified at a July 2017 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. The VLJ who conducted the hearing noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The appellant provided testimony in support her claims and expressed her contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The issues of service connection for an acquired psychiatric disorder, an increased rating for a lumbar spine disability, and TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In June 1995, the RO issued a rating decision denying entitlement to service connection for a stress disorder. The rating decision was not appealed and new and material evidence was not received during the one-year appeal period following that decision, and thus, that decision is final. 2. The Veteran sought to reopen her stress disorder claim, now PTSD, but rating decisions in December 2001, August 2002, June 2007, and May 2011 determined that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for PTSD. 3. Evidence received since the May 2011 rating decision regarding the Veteran's claimed service connection for the PTSD disability is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The May 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105 (West 2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). 2. New and material evidence sufficient to reopen the claim of service connection for PTSD has been received since May 2011 and the claim is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The claim regarding the PTSD is reopened; therefore any defect with respect to the notice provided to the Veteran is harmless error. II. Petition to Reopen In June 1994, VA received the Veteran's original claim for entitlement for service connection for a stress disorder. The claim was originally denied in May 1995 and the Veteran was notified on June 2, 1995 because the evidence did not show an actual diagnosis of a psychiatric disorder. The RO reviewed the Veteran's service treatment records (STRs), private treatment records, and her statements regarding the stress disorder, which she attributed to an in-service motor vehicle accident. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision. She also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (West 1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). The Veteran sought to reopen this claim and was denied service connection in rating decisions in December 2001, August 2002, June 2007, and May 2011. The RO reviewed the Veteran's service treatment records (STRs), VA treatment records, private treatment records, and her statements regarding PTSD during and after service. The Veteran filed a notice of disagreement (NOD) in July 2013. VA issued a Statement of the Case (SOC) in April 2014. The Veteran perfected an appeal to the Board in May 2014. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. §3.156 (c)(1). In this case, the electronic record indicates that service records were received by the RO in June 2014, which included the Veteran's entire service treatment records. However, the May/June 1995 rating decision and subsequent decisions not to reopen the claim including the May 2011 rating decision noted review of the record and that service medical records had been received and evaluated as part of that decision. As it appears that the available service records were of record at the time of the May/June 1995 rating decision, decision and subsequent decisions not to reopen the claim including the May 2011 rating decision, the Board finds that reconsideration of the claim under 38 C.F.R. § 3.156 (c) is not warranted. The Board will, therefore, address the appeal to reopen service connection based on the submission of new and material evidence. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The evidence of record in May 2011 consisted of service records, including personnel records and enlistment and separation examination reports, military medical board examinations and results, VA and private treatment records prior to approximately May 2011, VA examination reports, and lay statements from the Veteran. The evidence of record failed to establish a diagnosis of any psychiatric disorder. Since the May 2011 rating decision, the Veteran's additional VA medical records have been attached to the claims file and the Veteran has submitted additional medical records from private providers related to her psychiatric condition, to include VA treatment reports dating from 2005 to present, private treatment reports regarding the Veteran's psychiatric conditions in 2011, and again from 2016-2017. Additionally, the Veteran has provided lay statements from herself and her family, to include her spouse, sibling, mother, and adult daughters regarding her psychiatric conditions. Furthermore, the Veteran's statements during the hearing of July 2017 with the undersigned VLJ have provided additional insight and facts into the Veteran's claims, including her claim for service connection for PTSD. This evidence is not cumulative or redundant of the evidence previously of record, and assuming its credibility for the purpose of the threshold question of whether the claim can be reopened raises a reasonable possibility of substantiating the Veteran's claim of service connection for PTSD. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for PTSD condition is warranted. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). To that extent only, the claim is granted. ORDER New and material evidence sufficient to reopen the claim of service connection for PTSD has been received, and to that extent only, the claim is granted. REMAND The Veteran is claiming entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to other service-connected disabilities. The Veteran and her representative assert that the service-connected injuries resulting from an in-service motor vehicle accident have led to her claimed mental disorders. In addition, the Veteran is seeking an increased initial rating for her service-connected lumbar spine disability in excess of 10 percent, and also TDIU. For each claimed disability, the Veteran has asserted that her symptoms and conditions have worsened, per her lay statements and testimony in her July 2017 hearing. Acquired Psychiatric Disorder(s), to include PTSD VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-IV or DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f), 4.125(a). The Veteran last had a VA examination in December 2011 to assess her claimed PTSD. PTSD was not diagnosed, but dysthymic disorder and bipolar disorder were. A negative opinion for service connection was provided but contained speculative language, reducing its probative value. Additionally, the Veteran has since provided numerous evidentiary statements, to include her testimony during a July 2017 hearing before the undersigned VLJ, to corroborate her claimed stressors for her PTSD claim. Various military and VA psychologists have diagnosed different mental disorders at different times, but the pertinent regulation requires a VA psychiatrist or psychologist, or a psychiatrist or psychologist contracted by the VA to ascertain a diagnosis of PTSD, if so present. Thus, a new examination and opinion are necessary to address the claim for an acquired psychiatric disorder, to include PTSD. Additionally, an opinion regarding service connection is necessary for any acquired psychiatric disorder so diagnosed, to include the possibility of secondary service connection. Increased Rating for Lumbar Spine Disability During the Veteran's hearing with the undersigned VLJ in July 2017, the Veteran indicated reports of increasing pain in her lumbar spine, radiating down to her extremities. Additionally, the Veteran reports tingling and pain in her lower extremities that is constant. Yet, on her VA examinations in April 2011 and April 2013, the examiner reported results that are contrary to the Veteran's lay statements during the hearing or previously made. For example, the examiner reported that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time, while the Veteran has stated otherwise in her testimony and lay statements. Also, the examiner noted no radicular pain or any other signs or symptoms due to radiculopathy, but the Veteran has reported those symptoms in her hearing testimony and lay statements. In light of the Veteran's testimony and the additional lay evidence submitted, the Board finds that an examination regarding the claim condition is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The most recent examination for the lumbar spine disability was April 2013. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. TDIU The Veteran has averred that she has been unable to work as a result of her lumbar spine and other service-connected disabilities since approximately 2012. Because her appeal for an increased rating for her lumbar spine and service connection claim for an acquired psychiatric disorder could have an effect on the adjudication of the claim of TDIU, that issue must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the Board finds that a comprehensive opinion regarding her employability is necessary in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Accordingly, the case is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for VA examinations to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include PTSD. The claims file must be made available to and reviewed by the examiner(s). After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed acquired psychiatric disorder had its onset in service or is otherwise related any to any in-service disease, event, or injury. i. If not, is it at least as likely as not (a fifty percent probability or greater) that the acquired psychiatric disorder was caused by the Veteran's service-connected disabilities and/or the medications required for it? ii. If the service-connected disabilities did not cause the acquired psychiatric disorder, is it at least as likely as not (a fifty percent probability or greater) that acquired psychiatric disorder was aggravated by the service-connected disabilities or its medications? iii. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the acquired psychiatric disorder by the service connected disability. 3. Schedule the Veteran for a VA examination by a medical professional of appropriate expertise to determine the current nature and severity of her service-connected thoracolumbar spondylosis disability with mild grade I spondylolisthesis at L4-L5, to include any associated neurological or radicular disorders. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The claims file, including a copy of this remand, should be reviewed in conjunction with this examination. The report of the examination should specifically contain an opinion regarding the extent of the neurological or radicular damage resulting from the lumbar spine or any other related disability. The VA examiner should conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. If the VA examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding her flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. 4. Thereafter, readjudicate the issues on appeal, to include TDIU. If the determination remains unfavorable to the Veteran, she and her 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 her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs