Citation Nr: 18106964 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-00 466 DATE: June 1, 2018 ORDER New and material evidence has been received to reopen the claim for service connection for posttraumatic stress disorder (PTSD), and to that extent only, the appeal is granted. New and material evidence has been received to reopen the claim for service connection for hypertension, to include as secondary to PTSD, and to that extent only, the appeal is granted. Service connection for PTSD is denied. Service connection for hypertension, to include as secondary to PTSD is denied. Entitlement to an increased rating in excess of 40 percent for service-connected degenerative disc disease of the lumbosacral spine and sacroiliac sprain with sacroiliac joint dysfunction is denied. FINDINGS OF FACT 1. In a June 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for PTSD and hypertension, to include as secondary to PTSD; the Veteran did not appeal the decision and new and material evidence was not received within the one year appeal period. 2. Evidence associated with the record since the June 2011 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for PTSD and hypertension, to include as secondary to PTSD. 3. The Veteran does not have a current diagnosis for PTSD. 4. The Veteran’s hypertension is not caused or aggravated by active duty service or PTSD. 5. The Veteran’s service-connected lumbar spine disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The portion of the June 2011 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 2. New and material evidence has been received and the claim seeking service connection for PTSD is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The portion of the June 2011 rating decision denying service connection for hypertension, to include as secondary to PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 4. New and material evidence has been received and the claim seeking service connection for hypertension, to include as secondary to PTSD is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for PTSD have not been satisfied. 38 U.S.C. §§ 1110, 5110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 6. The criteria for service connection for hypertension, to include as secondary to PTSD have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria for a rating in excess of 40 percent for service-connected degenerative disc disease of the lumbosacral spine and sacroiliac sprain with sacroiliac joint dysfunction have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to July 1967, to include service in the Republic of Vietnam from July 1966 to July 1967. The Board of Veterans’ Appeals (Board) acknowledges that December 2016, July 2017, and January 2018 rating decisions denied the Veteran’s service connection claim for right lower extremity radiculopathy; reopened and denied the Veteran’s claim for service connection for malignant melanoma; and reduced the Veteran’s rating for service-connected lumbar spine disability. The Veteran filed a timely notice of disagreement (NOD) with the decisions. A statement of the case (SOC) has not been issued with regard to these claims. Generally, the filing of a NOD confers jurisdiction on the Board and the next step is for the Agency of Original Jurisdiction (AOJ) to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). However, because the Board’s review of the claims file reveals that the RO is still taking action on these issues, the Board will not exercise formal jurisdiction at this time. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for PTSD and hypertension, to include as secondary to PSTD in a June 2011 rating decision, finding that the Veteran did not have a current diagnosis of a psychiatric disorder and that hypertension was not incurred during a period of active military service and did not manifest to a compensable degree within one year of service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received more than one year since the June 2011 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. For example, VA examinations and treatment records reflect a current psychiatric disorder diagnosis and address the nexus element of the claims, and thus raise a reasonable possibility of substantiating the claims. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened and will be considered on the merits.   Service Connection 1. PTSD The Veteran asserts he has PTSD related to his military service. He underwent VA examinations for PTSD in April 2011, April 2013, and October 2016, all of which found the Veteran had no current psychiatric disorder. A counselor at the Vet Center indicated in October 2010 that the Veteran was participating in counseling sessions, but did not note any current psychiatric disorder in that statement or subsequent records. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (requiring PTSD diagnoses to conform to the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM)); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence of record does not show a current diagnosis for a psychiatric disorder. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In this regard, the Veteran asserts he has a fear of flying related to an in-service plane crash, and his wife has described her observations of the Veteran’s behavior over the years. See August 2010 Green Bay Vet Center Treatment Record; January 2013 Statement in Support of Claim for PTSD; January 2013 statement from M.K.B. However, neither the Veteran nor his spouse is not shown to possess any medical expertise; thus, their opinions as to the existence of any psychiatric disorder or as to the etiology of such disability are not competent medical evidence. As there is no competent evidence that the Veteran has a current psychiatric disorder, his service connection claim must be denied. 2. Hypertension, to include as secondary to PTSD. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as hypertension. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service treatment records are absent complaints, treatment or diagnoses related to hypertension. At separation in July 1967, relevant examinations were normal and the Veteran reported he was in excellent health. The record reflects that hypertension was not diagnosed until, per the Veteran’s reports, in 2001, which is decades after service and well past the presumptive period for chronic disease, and has not been related to service in the competent medical evidence of record. Given the above, the preponderance of the evidence is against a finding that hypertension onset during service or manifested to a compensable degree within the first year after discharge from service. Indeed, the Veteran has not alleged such; instead, he asserts that he developed hypertension as a result of PTSD. As service connection for PTSD is denied, the claim for service connection for hypertension secondary to PTSD must also be denied. To prevail on this theory of entitlement, service connection would have to be in effect for a psychiatric disorder. See 38 C.F.R. § 3.310. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Lumbar Spine Disability. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, the October 2016 examiner reported that the Veteran has IVDS. However, he reported that the signs and symptoms due to IVDS did not require bed rest prescribed by a physician in the past 12 months. The Veteran’s lumbar spine disability is rated under Diagnostic Code 5242. To warrant a higher rating for the lumbar spine disability the evidence would need to show ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The appeal stems from a July 2015 claim for increased rating, plus the one-year look back period. The Board emphasizes that the Veteran has separately appealed the propriety of the reduction in rating for his back disability, effective March 1, 2017, which is not part of the instant appeal. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (rating reductions claims are separate from increased ratings claims). During the appeal period the Veteran underwent VA examinations in September 2015 and October 2016. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The VA examiners reported the Veteran has functional limitations with repetitive bending, prolonged standing, and lifting more than 20 pounds. The examiners noted that there was no ankylosis of the spine. None of the other medical evidence reflects that the Veteran’s lumbar spine disability is manifested by ankylosis of the entire thoracolumbar spine. Id. While the Veteran has essentially stated that he has reduced motion in his spine, his lay statements do not reveal that he has ankylosis. In this regard, the Veteran has reported that long drives are difficult due to back pain. In October 2016 the Veteran’s wife reported that the Veteran has stiffness and difficulty sleeping due to pain. The lay statements do not indicate that that the Veteran has ankylosis of the entire thoracolumbar spine. Given the above, a rating in excess of 40 percent is not warranted. Regarding relevant neurological findings, the October 2016 and June 2017 VA examiners noted the Veteran has radiculopathy of the left lower extremity that is no more than mild in severity, supporting the currently assigned 10 percent rating. See October 2016 and June 2017 VA examinations and May 2016 treatment report. There is no indication of right lower extremity radiculopathy, and his entitlement to service connection for right lower extremity radiculopathy is currently in the initial stages of an appeal at the RO level. As the Veteran is already assigned a rating for the left lower extremity, and there is no objective medical evidence to support that the Veteran has radiculopathy in the right lower extremity, a separate disability rating is not necessary. The Board finds there are no other neurological symptoms which should be addressed by a separately-assigned disability rating. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning even higher ratings, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel