Citation Nr: 19195612 Decision Date: 12/20/19 Archive Date: 12/20/19 DOCKET NO. 17-13 274 DATE: December 20, 2019 ORDER The request to reopen a claim for service connection for a low back disability is granted. Entitlement to service connection for hepatitis C is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) (previously claimed as nightmares), is remanded. FINDINGS OF FACT 1. In an unappealed July 1994 rating decision, the Veteran was denied service connection for a low back condition. 2. The evidence associated with the claims file subsequent to the July 1994 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The evidence of record supports that the Veteran’s hepatitis C is etiologically linked to his service and is a separate diagnosis from his service-connected hepatitis B. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria to establish entitlement to service connection for hepatitis C have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1972 to January 1994. The psychiatric appeal has been expanded to include all acquired disorders, including PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In October 2019, the Veteran, through his attorney, withdrew his request for a Board hearing. Service Connection 1. New and material evidence has been received to reopen a claim for service connection for a low back disability Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). The Veteran was previously denied service connection for a low back condition based on the lack of evidence of lumbar spine pathology in service and or on current examination. See July 1994 Rating Decision. The rating decision was not appealed, nor new and material evidence submitted, within a year. As such, the July 1994 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Since the prior final decision, evidence of a current diagnosis has been associated with the record. A December 2016 magnetic resonance imaging (MRI) revealed lumbar stenosis. The evidence is new as it was not previously of record at the time of the prior final decision. Nor is the evidence cumulative or redundant of evidence previously of record. The evidence also speaks to a previously unestablished fact, a current diagnosis, and has a reasonable possibility of substantiating the claim for service connection for a low back disability. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for a low back disability is reopened. 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for hepatitis C Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Having reviewed the evidence of record, the Board finds that service connection for hepatitis C has been established. The Veteran underwent a VA hepatitis examination in 2017, and the examiner indicated a diagnosis for hepatitis C. As such, a current diagnosis is established. The Board notes that the Veteran is already service connected for hepatitis B and cannot be compensated for the same symptomology more than once, as such would constitute pyramiding in violation of 38 C.F.R. § 4.14. However, the 2017 VA examiner opined hepatitis B and C were not a single diagnosis as the available lab work in the Veteran’s service treatment records (STRs) show chronic non-infectious hepatitis B. The examiner further indicated that there was no lab work done at that time for hepatitis C and current lab work showed positive antibodies to both conditions. The Board resolves any reasonable doubt in the Veteran’s favor in finding that his hepatitis B and C are separate diagnoses. As such, the remaining issues are an in-service incurrence and nexus. The 2017 examiner indicated that review of the Veteran’s STRs show that he was only tested for hepatitic B and A while in service. The examiner stated that there was no laboratory data relative to hepatitis C; therefore, it could not be determined when the actual onset of the illness occurred. The examiner stated that “[h]owever, the opinion weighs in the Veteran’s favor regarding possible onset in service given his reported history of getting a tattoo while stationed in Germany in 1985.” The Board finds the opinion adequate considering the Veteran’s lay statements and the lack of appropriate testing relative to the in-service event. Additionally, the record supports the Veteran’s assertions relied on by the examiner. An August 1984 medical report is negative for any tattoos, whereas subsequent reports indicate a forearm tattoo. As such, the record supports that the Veteran obtained an in-service tattoo in 1985. An in-service event is therefore established. As the 2017 examiner linked the Veteran’s hepatitis C to an in-service tattoo, the Board finds that a nexus is also established. Thus, the Board finds that service connection for hepatitis C is established. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. Remand is necessary to afford the Veteran a VA examination regarding his low back disability. As noted, the record reflects a current diagnosis of lumbar stenosis. As to an in-service incurrence, the Veteran asserts that he injured his back during service on two-mile runs carrying a ruck sack that weighed between 2 and 25 pounds. He also indicated that he did not report to sick call and instead ignored the pain. These statements are enough to indicate an in-service incurrence and association to service. Yet, lacking a nexus opinion, the record is insufficient to decide the claim. As such, the Board finds that VA’s duty to assist has been triggered, and remand is necessary to afford the Veteran a VA examination. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder, including PTSD In a January 2016 statement, the Veteran reported in-service stressors involving mistreatment and harrassment by superior officers. The Veteran was sent a letter in November 2016 asking him to provide specific details of the personal trauma incident that he claimed resulted in PTSD. It is unclear whether the Veteran received the letter as he did not respond, though he has continued to maintain that such personal trauma occurred. To ensure the duty to assist has been satisfied, a remand is necessary to allow VA to attempt to corroborate the Veteran’s reported stressors. Considering the development above, and as it is essential that each disability be viewed in relation to its history, a remand is also necessary to obtain a new examination. The Board is aware that the Veteran was diagnosed with generalized anxiety disorder on VA examination in September 2018 and the examiner opined it was at least as likely as not a progression of the nervousness reported during the Veteran’s military service. However, the opinion is inadequate as it lacks a rationale. Notably, the Veteran’s STRs contain a May 1988 report of medical history wherein the Veteran marked nervous trouble with no further explanation. The corresponding examination was negative for a psychiatric disorder. The STRs also contain a September 1993 entry simply noting the Veteran had nervous trouble without explanation. The examiner failed to provide any explanation to support the opinion that the Veteran’s current anxiety is a continuation of those reports of “nervous trouble.” As the opinion is inadequate and stressor development remains pending, a remand is necessary to obtain a new examination. The matters are REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assaults and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressors based on personal assault, including harassment and mistreatment by superior officers as claimed in January 2016. If more details are needed, contact the Veteran to request the information. 2. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, including PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must opine whether the evidence of record, including the Veteran’s lay statements and his service records, corroborate the claim that a personal assault occurred in service. If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. If any other acquired psychiatric disorders are diagnosed, including generalized anxiety disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include reports of “nervous trouble” in 1988 and 1993. The examiner must provide complete rationale for all opinions expressed. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability, to include lumbar stenosis. The examiner must opine whether any currently diagnosed low back disability at least as likely as not began during active service, manifested within a year following discharge from service, or was noted during service with continuity of the same symptomatology since service. Importantly, the examiner must address the Veteran’s lay assertions that he injured his back in service carrying a heavy ruck sack (2 to 25 pounds) on two-mile runs, with continued problems to the present. The examiner must provide complete rationale for all opinions expressed. 4. After completing the above actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. K. L. Wallin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.