Citation Nr: 20006790 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 19-19 724 DATE: January 27, 2020 ORDER New and material evidence having been received, service connection for an acquired psychiatric disorder is reopened. New and material evidence having been received, service connection for a back disability is reopened. Entitlement to service connection for anxiety is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for an acquired psychiatric disorder other than anxiety is remanded. FINDINGS OF FACT 1. An unappealed March 2001 rating decision denied reopening of claims for service connection for depressive disorder and lumbar strain. 2. Evidence received since the March 2001 RO decision relates to unestablished facts necessary to substantiate the claims for service connection for a back disability and service connection for an acquired psychiatric disorder. 3. Anxiety is related to service. CONCLUSIONS OF LAW 1. Evidence received since the March 2001 rating decision is new and material, and the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Evidence received since the March 2001 rating decision is new and material, and the claim of entitlement to service connection for an acquired psychiatric disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for anxiety have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1977 to August 1989. Service Connection 1. Claims to Reopen Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. See 38 C.F.R. § 3.156 (a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. An August 2000 rating decision denied service connection for depression and a back disability. The rating decision found that there was no evidence of a current disability for depression or a back condition. A March 2001 rating decision reconsidered the claims following the issuance of a Veterans Claims Assistance Act (VCAA) notice. The March 2001 rating decision found that there was no medical nexus showing that a lumbar spine disability was caused by service. The rating decision found that the Veteran did not have a chronic back disorder in service or persistent back problems since service. The rating decision found that the Veteran did not have a psychiatric diagnosis in service and that there was no post-service diagnosis of a psychiatric condition. A claim to reopen service connection for a back disability and a psychiatric disability was received in September 2018. The new evidence received with regard to the Veteran’s back and psychiatric disabilities includes VA treatment records, VA examinations dated in November 2018, and the Veteran’s statements. The evidence is new as it was not previously of record. It is also material as it relates to the issue of a medical nexus between the claimed disabilities and the Veteran’s active service. The evidence received since the prior final rating decision relates to unestablished facts necessary to substantiate the claims for service connection for a lumbar spine disability and an acquired psychiatric disorder. Accordingly, the claims for service connection for a back disability and an acquired psychiatric disorder are reopened. 2. Entitlement to service connection for anxiety The Veteran seeks service connection for an acquired psychiatric disorder, which he contends began during service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). VA treatment records reflect current diagnoses of anxiety disorder and recurrent major depressive disorder. Service treatment records dated in August 1980 show that the Veteran reported “depression and excessive worry.” A VA mental health treatment record dated in October 2018 reflects that the Veteran was referred to the clinic regarding anxiety and depression. The Veteran reported dreams of being on a ship alone and unable to find anyone. It was noted that he was on a ship when he was in the Navy but was never in a combat zone. The Veteran described symptoms of anxiety that he thought started while in the Navy. He related his symptoms to family separations and the fear that he could lose his family. His symptoms included nightmares that he related to anxiety. The VA psychologist noted that the Veteran had developed depression that seemed to be related to pain and changes in his life. The psychologist opined that there was no diagnosis of PTSD. It was noted that there was no specific trauma. The Veteran did have anxiety symptoms related to bad dreams but did not meet the diagnostic criteria for PTSD. The VA psychologist opined that it, “[s]eems likely that his anxiety started in the military but depression is secondary to chronic medical problems to include back pain.” The Veteran had a VA examination in December 2018. The examiner diagnosed recurrent major depressive disorder, generalized anxiety disorder, and other specified trauma and stressor-related disorder. The examiner opined that the diagnosis of trauma and stressor-related disorder was related to sexual abuse while in foster care in childhood and was not related to service. The examiner opined that the other mental health diagnoses were related to pain issues and the Veteran’s previous history of thyroid and prostate cancer. The December 2018 opinion lacks probative value because the examiner failed to consider the service treatment record noting depression and excessive worry. The Board finds that the preponderance of the evidence weighs in favor of the Veteran's claim for service connection for an anxiety. The evidence reflects an in-service complaint, a current diagnosis, and a medical opinion linking his diagnosis to service. Accordingly, the Board finds that service connection for anxiety is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. 2. Entitlement to service connection for fibromyalgia is remanded. There are outstanding treatment records pertaining to the Veteran’s back disability and fibromyalgia. In November 2018, the Veteran reported that he had treatment at Cahaba Pain. A remand is required to obtain the treatment records. The Veteran had a VA examination in November 2018. The examiner diagnosed fibromyalgia but did not provide a medical opinion regarding the etiology of the disability. The case must be remanded to obtain an addendum opinion. A January 1989 dental questionnaire reflects a complaint of painful joints. During service, complaints of low back pain were also noted in February 1988, May 1988, and October 1989. The Veteran had a VA examination in November 2018. The examiner diagnosed degenerative arthritis of the lumbar spine. The examiner opined that the acute low back and lumbar strain in service were temporary conditions which resolved with treatment. The examiner noted that degenerative joint disease was not diagnosed until 2017 or 2018. An October 2018 VA treatment note reflects that the Veteran reported that his injured his back in service and continued to have pain and life limitations. The examiner’s opinion is based, at least in part, on the absence of a diagnosis of degenerative joint disease until 2017 or 2018. A remand is necessary to obtain an addendum opinion addressing the evidence of continuous symptoms, as reported by the Veteran in October 2018. 3. Entitlement to service connection for an acquired psychiatric disorder other than anxiety is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder other than anxiety is intertwined with the claims for service connection for a lumbar spine disability and service connection for fibromyalgia, as the medical opinions link the Veteran’s major depressive disorder to chronic pain. The appropriate remedy for inextricably intertwined issues is to remand them pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Cahaba Pain. Make two requests for the authorized records from Cahaba Pain, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s fibromyalgia at least as likely as not had its onset in service or is otherwise related to service. The examiner must consider the Veteran’s history of hydrocarbon exposure, noted in July 1985, and the complaint of painful joints noted in January 1989. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lumbar spine disability is at least as likely as not related to service. The examiner must consider the Veteran's October 2018 statement to his treatment provider that he injured his back in service and continued to have pain and life limitations. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.