Citation Nr: 20008581 Decision Date: 02/03/20 Archive Date: 02/03/20 DOCKET NO. 18-43 688 DATE: February 3, 2020 ORDER New and material evidence having been received, the claim to reopen entitlement to service connection for posttraumatic stress disorder (PTSD), also claimed as paranoid schizophrenia and depression with nightmares, is granted, and to that extent only is the appeal granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, paranoid schizophrenia and depression, is remanded. Entitlement to an increased rating for lumbar strain, currently rated as 20 percent disabling, is remanded. FINDINGS OF FACT 1. By a November 2014 rating decision, the RO declined to reopen a previous final denial of service connection for PTSD, also claimed as paranoid schizophrenia and depression with nightmares; the Veteran was advised of the RO’s decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s November 2014 decision within one year, but instead filed a claim to reopen in October 2015. 3. Additional evidence received since the RO’s November 2014 decision raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s November 2014 rating decision which declined to reopen a previous final denial of service connection for PTSD, also claimed as paranoid schizophrenia and depression with nightmares, is final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for PTSD, also claimed as paranoid schizophrenia and depression with nightmares, are met. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 2003 to December 2005, with additional Reserve service. This appeal comes before the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs Regional Office (RO). The Board notes that, in October 2016, the RO issued a rating decision which awarded service connection for bilateral lower extremity radiculopathy and denied an increased rating for a lumbar strain and entitlement to a total disability rating based on individual unemployability (TDIU). In December 2017, following a VA examination, the RO issued another rating decision which continued to deny an increased rating for a lumbar strain. In March 2018, the Veteran’s attorney submitted a Notice of Disagreement in which he disagreed with the effective date of the award and the evaluation of the disability for bilateral radiculopathy of the lower extremities and lumbar strain. He also disagreed with the denial of TDIU. Later in March 2018, the Agency of Original Jurisdiction (AOJ) notified the Veteran that his March 2018 NOD relating to bilateral radiculopathy of the lower extremities and TDIU was untimely. In April 2018, the Veteran’s attorney submitted an NOD with that determination. In June 2018, the AOJ clarified that the March 2018 NOD was untimely regarding the claims relating to bilateral radiculopathy of the lower extremities and TDIU but that they accepted his NOD regarding the lumbar strain rating as based on the December 2017 rating decision. Here, the Board notes the attorney’s April 2018 disagreement with the effective date of the award of service connection for a lumbar strain. However, because the Veteran did not appeal the effective date assigned for the grant of service connection for a lumbar strain in the September 2007 rating decision, that decision is final as to the effective date assigned. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. To the extent that the Veteran’s attorney now disagrees with the effective date assigned for service connection for a lumbar strain, such disagreement amounts to a freestanding claim for an earlier effective date. The Court has held that, once there is a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, a claimant is not entitled to subsequently make an earlier effective date claim after a prior final denial was not properly appealed. In August 2018, a Statement of the Case was issued regarding the lumbar strain rating and also erroneously included the effective date of the award and the rating for bilateral radiculopathy of the lower extremities and TDIU. In August 2018, a VA Form 9 was received appealing said issues. In December 2019, a Statement of the Case was issued maintaining that the March 2018 NOD was untimely regarding the claims relating to bilateral radiculopathy of the lower extremities and TDIU. Based on the above, the Board finds that the claims regarding the effective date of the award and the rating for bilateral radiculopathy of the lower extremities and TDIU are not properly before the Board, and therefore will not herein be adjudicated. Regarding the Veteran’s claim for service connection for PTSD, also claimed as paranoid schizophrenia and depression with nightmares, the Board is reopening said claim, as discussed below, and has expanded and recharacterized the issue to include any acquired psychiatric disorder to comport with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Reopening Service Connection for PTSD, Paranoid Schizophrenia and Depression In a November 2014 rating decision, the RO declined to reopen a previous final denial of service connection for PTSD, also claimed as paranoid schizophrenia and depression with nightmares, on the basis that there was no diagnosis. Evidence received since the November 2014 rating decision includes private treatment records documenting that the Veteran was hospitalized for suicidal ideation in January 2015 and reflecting a diagnosis of major depressive disorder. Reserve service treatment records (STRs) were also added to the record. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Regarding the additional STRs received after the November 2014 rating decision, the Board notes that VA regulations provide that, 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156 (c). In this regard, the additional STRs do not contain any information or evidence relevant to, or which would substantiate, the psychiatric disability claim (i.e., they do not show that the Veteran has a current diagnosis). Therefore, the additional STRs are not deemed relevant to the claim on appeal and 38 C.F.R. § 3.156 (c) are not applicable to this claim. However, the Board finds that the private treatment records are not cumulative or redundant of the evidence of record at the time of that decision. They also relate to an unestablished fact necessary to substantiate the claim for service connection for PTSD, also claimed as paranoid schizophrenia and depression with nightmares, and triggers VA’s duty to provide a medical examination. As per Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), this obligation to provide a medical examination raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim is reopened. See 38 C.F.R. § 3.156. REASONS FOR REMAND Service Connection for an Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder, which he claims is related to his experience in combat. The Board notes that his DD Form 214 documents that he participated in combat operations in Iraq from January to October 2003. Notably, the Veteran underwent a VA-contracted psychiatric examination in August 2007, during which he was diagnosed with paranoid schizophrenia and PTSD, which the examiner attributed to his combat experience. However, the RO found that his stressor could not be verified and denied his claim in January 2008. Here, the Board notes that, effective July 13, 2010, VA amended 38 C.F.R. § 3.304 (f) to eliminate the requirement for corroborative evidence of a stressor where a VA mental health expert has diagnosed PTSD and the stressor is related to the veteran’s fear of hostile military or terrorist activity. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) (final rule) (codified at 38 C.F.R. § 3.304 (f)(3)); see also Stressor Determinations for Posttraumatic Stress Disorder, 74 Fed. Reg. 42,617 (Aug. 24, 2009) (proposed rule). However, the Veteran subsequently underwent a VA PTSD examination in February 2012, at which time he was found not to have met the criteria for a diagnosis of PTSD. As discussed above, more recent private treatment records reflect a diagnosis of major depressive disorder. Accordingly, a current examination is required to determine the nature and etiology of any diagnosed acquired psychiatric disorder. Additionally, the record reflects that there may be pertinent, outstanding treatment records. In this regard, the record reflects that the Veteran underwent eight sessions of substance abuse group therapy in 2013 through Ascension Counseling & Mental Health. On remand, appropriate action should be taken to obtain those treatment notes. Increased Rating for a Lumbar Spine Disorder In September 2019, the Veteran’s attorney submitted arguments stating that the Veteran’s lumbar spine disorder had worsened since his last examination in December 2017; namely, that his back spasms had become more frequent and debilitating. Accordingly, a current examination is required prior to adjudication of the claim. The matters are REMANDED for the following action: 1. Take appropriate action to obtain authorization from the Veteran to request his private treatment records, to include records dated in 2013 from Ascension Counseling & Mental Health. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should: (a.) Identify all of the Veteran’s acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time since October 2015, or in close proximity thereto, to include PTSD, paranoid schizophrenia and major depressive disorder, as demonstrated by the evidence of record. (b.) If a diagnosis of PTSD is rendered, the examiner should offer an opinion as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) the result of an in-service stressor. The examiner is advised that the Veteran participated in combat operations in Iraq from January to October 2003, and it is conceded that he was exposed, at a minimum, to the threat of hostile military or terrorist activity. (c.) For each currently diagnosed psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disorder is related to the Veteran’s military service, to include his participation in combat operations in Iraq from January to October 2003. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any diagnosis of an acquired psychiatric disorder or treatment therefor. A rationale for any opinion offered should be provided. 3. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed where possible. The lumbar spine should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, and/or as a result of pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation. An explanation that the flare-up was not observed, standing alone, is not adequate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.Z., 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.