Citation Nr: 20021265 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 13-30 297 DATE: March 25, 2020 ORDER The request to reopen the claim for service connection for an adjustment disorder with mixed disturbances of emotional conduct manifested by depression and anxiety based on the receipt of new and material evidence is granted. REMANDED Entitlement to service connection for a spine disability is remanded. Entitlement to service connection for a left arm disability, to include nerve damage associated with a spine disability is remanded. Entitlement to service connection for a right arm disability, to include nerve damage associated with a spine disability, is remanded. Entitlement to service connection for a left hand disability, to include nerve damage associated with a spine disability, is remanded. Entitlement to service connection for a right hand disability, to include nerve damage associated with a spine disability, is remanded. Entitlement to service connection for disability manifesting in left foot pain, to include nerve damage associated with a spine disability, is remanded. Entitlement to service connection for disability manifesting in right foot pain, to include nerve damage associated with a spine disability, is remanded. Entitlement to service connection for a left leg disability, to include nerve damage associated with a spine disability, is remanded. Entitlement to service connection for a right leg disability, to include nerve damage associated with a spine disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a spine disability, is remanded. Entitlement to service connection for undiagnosed illness or medically unexplained chronic multi-symptom illness due to service during the Persian Gulf War is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Entitlement to a temporary total rating due to convalescence or hospitalization in excess of 21 days is remanded. Entitlement to special monthly compensation at the aid and attendance or housebound level is remanded. Eligibility for assistance in acquiring specially adapted housing is remanded. Eligibility for a special home adaptation grant is remanded. Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is remanded. FINDINGS OF FACT 1. In an April 2007 rating decision, the RO denied the Veteran’s request to reopen a claim of entitlement to service connection for adjustment disorder with mixed disturbances of emotional conduct manifested by depression and anxiety; the Veteran did not submit a Notice of Disagreement (NOD) and new and material evidence was not received by VA within the one-year period following the April 2007 decision. 2. Evidence associated with the claims file since the April 2007 denial is new, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying the Veteran’s claim of entitlement to service connection for adjustment disorder with mixed disturbances of emotional conduct manifested by depression and anxiety is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the issue of entitlement to service connection for adjustment disorder with mixed disturbances of emotional conduct manifested by depression and anxiety; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1990 to December 1990. These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence has been received sufficient to reopen the issue of entitlement to service connection for adjustment disorder with mixed disturbances of emotional conduct manifested by depression and anxiety. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by 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 United States Court of Appeals for Veterans Claims (the Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In an April 2007 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s request to reopen a claim of entitlement to service connection for adjustment disorder with mixed disturbances of emotional conduct manifested by depression and anxiety. The Veteran did not submit a notice of disagreement (NOD) and new and material evidence was not submitted within the one-year period following the denial. Therefore, the April 2007 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran’s claim for service connection for a “nervous condition” was originally denied in a July 1992 rating decision, based on a finding that the Veteran did not develop an acquired psychiatric disorder in service, but rather had a preexisting adjustment disorder, for which service connection cannot be granted. The evidence of record consisted of service medical records and a VA examination. The April 2007 rating decision found that additional VAMC treatment records added to the file since the July 1992 decision did not indicate a current diagnosis of any mental conditions. In support of his request to reopen the previously-denied claim, the Veteran submitted an affidavit in August 2017 in which he argued that he experienced depression and irritability due to chronic and severe pain from a spine disability and its resulting functional limitations. A claim of entitlement to service connection for a spine disability is presently on appeal. This evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. As noted above, the credibility of the evidence is also presumed. Therefore, it is found to be new and material, and reopening the issue of entitlement to service connection for an acquired psychiatric disorder is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a spine disability is remanded. The Veteran contends that he suffers from cervical and thoracic spine disabilities resulting from a motor vehicle accident, falls from his bunk, and an assault that took place during his active military service. For the reasons detailed below, the Board finds that additional development is needed prior to adjudicating this appeal. As an initial matter, review of the record indicates that relevant records remain outstanding and have not yet been sought by VA. A December 2009 private chiropractic record indicates that the Veteran had a past medical history of a work-related injury in 2004, which he described as injuring his lower back while lifting a heavy box. The treatment record states that the Veteran was treated by a chiropractor, Dr. J.S., in early 2005 with good results. On remand, the AOJ should request the Veteran’s private treatment records from Dr. J.S., after obtaining any necessary information and authorization from the Veteran. The claims file includes a letter from April 2014 confirming the Veteran’s entitlement to Social Security disability benefits. The decision itself and the medical records supporting said decision have not yet been obtained from the Social Security Administration. On remand, such records should be obtained. The record contains conflicting medical opinions concerning the etiology of the Veteran’s spine disability. An independent orthopedic opinion was submitted on behalf of the Veteran from January 2017, wherein the physician stated that it is at least as likely that the Veteran’s cervical and thoracic spinal disabilities are the result of in-service injuries. However, while the independent physician noted that the Veteran’s condition “became significantly symptomatic beginning around 2004,” with the condition peaking in 2008, the report makes no mention of the Veteran’s medical history of a work-related lower back injury in 2004, trauma related to an elevator malfunction and rescue in November 2009, or motor vehicle accident in April 2010. See December 2009 and April 2010 treatment records from Comprehensive Chiropractic Center. Therefore, it is unclear whether the independent physician considered such evidence in rendering his opinion, and the opinion is found to provide an insufficient basis for an award of service connection. A VA neurologist opinion was provided in November 2019, wherein the neurologist stated that it is less likely than not that the Veteran’s thoracic spine disability is causally connective to his active military service. While the VA neurologist made note of the Veteran’s 2004 occupational injury, his inaccurate statement in the rationale that there was a “lack of contemporaneous report of trauma when seen at sick bay” during service renders the opinion inadequate for adjudicatory purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). Therefore, on remand, an additional medical opinion should be sought which considers all of the relevant evidence of record. While the case is in remand status, the AOJ should ensure that all of the Veteran’s updated VA treatment records are obtained and added to the claims file. 2. Entitlement to service connection for a left arm disability, to include nerve damage associated with a spine disability is remanded. 3. Entitlement to service connection for a right arm disability, to include nerve damage associated with a spine disability, is remanded. 4. Entitlement to service connection for a left hand disability, to include nerve damage associated with a spine disability, is remanded. 5. Entitlement to service connection for a right hand disability, to include nerve damage associated with a spine disability, is remanded. 6. Entitlement to service connection for disability manifesting in left foot pain, to include nerve damage associated with a spine disability, is remanded. 7. Entitlement to service connection for disability manifesting in right foot pain, to include nerve damage associated with a spine disability, is remanded. 8. Entitlement to service connection for a left leg disability, to include nerve damage associated with a spine disability, is remanded. 9. Entitlement to service connection for a right leg disability, to include nerve damage associated with a spine disability, is remanded. The Veteran claims that his spine disability includes neurologic involvement affecting his upper and lower extremities. Because a decision on the remanded issue of entitlement to service connection for a spine disability could significantly impact a decision on these other issues, they are inextricably intertwined. A remand of the claims for service connection for disabilities affecting the bilateral arms, hands, feet, and legs is threfore needed. 10. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran asserts that he suffers from psychiatric symptoms including but not limited to depression, anxiety, and irritability as a result of his spine disability. Because a decision on the remanded issue of entitlement to service connection for a spine disability could significantly impact a decision on the issue of entitlement to service connection for an acquired psychiatric disorder, they are inextricably intertwined; a remand of the latter claim is therefore required. 11. Entitlement to service connection for undiagnosed illness or medically unexplained chronic multi-symptom illness due to service during the Persian Gulf War is remanded. On an application for service connection submitted in April 2014, the Veteran indicated that he was stationed in the “Gulf” after August 1, 1990. The Veteran’s military personnel records other than his DD-214 have not yet been associated with the claims file. On remand, such records should be obtained and added to the file, to confirm whether or not the Veteran’s active military service involved service in the Southwest Asia theater of operations during the Persian Gulf War. 12. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. At present, the Veteran is not in receipt of service connection benefits for any disability. Because a decision on the remanded issue of entitlement to service connection for a spine disability could significantly impact a decision on the claim for a TDIU, they are inextricably intertwined; a remand of the latter claim is therefore required. 13. Entitlement to a temporary total rating due to convalescence or hospitalization in excess of 21 days is remanded. Because a decision on the remanded issues concerning entitlement to service connection for a spine and other related disabilities could significantly impact a decision on the claim for a temporary total rating, they are inextricably intertwined; the latter claim should therefore be remanded as well. 14. Entitlement to special monthly compensation at the aid and attendance or housebound level is remanded. Because a decision on the remanded issues concerning entitlement to service connection for a spine and other related disabilities could significantly impact a decision on the claim for special monthly compensation, they are inextricably intertwined; the latter claim should therefore be remanded as well. 15. Eligibility for assistance in acquiring specially adapted housing is remanded. Because a decision on the remanded issues concerning entitlement to service connection for a spine and other related disabilities could significantly impact a decision on the claim of eligibility for assistance in acquring specially adapted housing, they are inextricably intertwined; the latter claim should therefore be remanded as well. 16. Eligibility for a special home adaptation grant is remanded. Because a decision on the remanded issues concerning entitlement to service connection for a spine and other related disabilities could significantly impact a decision on the claim of eligibility for a special home adaptation grant, they are inextricably intertwined; the latter claim should therefore be remanded as well. 17. Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is remanded. Because a decision on the remanded issues concerning entitlement to service connection for a spine and other related disabilities could significantly impact a decision on the claim of eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment, they are inextricably intertwined; the latter claim should therefore be remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2013 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for treatment records from a private chiropractor, J.S., who supposedly treated the Veteran around late 2004 and early 2005. Make two requests for the authorized records from J.S. unless it is clear after the first request that a second request would be futile. Note: The Board is using initials to protect the identity of the Veteran. In all correspondence to the Veteran, the full name of the treatment provider (included in a December 2009 treatment report from Comprehensive Chiropractic Center) should be used in order to aid him in responding to the request. 3. Obtain the Veteran’s federal records from the Social Security Administration, to include a copy of any determination concerning the Veteran’s entitlement to SSA disability benefits and the application and medical evidence upon which such determination was based. Document all requests for information as well as all responses in the claims file. 4. After associating all records responsive to the above remand directives with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any spine disability present at any point during the relevant appeal period (December 2010 to the present). The examiner must opine whether any such spine disability is at least as likely as not related to an in-service injury, event, or disease. The examiner’s attention is directed to the following entries in the Veteran’s service treatment records: i. October 1990: complaint of low back pain, aggravated by prolonged standing and sitting, climbing stairs, working, and when rolling onto his left shoulder at night; ii. November 1990: reporting to sick bay following assault when “jumped” by 2-3 individuals; assessed with minor abrasions/muscle strain left arm; iii. November 1990: complaints of diffuse neck pain following motor vehicle accident where he struck his head on the windshield when the car in which he was a passenger hit another moving vehicle; diagnosed with muscle strain, neck. The examiner’s attention is also directed to the following private treatment records from Comprehensive Chiropractic Center: i. December 2009: noting that the Veteran had a past medical history of a work-related injury in 2004, described as injuring his lower back while lifting a heavy box; also with complaint from Veteran of injuries resulting from November 2009 trauma when awkwardly pulled out of a stuck elevator, with initial pain in lower neck, right shoulder, and lower back; ii. April-June 2010: documenting treatment following an April 2010 motor vehicle accident with whiplash injury, subjective reports of pain in neck, upper back, radiating right shoulder, and lower back. [The examiner should not limit their review of the file to the evidence highlighted herein, particularly as additional records are to be added to the file after the date of this Remand.] *The examiner is also asked to provide an opinion as to whether the veteran’s “mild scoliosis (dorsal spine),” noted on the Veteran’s November 1988 enlistment examination, was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. If the scoliosis was at least as likely as not aggravated by service AND it is debatable whether the increase in severity of the scoliosis was due to its natural progress, is it at least as likely as not that any current spine disability (present at any point during the relevant appeal period) is related to his dorsal spine scoliosis? (Continued on the next page)   A rationale must be provided for any opinion expressed. 5. After completing the above, and any additional development deemed necessary in light of the expanded record, readjudicate all issues on appeal. If any of the benefits sought are not granted in full, the Veteran and his representative should be provided with a supplemental statement of the case and given a sufficient opportunity to respond before the appeal is returned to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.