Citation Nr: 20021659 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-42 288 DATE: March 26, 2020 ORDER New and material evidence having been received, the claim for reopening entitlement to service connection for a low back disorder is granted. New and material evidence having been received, the claim for reopening entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and posttraumatic stress disorder (PTSD) is granted. New and material evidence not having been received, the claim for reopening entitlement to service connection for a right shoulder disorder is denied. REMANDED Entitlement to service connection for low back disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and PTSD is remanded. FINDINGS OF FACT 1. The March 2009 rating decision denied service connection for shoulder and psychiatric disorders and the April 2009 rating decision denied service connection for a lumbar disorder; the Veteran was notified of these decisions those same months, but he did not initiate an appeal and new and material evidence was not received within one year of the notice of those decisions. 2. The evidence received since the March and April 2009 rating decisions, when considered by itself or in connection with evidence previously assembled, does relate to unestablished facts necessary to substantiate the claims, and does raise a reasonable possibility of substantiating the claims for service connection for a low back disorder and an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and PTSD. 3. Evidence received since the March 2009 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim for entitlement to service connection for a right shoulder disorder, and does raise a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. The March and April 2009 rating decisions that denied the Veteran’s claims for entitlement to service connection for a low back disorder, shoulder disorder, and acquired psychiatric disorder are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the March 2009 rating decision is new and material, and the criteria to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The evidence received since the April 2009 rating decision is new and material, and the criteria to reopen the claim for entitlement to service connection for a low back disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The evidence received since the March 2009 rating decision is not new and material, and the criteria to reopen the claim for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to December 1989. This appeal to the Board of Veterans’ Appeals (Board) is from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initiated appeals for several other issues that were also denied in the May 2012 rating decision but in his November 2015 substantive appeal he limited the appeal to the claims involving his low back, right shoulder, and acquired psychiatric disorder. He also requested a video conference hearing, but he withdrew this request in March 2019. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a low back disorder. In an April 2009 rating decision, the RO denied the claim for entitlement to service connection for a low back disorder based on the determination that there was no evidence of a chronic low back disorder on the service separation examination, and there was no nexus evidence linking the current disorder to service. The Veteran did not submit a notice of disagreement with the April 2009 rating decision. No new and material evidence was received by VA within one year of the issuance of the April 2009 rating decision. As such, the April 2009 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). The Veteran filed his claim to reopen in March 2011. Since the final April 2009 rating decision, the Veteran has submitted lay statements from an individual who knew him before and after service and observed he had complained of back problems after he returned from service. See July 2012 Buddy/Lay Statements. Thus, this evidence indicates that the Veteran may have had ongoing, chronic back problems since service. The Board finds this evidence meets the low threshold for reopening the claim and would trigger VA’s duty to provide an examination in adjudicating the claim. Accordingly, this new evidence raises a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disorder. See Shade, 24 Vet. App. 110. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and PTSD. In a March 2009 rating decision, the RO denied the claim for entitlement to service connection for an acquired psychiatric disorder based on the determination that there was no evidence of a disorder during service, the Veteran did not identify an in-service stressor, and there was no evidence linking a current diagnosis to service. The Veteran did not submit a notice of disagreement with the March 2009 rating decision. No new and material evidence was received by VA within one year of the issuance of the March 2009 rating decision. As such, the March 2009 rating decision became final. The Veteran filed his claim to reopen in March 2011. Since the final March 2009 rating decision, the Veteran has submitted lay statements from an individual who knew him before and after service and observed he had changed since returning from service. His cousin reported that the Veteran isolated himself, did not like crowds, and was moody and short-tempered. See July 2012 Buddy/Lay Statements. Thus, this evidence indicates the Veteran may have had mental health symptoms since he separated from service. The Board finds this evidence meets the low threshold for reopening the claim and would trigger VA’s duty to provide an examination in adjudicating the claim. Accordingly, this new evidence raises a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder. See Shade, 24 Vet. App. 110. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right shoulder disorder. In a March 2009 rating decision, the RO denied the claim for entitlement to service connection for a shoulder disorder based on the determination that there was no evidence of it during service and there were no post-service complaints or diagnoses. The Board notes that the evidence considered in March 2009 includes the Veteran’s service treatment records that are silent for shoulder complaints, findings, or diagnosis. The November 1989 separation examination revealed no abnormality in the musculoskeletal system and the Veteran noted on the medical history report that he had not had any shoulder pain. See February 2016 STR – Medical. Post-service treatment records were also silent for right shoulder complaints or findings. See March 2008, October 2008, November 2008, and February 2009 Medical Treatment Record – Government Facility. The Veteran did not submit a notice of disagreement with the March 2009 rating decision. No new and material evidence was received by VA within one year of the issuance of the March 2009 rating decision. As such, the March 2009 rating decision became final. The Veteran filed his claim to reopen in March 2011; however, since the final March 2009 rating decision no evidence has been submitted that meets the low threshold for reopening the claim. Medical records received since the March 2009 rating decision continue to show no evidence of right shoulder complaints or findings. See July 2012 Medical Treatment Record – Non-Government Facility and October 2012 Medical Treatment Record – Government Facility. Furthermore, the lay statements from his wife and cousin did not make any reference to a shoulder problem. See July 2012 Buddy/Lay Statement. Therefore, while the evidence added to the record is new, it is not material concerning entitlement to service connection for a right shoulder disorder. For this reason, the claim is not reopened. REASONS FOR REMAND 1. Entitlement to service connection for low back disorder is remanded. The Veteran contends that his low back disorder is related to service. His service treatment records noted complaints of low back pain on several occasions and even though his service separation examination and medical history did not note any back problems, the 2012 lay statements note he continued to have problems after service. The history of his low back problem is complicated by the fact that a May 2008 treatment record indicates he had a back injury in 1993 that was also followed by surgery that same year. See October 2008 Medical Treatment Record – Government Facility. The Veteran’s representative also raised the theory that the Veteran’s current low back disorder may be secondary to his service-connected knee disability. A VA examination and opinion are needed to determine if any current low back disorder is related to service or was caused or aggravated by his service-connected knee disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and PTSD is remanded. The Veteran indicated on his November 1989 service separation medical history report that he had trouble sleeping and nervous trouble. See STR – Medical. Lay statements indicate he exhibited various symptoms when he returned from service. He also has current diagnoses of major depressive disorder, bipolar disorder, mood disorder, and PTSD. See October 2012 Medical Treatment Record – Government Facility. An April 2010 treatment record also indicates the Veteran’s mood disorder may be secondary to pain. This evidence triggers the need to obtain opinions for direct and secondary service connection. Concerning the diagnosis of PTSD, the Veteran had a PTSD consult in February 2008 and events he reported happening in service were seeing servicemen commit suicide by jumping overboard, seeing dead pilots from aircraft that went down, and watching a friend die of alcohol poisoning in Thailand. See March 2008 Medical Treatment Record – Government Facility. The Veteran should be asked to provide more specific information so these stressors may be corroborated, and a determination may be made on whether any of these events is related to the diagnosis of PTSD. Ongoing VA treatment records since August 2011 should be obtained and added to the record. These matters are REMANDED for the following action: 1. Associate with the claims file ongoing VA treatment records since August 2011 related to the Veteran’s lumbar and psychiatric disorders. 2. Ask the Veteran to provide more specific information, such as dates and names, associated with the in-service stressors he reported on his February 2008 PTSD consult. 3. If the Veteran provides sufficient detail to allow for attempted corroboration of any reported stressors, appropriate action should be taken to corroborate them, including any appropriate requests for verification from JSRRC. 4. After the above development has been completed, afford the Veteran a mental health examination by a VA psychiatrist or psychologist. The Veteran’s claims file must be reviewed by the examiner in conjunction with the examination. The examiner should specifically determine whether the Veteran has PTSD. The examiner should also note any psychiatric diagnoses other than PTSD found on examination and the claims file. The examiner should then address the following: a) If PTSD is diagnosed, opine whether it is at least as likely as not (50 percent probability or greater) related to an in-service stressor. b) For every diagnosis other than PTSD, opine whether it is at least as likely as not related to service to include his report of nervousness on his separation medical history report. c) The examiner should provide the rationale for all opinions expressed. If an opinion cannot be offered without resorting to speculation, then this should be noted in the examination report and the clinician should explain why. 5. After # 1 is completed, schedule the Veteran for a VA examination to determine if he has a low back disorder related to service. The claims file should be made available to and reviewed by the clinician, and all pertinent findings should be reported. The clinician should the address the following: a) Does the Veteran have a low back disorder that is at least as likely as not (50 percent probability or greater) related to service, to include the complaints noted therein? b) Does the Veteran have a low back disorder that is at least as likely as not (i) caused or (ii) aggravated by his service-connected knee disability? c) The examiner should provide the rationale for all opinions expressed and take into consideration the lay statements that indicated he continued to have back problems after service. If an opinion cannot be offered without resorting to speculation, then this should be noted in the examination report and the clinician should explain why. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.