Citation Nr: 20027770 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 16-58 890 DATE: April 21, 2020 ORDER New and material evidence has been submitted and the claim to reopen service connection for a psychiatric disorder is granted. New and material evidence has been submitted and the claim to reopen service connection for a low back disorder is granted. REMANDED Entitlement to service connection for a traumatic brain injury is remanded. Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In a May 1982 rating decision, the RO denied service connection for a low back disorder. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 2. In a December 2005 rating decision, the RO denied service connection for a psychiatric disorder and declined to reopen a claim for service connection for a low back disorder. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 3. In a September 2008 rating decision, the RO declined to reopen claims for service connection for a low back disorder and for a psychiatric disorder. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 4. In an April 2011 rating decision, the RO declined to reopen claims for service connection for a low back disorder and for a psychiatric disorder. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 5. Evidence received since April 2011 rating decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claims of entitlement to service connection for a psychiatric disorder and a low back disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2019). 2. New and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a low back disorder. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2019).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). New and Material Evidence The Veteran seeks to reopen several previously denied service connection claims. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2019). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis that there was no new and material evidence to reopen the claim, and evidence submitted since prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision markers. 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 (2019). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically ot the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder. In a December 2005 rating decision, the RO denied service connection because the evidence showed did not show the disorder during service or a nexus to service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In a September 2008 rating letter, the RO declined to reopen a claim for service connection because there was no nexus shown between the disorder and service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In an April 2011 rating letter, the RO declined to reopen a claim for service connection because the evidence did not show in-service incurrence. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The relevant evidence at the time of the 2011 rating decision included the Veteran’s service treatment records (STRS), which did not show treatment or complaints of any psychiatric disorder. Also of record were February 2005 correspondences submitted by the Veteran, and September 2005 private treatment records, November 2005 VA treatment records. The Veteran’s private treatment records show that he began receiving treatment for a psychiatric disorder in 1981. The private treatment notes note impressions of depression, dysthymic disorder, paranoid personality disorder, mixed personality disorder with paranoid and explosive features. The Veteran’s VA treatment also notes treatment for a psychiatric disorder beginning in 2005. Evidence submitted after the April 2011 decision includes the following Board hearing testimony. At the hearing, the Veteran reported an assault during service after which he was hospitalized. He also testified in the January 2020 hearing that he started suffering from a mental disorder in 1977 or 1978 while he was in service. September 2019 VA medical treatment also showed diagnoses of bipolar disorder, anxiety disorder, ADHD, and PTSD. 2. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a low back disorder. In a May 1982 rating letter, the RO denied service connection because there was no evidence of a disorder during service or at discharge. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In a December 2005 rating decision, the RO declined to reopen a claim for service connection because the evidence showed the disorder began in 1980, after service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In an April 2011 rating decision, the RO declined to reopen a claim for service connection because the evidence did not show in-service incurrence. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The relevant evidence at the time of the April 2011 rating decision included the Veteran’s service treatment records (STRS). The STRs did not show any treatment or complaints of a back disorder. Private and VA medical records dated since 2008 note back pain began after a motor vehicle accident in August 2008. A May 2008 VA record noted the Veteran reported chronic low back pain after a 900 pound box fell on him. The evidence submitted after the April 2011 decision includes the January 2020 hearing testimony. The Veteran endorsed that he had a back injury during service and symptoms since that time. The Board finds that the new and material evidence has been presented. The hearing testimony is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the an in-service injury. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. For the reasons above, the Veteran’s claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury is remanded. This issue is remanded to secure a VA examination. The VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The RO did not provide the Veteran with an examination regarding a traumatic brain injury. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability of recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). At the January 2020 hearing, the Veteran testified that he was assaulted during service when he was knocked unconscious while walking down the street. The Veteran further testified that he was told by doctors that he has residuals of a TBI. The Veteran stated that his current symptoms are seeing smoke and smelling fire. The Veteran testified that he see’s everything as foggy and that the symptoms onset in 1979 or 1980. VA and private treatment records indicate some treatment and investigation of a seizure disorder. Because there is evidence of recurrent symptoms, a reported in-service event, and an indication that the current disability may be associated with the in-service event, remand for a VA examination is required. 2. Entitlement to service connection for a psychiatric disorder is remanded. This issue is also remanded to secure a VA examination. As noted above, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Again, the RO did not provide the Veteran with an examination regarding any acquired mental disorder. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service even, injury or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. At the January 2020 Board hearing the Veteran testified that he started suffering from a mental disorder while he was in the military in either 1977 or 1978. The Veteran also testified that he is diagnosed with bipolar disorder, anxiety, obsessive compulsive personality disorder, depression, and insomnia. A September 2019 treatment note listed the Veteran’s current diagnoses as bipolar disorder, polysubstance use disorder, anxiety disorder, and ADHD and PTSD per patient report. Medical records from 1981 indicate treatment for psychiatric disorders within a few years of service discharge. Because there is evidence of current symptoms of a disability, a reported in-service event, and an indication that the current disability may be associated with the in-service event, remand for a VA examination is required. 3. Entitlement to service connection for a low back disorder is remanded. This issue is also remanded to secure a VA examination. As noted above, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Again, the RO did not provide the Veteran with an examination regarding residuals of a lower back injury. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service even, injury or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. At the January 2020 Board hearing, the Veteran endorsed that he sustained a back injury during service during the above-noted assault. The Veteran testified that on a scale of 1 to 10, he is constantly at a six or seven level of pain, depending on the day. Chronic low back pain was noted as early as 2005. Because there is evidence of current symptoms of a disability, a reported in-service event, and an indication that the current disability may be associated with the in-service event, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his TBI. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s TBI had onset in, or is otherwise related to, active military service. The examiner must address the following: 1) the Veteran’s assertions of an in-service injury due to an assault; 2) July 2005 VA records noting a head injury in 1968 or 1968; 3) all other relevant treatment records; 4) the Veteran’s lay statements. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of a psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed psychiatric disorder had onset in, or is otherwise related to, active military service. The examiner address the following: 1) 1981 private medical records; 2) VA and private treatment records noting various diagnoses; and 3) the Veteran’s lay statements regarding in-service onset of a psychiatric disorder, incidents prior to active duty to include a sexual assault and motor vehicle accident, and post-service incidents, to include the 2008 motor vehicle accident, and a 900 pound box falling on him. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of a low back injury. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back injury had onset in, or is otherwise related to, active military service. The examiner address the following: 1) VA and private treatment records noting chronic low back pain; and 2) the Veteran’s lay statements regarding in-service assault, pre-service incidents, including a motor vehicle accident, and post-service incidents, to include the 2008 motor vehicle accident, and a 900 pound box falling on him. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B.White, 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.