Citation Nr: 20028850 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-51 426 DATE: April 24, 2020 ORDER New and material evidence has not been presented, and the Veteran’s request to reopen the previously denied claim for entitlement to service connection for a lumbar spine condition is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for a cervical spine condition is denied. Service connection for a left foot condition is denied. Service connection for a gastrointestinal disorder, to include a choking condition is denied. FINDINGS OF FACT 1. An August 2013 rating decision denied the Veteran’s claim for service connection for a lower back condition. The Veteran did not file a notice of disagreement or submit new and material evidence within a year of the rating decision, and evidence received since the August 2013 rating decision does not raise a reasonable possibility of substantiating the claim for service connection for a lumbar spine condition. 2. The weight of the evidence is against a finding that the Veteran’s reported stressors have been corroborated. 3. The weight of the evidence is against a finding that the Veteran’s cervical spine condition began during active service; or is otherwise related to an in-service injury or disease. 4. The weight of the evidence is against a finding that the Veteran’s left foot condition began during active service; or is otherwise related to an in-service injury or disease. 5. The weight of the evidence is against a finding that the Veteran’s gastrointestinal disorder began during active service; or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the August 2013 rating decision, and the Veteran’s request to reopen his previously denied claim for service connection for a lumbar spine condition is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for a cervical spine condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for a left foot condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for a gastrointestinal condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to July 1983. The Veteran’s claim of entitlement to service connection for a choking condition has been recharacterized, to include consideration of all gastrointestinal disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Reopening Claims Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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. 38 C.F.R. § 3.156(a). 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it 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. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Veteran’s claim for service connection for a low back condition was denied in August 2013. The Veteran neither appealed the August 2013 rating decision, nor submitted new and material evidence within a year of the August 2013 rating decision. See 38 C.F.R. § 3.156(b). Thereafter, in May 2014, the Veteran petitioned to reopen the previously denied low back claim. Although the Veteran filed a new claim within one year from the August 2013 rating decision, no new evidence was submitted within that one-year period. Therefore, the August 2013 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). At the time of the August 2013 rating decision, the evidence of record did not contain evidence that there was an in-service incurrence related to the low back, or that the current lumbar spine condition is otherwise related to his active duty service. In his April 2015 notice of disagreement, the Veteran stated that he would like VA to take another look at his service records because he was 17 and healthy when he joined the military and had medical issues when he separated from the military. The evidence of record at the time of the August 2013 rating decision consisted of the Veteran’s service treatment records (STRs), VA treatment records which showed a diagnosis for degenerative arthritis of the lumbar spine, and private treatment records. Evidence received after the August 2013 rating decision includes VA treatment records, which show complaints of low back pain. Here, the Veteran has not submitted any new evidence that suggests he injured his low back during his active duty service, that his chronic lumbar spine disability had its onset during his active duty service, or that there is a medical nexus between his lumbar spine disability and his active duty service. Additional evidence has been submitted since the Veteran’s claims were previously denied; however, this evidence is not new in that it was already known at the time of the previous denial that the Veteran had a diagnosis for a lumbar spine disability and the evidence is not material in that it does not suggest an in-service incurrence or a medical nexus. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described, the evidence that has been added since the previous denial for service connection for a lumbar spine condition does not reach that threshold with regard to the issues on appeal. See Shade, 24 Vet. App. 110, 118. Essentially, even if the Board reopened the claim, no duty to assist would be triggered. Accordingly, the request to reopen the previously denied claim for service connection for a lumbar spine condition is denied. Service Connection 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. Service connection requires competent evidence showing: (1) the existence of a 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In addition to the above stated criteria needed to generally establish service connection, service connection for PTSD has its own requirements. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The evidence required to establish a claimed in-service stressor depends on the nature of both the stressor and the Veteran’s service. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Here, the Veteran does not contend he was in combat in service and available personnel records do not show he received any combat medals. Thus, 38 C.F.R. § 3.304(f)(2) is not applicable in this case. Without combat participation, if the Veteran’s claimed stressor is related to a fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). However, the Veteran’s reported stressor is not related to fear of hostile military or terrorist activity. As such, the Veteran’s reported stressor must be corroborated by evidence beyond just his statements. 1. Service connection for PTSD is denied. The Veteran asserts that he is entitled to service connection for PTSD. The Veteran has alleged three different stressor events. The Veteran’s STRs and military personnel records do not contain any complaints, treatment, or diagnosis for any mental disorder; nor do they document any of the Veteran’s alleged stressors. The Board notes that the Veteran’s VA treatment records indicate he has been diagnosed with PTSD. See VA Treatment Record dated April 21, 2016. A February 2017 correspondence from a VA psychiatrist stated that the Veteran was a participant of the PTSD Clinical Team (PCT). The letter stated that his reported pattern of problems and symptoms appeared to be consistent with individuals who suffer from PTSD. The letter invited the Veteran to attend a PCT orientation, which would help in finding the best treatment. The Veteran has reported the following stressors, (1) while stationed in Germany, he went to a nightclub that was bombed; (2) that he witnessed a rape and was threatened by the perpetrator to keep quiet; and (3) he was assaulted during basic training. On February 18, 2015, the regional office (RO) sent the Veteran correspondence, requesting additional information about the bombing of the German nightclub and the witnessing of a sexual assault. He was given 30 days to respond and provide additional details of each event. The Veteran did not provide additional details within 30 days, and a March 19, 2015 VA memorandum notified the Veteran that the stressor details as provided, were insufficient to meet the minimum level of detail needed for VA to seek assistance from the U.S. Army and Joint Services Records Research Center (JSRRC). The Board notes that the Veteran did not report that he was assaulted during basic training, until a March 21, 2015 correspondence to VA. The RO conducted some research with the details provided by the Veteran. The Veteran alleged that in January 1982, after arriving in Germany, he went to a nightclub. While in the nightclub, a bomb went off and destroyed half of the club’s structure causing the roof to collapse. The March 19, 2015 VA Memo stated that the Veteran’s military personnel records show that he did not arrive in Germany, until May 17, 1982. Further, there was no evidence that a bombing took place in Germany in 1982, or that even if there was a bombing, that the Veteran was there. The Veteran also alleged to have seen a woman being raped by a soldier in March 1983 and was threatened by the perpetrator not to say anything; however, there was no evidence of this event during his active duty service. After the March 2015 VA Memo explained that the stressors could not be corroborated and the information was insufficient to send to the JSRRC, the Veteran asserted a new stressor; that he was physically assaulted during basic training and provided additional details of the nightclub bombing and the witnessing of a sexual assault. After the RO reviewed the more detailed stressor statements and the new report of an alleged stressor, on April 20, 2015, the RO once again sent the Veteran correspondence requesting additional information about the specific details of the personal trauma incidents that resulted in PTSD. The Veteran was given 30 days to respond; however, VA has not received any additional details regarding any of the alleged stressors. The Board emphasizes that the duty to assist a claimant is not a one-way street, and in this case the Veteran has failed to cooperate in the development of his claim. Olsen v. Principi, 3 Vet. App. 480 (1992); 38 C.F.R. § 3.655. The Veteran’s STRs and military personnel records are silent for any reports of being at a nightclub that was bombed, witnessing a sexual assault and being threatened to stay quiet, or being assaulted during basic training. While the Veteran’s posts-service VA treatment records include a diagnosis for PTSD, there is no evidence of a verifiable stressor in service. Here, the Veteran has received two requests for additional information regarding his three alleged stressors, but has not been able to provide any meaningful details that are able to corroborate any of his alleged stressors. Being that there is no credible supporting evidence to corroborate that he was present at a nightclub bombing, witnessed a sexual assault, or was the victim of a physical assault during basic training, his purported stressors cannot be corroborated at this time. Service connection for PTSD is not established on the basis of fear of enemy hostile action, because the evidence has not shown that he was present where a bombing took place, or any other location where he would have been subjected to hostile military or terrorist activity. Here, although the Veteran submitted evidence that he has a current diagnosis for PTSD by a VA psychiatrist, his claimed stressors have not been corroborated. To the extent the Veteran has been diagnosed with PTSD, the evidence fails to show that such a condition is the result of his military service. The Board notes that the Veteran’s VA treatment records indicate that his PTSD is due to childhood physical and emotional abuse and military-related noncombat trauma. Although there has been a suggestion that his PTSD is partly due to military related noncombat trauma, as discussed, he has not provided enough information to corroborate any of his alleged stressors. Even if the Board were to accept the Veteran’s assertion of his non-combat stressors, there is still no medical evidence of record supporting a nexus between his active duty service and his current diagnosis. Accordingly, the weight of the evidence is against the claim and service connection for PTSD, is denied. 2. Service connection for a cervical spine condition is denied. The Veteran asserts that his cervical spine condition is due to his active duty service. He has not specifically stated why he believes he is entitled to service connection for his cervical spine condition, other than that he entered the military a young and healthy individual and separated with this medical condition. The Veteran is currently diagnosed with cervical mild spondylosis. The Veteran’s STRs show that he complained of a tender right cervical area in August 1980; however, this was not a complaint of cervical spine pain, but rather a complaint that had to do with his submaxillary nodes and an ear problem. After a careful review of the Veteran’s post-service medical records, the first complaint of neck pain was in July 1996, about thirteen years after his separation from the military. He was diagnosed with cervical spondylosis in 2008 following a complaint of neck pain of one year duration. The Board also notes that the Veteran has not submitted any medical evidence supporting his assertion that his cervical spine condition was due to his active duty service. VA has a duty to assist a claimant in the development of facts pertinent to the claim, which includes a duty to provide a medical examination or medical opinion in some circumstances. Such an examination must be conducted when the information and evidence of record does not contain sufficient evidence to decide the claim, but (1) contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). In McLendon, the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, however, the evidence of record, including VA treatment records, shows a diagnosed cervical spine condition; there is no evidence that the Veteran suffered an event, injury or disease in service relating to the cervical spine; and the evidence does not indicate that the claimed cervical spine condition may be associated with service. Thus, the McLendon standard has not been met. In Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010), the Federal Circuit held that a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination. Thus, to the extent that the Veteran’s claim for service connection was an implicit statement alleging such a nexus, it is not sufficient to warrant a VA examination, and there is no other evidence indicating that he has current neck disorder or symptoms that may be associated with service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a neck disorder. The benefit of the doubt doctrine is not for application, and entitlement to service connection for a neck disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for a left foot condition is denied. The Veteran asserts that his left foot condition is due to his active duty service. He has not specifically stated why he believes he is entitled to service connection for his left foot condition, other than that he entered the military a young and healthy individual and separated with this medical condition. The Veteran’s STRs show that an object dropped on the Veteran’s left foot in June 1981, with some redness; a radiographic report showed a normal left foot. There were no further reports of left foot pain and the Veteran did not undergo a separation physical because a determination was made that one was not required. The Veteran’s VA treatment records show that he complained of left heel plantar callus and pain in May 2008. He was diagnosed with keratoma on his left plantar heel in June 2008, approximately 25 years post service. The treatment records also show that he has been diagnosed with paresthesia in his feet. The Veteran was afforded a VA examination in February 2015. After an in-person examination and a review of the Veteran’s claims file, the examiner opined that the Veteran’s left foot condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner explained that they were unable to find any medical care for a chronic left foot condition in the Veteran’s STRs. The examiner noted the in-service left foot pain due to direct injury and the normal x-ray results. The examiner determined that the contusion resolved while in service. The examiner noted that the Veteran was seen by Podiatry for left heel plantar pain in 2008 and was diagnosed with keratoma; but did not have keratoma during his active duty service. Here, there is no competent medical evidence of record that relates any current left foot condition to his active duty service. Consideration has been given to the Veteran’s assertion that his left foot condition is the result of his active duty service. He is clearly competent to report symptoms of pain as well as injury. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran may describe left foot pain, he lacks the medical training or qualification to opine as to its etiology. Id. His opinion therefore cannot undermine the medical opinion of record. Here, given the Veteran’s assertion of left foot pain, he was afforded a VA examination to ascertain whether he had a current diagnosis for a left foot condition and whether it was related to his active service. Unfortunately, the VA examiner provided a negative nexus opinion and service connection has not been established. Accordingly, service connection for a left foot condition is denied. 4. Service connection for a choking condition is denied. The Veteran asserts that his choking condition is due to his active duty service. He has not specifically stated why he believes he is entitled to service connection for his choking condition, other than that he entered the military a young and healthy individual and separated with this medical condition. Although the January 2015 VA examiner determined that the Veteran did not have a current diagnosis for any intestinal condition, he indicated that the Veteran had signs and symptoms of occasional diarrhea, nausea, and vomiting. Further, the examiner indicated that the Veteran had signs and symptoms due to an esophageal condition, to include gastrointestinal reflux disease (GERD). The Veteran reported abdominal pain and 4 to 5 bowel movements a day, with watery stool. Thus, the Board concedes a current diagnosis. The Veteran’s STRs show that he complained of choking and vomiting, on and off for three days in August 1980 and was diagnosed with sporadic colitis. Post-service treatment records reveal a consistent denial of vomiting. See e.g, July 1996, April 2014 VA treatment record and December 2012 and May 2013 private treatment record. During a January 2015 VA sleep study, the Veteran reported choking on awakening solely as it related to his sleep disordered breathing. The Veteran was afforded a VA examination in January 2015. After an in-person examination and a review of the Veteran’s claims file, the examiner opined that the claimed gastrointestinal condition was less likely than not incurred on or caused by the claimed in-service injury, event, or illness. The examiner explained that the STRs documented one episode of choking and vomiting, but there were no records that documented a chronic history of choking or vomiting following the August 1980 complaint. Further, the Veteran’s 2013 colonoscopy was normal. The Board notes that the Veteran’s post-service treatment records do not show that he ever complained, received treatment for, or was diagnosed for any choking condition or colitis. Consideration has been given to the Veteran’s assertion that his choking condition is the result of his active duty service. However, while the Veteran is competent to describe symptoms of choking, he lacks the medical training or qualification to either render a diagnosis, or opine as to its etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His opinion therefore cannot undermine the medical opinion of record. Here, given the Veteran’s assertion of a choking condition, he was afforded a VA examination to ascertain whether he had a current diagnosis for a gastrointestinal condition and whether it was related to his active service. Unfortunately, the VA examiner provided a negative nexus opinion and service connection has not been established. Accordingly, service connection for a choking condition is denied. Katherine Q. Forde Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.