Citation Nr: 20042291 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 06-37 425A DATE: June 22, 2020 ORDER As new and material evidence sufficient to reopen the previously denied claim for a back disability has been received, the application to reopen this claim is granted. Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. An unappealed July 2012 Board of Veterans’ Appeals (Board) decision confirmed a prior denial of service connection for a back disability. 2. Evidence received since the July 2012 Board decision with respect to the claim for service connection for a back disability is not cumulative of the evidence previously of record and does relate to an unestablished fact necessary to substantiate the claim. 3. The preponderance of the evidence is against finding that the Veteran has a back disability other than the congenital defect characterized as spina bifida which had no superimposed disease or injury and no aggravation of the spina bifida beyond its natural progression during service; his L5-S1 radiculopathy has not been shown to be associated with his active duty. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of entitlement to service connection for a back disability has been received. 38 U.S.C. § 1110, 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1967 to July 1969. This matter comes before the Board on appeal from August 2005 and January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas. The Board notes that the Veteran also has submitted another claim for service connection for a psychiatric disorder that was denied in a February 2020 rating decision, however that claim has no bearing on the current appeal. New and Material Evidence—Back Disability Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The evidence of record at the time of the Board’s July 2012 decision included the Veteran’s service treatment records, lay statements, and VA examinations. The basis for the denial of the back disability was a lack of evidence establishing a nexus between the Veteran’s current back disability and an in-service event. Relevant evidence received since the July 2012 decision includes additional VA treatment records, as well as other medical treatment records. Based on a review of the record, the Board finds that the additional evidence is new and material, as it does address an unestablished fact needed to substantiate the claim. Specifically, the additional records contain competent evidence of treatment for a back disability. As such, the evidence does satisfy the low threshold for reopening the claims. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The claim to reopen the previously denied claim for a back disability is, thus, granted. 38 C.F.R. § 3.156(a). Service Connection—Back Disability Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (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). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tendinitis is not listed in § 3.309(a). The Veteran contends that service connection is warranted for a back disability which began during service and is related to service. He reports that he injured his back in service. The Veteran is competent to describe his ongoing symptoms as well as in service duties. His statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has a diagnosis of spina bifida occulta with L5-S1 radiculopathy. The Board notes that spina bifida is defined as a “congenital cleft of spinal column.” The issue is whether the Veteran’s current spina bifida was aggravated by active service. Blanchard v. Derwinski, 3 Vet. App. 300, 301 (1992). “Spina bifida occulta, a congenital condition, which is noncompensable under applicable law.” Firek v. Derwinski, 3 Vet. App. 145, 146 (1992). Spina bifida is a developmental anomaly that is a kind of neural tube defect. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1771 (31st ed. 2007). It is characterized by defective closure of the vertebral arch, through which the spinal cord and meninges may protrude (spina bifida cystica) or not (spina bifida occulta). VA General Counsel has held that service connection may not be granted for disease (but not defects) of congenital, developmental or familial origin. Congenital disease may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. In contrast, congenital or developmental defects are not service connectable in their own right; however, service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). As noted above, the Veteran has a diagnosis of a congenital defect of spina bifida. Therefore, the question for the Board is whether there has been aggravation of such and whether there has been any superimposed injury. The Board finds that service connection is not warranted as there is no aggravation of this congenital disease in service and no additional disability or injury was superimposed upon a defect in-service. As such the Board finds that the Veteran’s current back disability is less likely than not related to active service or aggravated in service and no additional disability or injury was superimposed by a defect in-service. The Veteran’s STRs have been associated with the claims file. The Veteran’s STRs show that he did report low back pain following a spinal examination in-service. A medical record from August 1969 shows the Veteran was noted as having spina bifida, a congenital condition. VA treatment records have been associated with the claims file. Treatment records note chronic back pain which the Veteran reports began during his deployment. The Veteran has also associated his Social Security Administration (SSA) records with the claims file. The SSA records also show ongoing complaints of, and treatment for, back pain. Neither the Veteran’s VA or SSA records, however, show any evidence that the Veteran’s service aggravated his congenital back defect. The benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. After consideration of all the evidence of record the Board finds that the preponderance of the evidence is against finding that service connection for a back disability is warranted. The Board concludes that service connection is not warranted as the Veteran’s current spina bifida was not aggravated by service. The Veteran’s statements regarding his current symptoms and in-service events are credible. While the Veteran reports that his current symptoms of back pain in service have worsened his spina bifida the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier, and he is not competent to provide a nexus opinion in this case. Moreover, there is no competent evidence of record reflecting an association between the Veteran’s L5-S1 radiculopathy and his active duty. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a back disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND Service Connection—Acquired Psychiatric Disorder, To Include PTSD In a July 2017 decision, the Board remanded the Veteran’s psychiatric claim for a new VA examination. The Board directed that the Veteran be afforded a VA examination by a physiatrist or psychologist to determine whether any current psychiatric disorder is related to his military service. An examination was apparently scheduled for March 2019, but the Veteran failed to appear. However, whether or not the Veteran received notification of the place, date, and time of the examination is unclear. There is no evidence in the record that the Veteran was ever made aware of his examination. Proof of notification is essential. Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). To permit full consideration of his medical history, it is also necessary to obtain any outstanding treatment records. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159. Accordingly, this matter is REMANDED for the following action: 1. Obtain available outstanding pertinent VA treatment records. Also, ask the Veteran either to submit all outstanding pertinent private treatment records or to provide enough information (to include any necessary release of information forms) for VA to identify and locate them. If he does the latter, make an initial request with follow-up as necessary. Associate all records procured with the claims file. Notify the Veteran and his representative of any lack of success in obtaining requested records. 2. Then, schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine whether any current psychiatric disorder is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. A copy of the letter notifying the Veteran of day, time, and location of this examination should be uploaded to his electronic VA claims folder. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found, to include PTSD, paranoid personality disorder, major depressive disorder, and schizophrenia. If the Veteran is shown to have PTSD, the examiner should specifically address the stressor(s) from which that diagnosis stems. For each psychiatric disorder other than PTSD found—to include paranoid personality disorder, major depressive disorder, and schizophrenia, the examiner should provide an opinion regarding whether each such diagnosed disorder at least as likely as not (50 percent or greater probability) onset in, or is otherwise related to, his military service. The examiner should specifically discuss the findings and conclusions made at the December 2011 VA psychiatric examination. The examiner should also address the noted diagnoses of PTSD by history and schizophrenia in the Veteran’s VA records. In other words, IF the examiner finds that the Veteran has not met the criteria for a diagnosis of either PTSD or schizophrenia at any time during the course of the appeal, the examiner must explain why the prior diagnoses of schizophrenia and PTSD of record during the appeal is/are not valid. All findings should be reported in detail, and all opinions must be accompanied by a clear rationale. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edward G. Lent 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.