Citation Nr: 21004348 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-00 317A DATE: January 26, 2021 ORDER New and material evidence having been received, the claim for service connection for a lumbar spine disability is reopened. New and material evidence having been received, the claim for service connection for a cervical spine disability is reopened. New and material evidence having been received, the claim for service connection for headaches is reopened. New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED The claim for service connection for a lumbar spine disability is remanded. The claim for service connection for a cervical spine disability is remanded. The claim for service connection for headaches is remanded. FINDINGS OF FACT 1. An unappealed July 2011 rating decision denied service connection for a lumbar spine disability. 2. Evidence received since the July 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability. 3. An unappealed July 2011 rating decision denied service connection for a cervical spine disability. 4. Evidence received since the July 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a cervical spine disability. 5. An unappealed July 2011 rating decision denied service connection for headaches. 6. Evidence received since the July 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for headaches. 7. An unappealed July 2011 rating decision denied service connection for an acquired psychiatric disorder, including paranoia, stress, and anxiety. 8. Evidence received since the July 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder. 9. The probative evidence establishes that the Veteran’s diagnosed acquired psychiatric disorder is related to service. CONCLUSIONS OF LAW 1. The July 2011 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The July 2011 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 3. The July 2011 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 4. The July 2011 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 5. The criteria for service connection for an acquired psychiatric disorder, diagnosed as unspecified anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to March 1970. In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. New and Material Evidence A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). An unappealed July 2011 rating decision denied claims for service connection for anxiety, tension headaches, cervical spine degenerative joint disease, and lumbar spine degenerative changes. The rating decision found that the Veteran did not have a current diagnosis of a psychiatric disorder. The rating decision found that there was no evidence of a nexus between his headaches, his cervical spine disability, a lumbar spine disability, and active service. The Board finds that the evidence received since the July 2011 rating decision is new and material as to the claims for entitlement to service connection for an acquired psychiatric disorder, headaches, cervical spine disability, and a lumbar spine disability. That is, it relates to the unestablished element of an in-service etiology of an acquired psychiatric disorder, headaches, cervical spine disability, and a lumbar spine disability. As this evidence raises a reasonable possibility of substantiating the claims, it is new and material. The claims of entitlement to service connection for a lumbar spine disability, cervical spine disability, headaches, and an acquired psychiatric disorder are therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection for an Acquired Psychiatric Disorder The Veteran contends that he was the victim of a hazing incident during service in which a group of individuals grabbed him and hung him upside down. The Veteran contends that he has a psychiatric disorder as a result of the hazing incident. Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304 (f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). In a June 2010 statement, the Veteran described the alleged incident. He indicated that he was transferred to the USS Independence after boot camp. He stated that five guys in his division attempted to initiate him by ripping off his clothes and hanging him upside down. He stated that someone tried to hang him up by a rope a few weeks after the first incident. He indicated that the person who hung him up was arrested. Several post service treatment records show that the Veteran reported a history of a neck injury when someone tried to hang him during service. In March 2004, the Veteran reported a history of a neck injury in service when someone tried to hang him. A March 2011 VA treatment record reflects that the Veteran reported that a fellow service member attempted to hang him with a rope in 1968. In a July 2011 statement, the Veteran indicated that the person who tried to hang him was court martialed. Email correspondence submitted in January 2020 indicates that the Veteran’s daughter wrote to a service member, D.A. D.A. wrote that he remembered the hanging. The Veteran had a VA examination in February 2020. The examiner diagnosed unspecified anxiety disorder. The examiner opined that, “[a]lthough [the Veteran’s] description of both an in-service hazing and assault by hanging is compelling, does meet criteria for trauma and may have occurred, his current symptoms do not meet the criteria for PTSD. They better meet those for anxiety.” The examination report noted that the Veteran reported brutal hazing by co-workers who hung him upside down and stripped him. He stated that he was later attacked by a co-worker who tried to hang him. The individual reportedly put a rope around the Veteran’s neck and suspended him in the pump room. The Veteran reported that the perpetrator was later convicted while in the Navy. He allegedly threatened to find the Veteran in to seek revenge. The examiner opined that the claimed condition was at least as likely as not caused by the in-service injury or event. The examiner explained that, though the evidence is minimal, there is evidence that the Veteran was the victim of both a hazing and an assault. The examiner stated that it is beyond the capacity of the examiner to verify historical documentation; however, the Veteran does exhibit anxiety specific to the reported in-service assaults. The claimed condition was therefore believed to be as likely as not caused by the in-service event. On review, the Board finds that the Veteran's acquired psychiatric disorder was incurred in or otherwise attributable to service. The lay statement from D.A. corroborates the hazing incident. Further, the February 2020 VA examiner found that the evidence of the reported assault was credible and diagnosed anxiety specific to the in-service assaults. The Board finds that there is competent and probative evidence of a relationship between his currently diagnosed acquired personality disorder and active service; accordingly, service connection is warranted for an acquired psychiatric disorder. REASONS FOR REMAND 1. The claim for service connection for a lumbar spine disability is remanded. 2. The claim for service connection for a cervical spine disability is remanded. The Veteran contends that his lumbar spine and cervical spine disabilities are related to a hanging incident in service. A January 2016 written statement from the Veteran indicated that he was treated for neck pain after getting pulled up by his neck in service. VA treatment records reflect post-service diagnoses of chronic low back pain. The Veteran had a VA examination in March 2011. He reported the onset of neck pain after a fellow service member attempted to hang him in 1968 while aboard a ship. The examiner diagnosed cervical spine degenerative disc disease. The examiner opined that the Veteran’s cervical spine disability is less likely than not related to service. The rationale for the opinion was that there was no documentation in the service treatment records regarding a complaint of neck pain or treatment for a neck condition. Although a neck condition was not documented in service, the Veteran’s statements about a hazing incident in which he was pulled up by his neck are considered competent and credible. The examiner did not consider the history of in-service injury and symptoms with respect to his neck disability. The March 2011 examination also did not include an opinion about the etiology of the Veteran’s lumbar spine condition. The claims for service connection for lumbar and cervical spine disabilities are being remanded for new VA examinations. 3. The claim for service connection for headaches is remanded. The Veteran contends that his headaches are related to a hazing incident in service. Alternatively, he asserts that his headaches are caused or aggravated by his now service-connected acquired psychiatric disorder. The Board has found the Veteran’s reported stressor of an in-service hazing incident involving being hung up by his neck to be credible. The Veteran had complaints of headaches and a head injury in service. A September 1968 service treatment record reflects that the Veteran struck his head on a door frame. He was diagnosed with a laceration on his head. In November 1968, the Veteran complained of headaches and left hand and left side numbness. The Veteran had a VA examination in March 2011. The examiner diagnosed tension headaches and opined that tension headaches are less likely than not related to service. The examiner noted that service treatment records do not document an assault on the Veteran. The examiner noted that a November 1968 entry showed a sinus headache and URI. It was noted that a private neurology record dated in February 1974 showed that the Veteran was involved in a head-on collision with another vehicle and reported headache since that incident. No examiner has addressed whether the Veteran’s headaches are caused or aggravated by his acquired psychiatric disability. The case is being remanded for a VA examination and medical opinion. Finally, the Veteran has reported VA outpatient treatment for his disabilities. The most recent VA treatment records are dated in November 2019. The records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2019 to the present. 2. Schedule the Veteran for a VA examination for his lumbar spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is a lumbar spine disability at least as likely as not related to service, including being pulled up by his neck during a hazing incident? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is advised that the Veteran's report of a hazing incident in service is considered competent and credible. The incident should be considered in the opinion. The Veteran described the incident in the September 2020 testimony. 3. Schedule the Veteran for a VA examination for his cervical spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is a cervical spine disability at least as likely as not related to service, including being pulled up by his neck during a hazing incident? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is advised that the Veteran's report of an assault in service is considered competent and credible. The incident should be considered in the opinion. The Veteran described the incident in the September 2020 testimony. 4. Schedule the Veteran for a VA examination for his headaches. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is a headache disability at least as likely as not related to service, including assault in service and his complaints of headaches in service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner is advised that the Veteran’s report of an assault in service is considered competent and credible. The incident should be considered in the opinion. (b) Is a headache disability at least as likely as not proximately due to service-connected anxiety disorder? (c) Is a headache disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected anxiety disorder? JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.