Citation Nr: 21065271 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-13 680 DATE: October 25, 2021 ORDER The application to reopen the previously denied claim for service connection for headaches has been withdrawn. The application to reopen the previously denied claim for service connection for a disability manifested by dizziness has been withdrawn. New and material evidence having been received, the application to reopen the previously denied claim for service connection for anxiety is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for back pain is granted. Entitlement to service connection for an acquired psychiatric disorder, variously characterized as a generalized anxiety disorder, a major depressive disorder, and PTSD, is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. At the January 2020 Board hearing, the Veteran indicated that he wished to withdraw his appeal to reopen the previously denied claim for service connection for headaches. 2. At the January 2020 Board hearing, the Veteran indicated that he wished to withdraw his appeal to reopen the previously denied claim for service connection for a disability manifested by dizziness. 3. An unappealed February 2005 rating decision denied service connection for anxiety. 4. The additional evidence received since the February 2005 rating decision relates to previously unestablished facts necessary to substantiate the claim for service connection for anxiety. 5. An unappealed February 2005 rating decision denied service connection for a back disability manifested by pain. 6. The additional evidence received since the February 2005 rating decision relates to previously unestablished facts necessary to substantiate the claim for service connection for back pain. 7. Resolving reasonable doubt in favor of the Veteran, he has a current acquired psychiatric disorder diagnosisvariously characterized as generalized anxiety disorder, major depressive disorder, and posttraumatic stress disorder (PTSD)that is related to his active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal to reopen the previously denied claim for service connection for headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal to reopen the previously denied claim for service connection for a disability manifested by dizziness have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The February 2005 rating decision that denied service connection for anxiety is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received since the February 2005 rating decision, and the claim for service connection for anxiety is reopened. 5. The February 2005 rating decision that denied service connection for a back disability manifested by pain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. New and material evidence has been received since the February 2005 rating decision, and the claim for service connection for a back disability manifested by pain is reopened. 7. The criteria for service connection for an acquired psychiatric disorder, characterized as generalized anxiety disorder, major depressive disorder, and PTSD, have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to April 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, in January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding, and in light of multiple acquired psychiatric diagnoses reflected in the evidence of record, the Board has expanded and recharacterized the claim as reflected on the title page. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). New and Material Evidence Headaches & Dizziness At his January 2020 Board hearing, the Veteran indicated that he wished to withdraw from appellate review his appeal to reopen the previously denied claims for service connection for headaches and for dizziness. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. A withdrawal becomes effective when it is received by the Board. 38 C.F.R. § 20.205(b)(3). Here, in January 2020, the Veteran indicated his wish to withdraw from appellate review his appeal to reopen the previously denied claims for service connection for headaches and for dizziness. When pending appeals are withdrawn, there is no longer an allegation of error or fact or law with respect to that issue, and dismissal of the appeal is appropriate. 38 U.S.C. § 7105(d). Thus, his appeal to reopen these previously denied claims for service connection is dismissed. New and Material Evidence Anxiety & Back Pain Where a claim has been finally adjudicated, new and material evidence sufficient to reopen the previously denied claim is required. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously received by agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly received evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether the new evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In February 2005, the RO denied service connection for anxiety on the basis that there was no diagnosis of this disorder in the record. In the year following that rating decision, he did not submit any statements expressing disagreement with the denial of service connection for anxiety, nor did he submit any documents concerning the claim that could be considered new and material evidence. Thus, the February 2005 rating decision became final. 38 C.F.R. § 20.1103. Evidence received since the February 2005 rating decision includes private treatment records, VA treatment records, and statements and testimony from the Veteran. As noted above, the credibility of this evidence is presumed. Accordingly, it is found new and material to his claim, and his claim for service connection for anxiety is reopened. Also in February 2005, the RO denied service connection for back pain on the basis that there was no evidence of record to show a current disability and no diagnosis of a back disability in the Veteran's service treatment records (STRs). In the year following that rating decision, he did not submit any statements expressing disagreement with the denial of service connection for back pain, nor did he submit any documents concerning the claim that could be considered new and material evidence. Thus, the February 2005 rating decision is final. 38 C.F.R. § 20.1103. Evidence received since the February 2005 rating decision includes a VA examination, private treatment records, VA treatment records, and statements and testimony from the Veteran. As noted above, the credibility of this evidence is presumed. Accordingly, it is found new and material to his claim, and his claim for service connection for a back disability manifested by pain is reopened. Service Connection Acquired Psychiatric Disorder As noted above, the Veteran's claim for anxiety has been reopened and recharacterized pursuant to Clemons. Additionally, although the RO did not adjudicate this claim on the underlying merits, the Veteran is not prejudiced by the Board proceeding on the merits as the claim is being granted in full. Hickson v. Shinseki, 23 Vet. App. 394 (2010). 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. §§ 1131; 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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. In the current appeal, the Veteran asserts that his acquired psychiatric disorder is related to his service. The medical evidence of record includes diagnoses of generalized anxiety disorder, major depressive disorder, and PTSD, as noted in both VA and private treatment records. See, e.g., May 2015 VA Treatment Record and March 2016, May 2016, November 2016, and August 2017 Private Treatment Records. These diagnoses satisfy the first element of service connection. The Veteran asserts that his acquired psychiatric disorder symptoms began in service and have continued to the present. He reported feeling very anxious and unprepared for his duties in service, as he reports he missed a portion of his training after returning home for his grandfather's funeral and was nervous in his role as a loader on a Sheridan tank and that he dreaded maneuvers. See March 2016 Statement in Support of Claim. He reported developing feelings of anxiety during service that have not gone away and reports that, after leaving service earlier than he wished to, he felt very negatively about himself and felt that he had let his country down. His DD 214 and military personnel records reflect training as an armor crewman and his testimony at his Board hearing detailed how his psychiatric symptoms began in service. His statements regarding his service appear to be consistent with the circumstances, conditions, and hardships of his service. As such, he has satisfied the second element of service connection. The last element of service connection requires medical evidence establishing a linkage between the claimed in-service event and the current symptoms of the variously diagnosed psychiatric disorders. On this question, there is only evidence in favor of the Veteran's claim. A March 2016 statement from the Veteran's mental health treatment provider indicated a diagnosis of generalized anxiety disorder stemming from his military service. The examiner noted that the Veteran's reports of being sent into the field without adequate training, in particular, triggered the initial onset of his generalized anxiety disorder. The Veteran consistently reported anxiety beginning during his military service in the course of receiving treatment for such by both VA and private examiners. See May 2015 VA Treatment Record, January 2016, and September 2016 Private Treatment Records. An independent medical examination is of record from May 2019. The examiner reviewed the Veteran's claims folder, and the examiner noted the Veteran's relevant medical history in providing an opinion. The examiner opined that the Veteran's meets the criteria for an unspecified anxiety disorder and included a lengthy discussion of the Veteran's symptoms. The examiner indicated that the Veteran's loss of his grandfather as well as his fearing for his life when placed in a position for which he was not adequately trained contributed to the onset of his mental health symptoms during service. The opinion included references to and citations of multiple studies addressing the onset of mental health difficulties in difficult situations, such as due to loss or under incredible pressures like those faced by servicemembers. The examiner opined that it is at least as likely as not that the Veteran's anxiety is directly related to his military service, given the Veteran's statements showing an onset of mental health symptoms during service and the chronicity of his symptoms since his service. The Board finds that the Veteran has satisfied the third element of service connection. His acquired psychiatric disorder, diagnosed as a generalized anxiety disorder, a major depressive disorder, and PTSD, has been positively linked to his military service, as the record contains a positive nexus opinion from the private examiner. This medical opinion is not contradicted by any other evidence of record. Although the Veteran has not been afforded a VA examination in relation to his claim, there is sufficient evidence of record to grant the Veteran's claim without scheduling him for a VA examination. The Board emphasizes that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board finds that the evidence of record is in relative equipoise. The Veteran has sufficiently asserted experiencing symptoms of his current acquired psychiatric since active service and these assertions are supported by the medical evidence of record. In resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for an acquired psychiatric disorder is warranted. REASONS FOR REMAND Entitlement to service connection for a back disability manifested by pain The Veteran contends that he has a low back disability associated with his military service. He reports that, while out on maneuvers in an armored personnel carrier in 1975, the vehicle crashed into a tree after going off the road. The Veteran reported bracing for impact and experiencing pain and stiffness in his lower back following this event. He reported that he was not given medical attention after this event but did report back pain at sick call after the fact. See April 2015 Statement. While a specific lower back injury or incident is not documented in his STRs, his STRs do reflect complaints of joint pains in the lower back and lower back pain of no known etiology in December 1975 and March 1976, and laboratory tests were conducted due to suspected rheumatoid arthritis. A January 1976 note in the STRs indicate a diagnosis of arthritis listed as a defect on a physical profile wherein he was noted to be medically qualified for duty with limitations. No defects were noted on his March 1976 separation examination. He reported that he has had lower back pain, stiffness, and other difficulties since his service. At a July 2015 VA examination, the examiner diagnosed lumbosacral strain and low back pain and recorded the Veteran's reports of ongoing back pain since his reported military vehicle accident. The examiner opined that it was less likely than not that the Veteran's lumbar spine disability was related to his active service. As support for this opinion, the examiner pointed to the Veteran's normal separation examination and the absence of any documented back complaints until 2015, nearly 40 years after his separation. The examiner indicated that this negates any continuity of treatment for the claimed disability since service but failed to address the Veteran's reported continuity of symptoms since his separation from service. The examiner relied on the absence of a documented disability in the Veteran's STRs in providing the negative opinion but failed to address the documented back pain complaints from December 1976 and March 1976 and failed to address his contentions regarding a reported in-service vehicle accident. Despite recording the Veteran's reports and contentions, the examiner wholly failed to address whether his current lumbar spine disability is consistent with his contentions of what happened during service and his experience of back pain and symptoms beginning in service and continuing to the present. For this reason, the Board finds the July 2015 VA examination to be inadequate. A new VA examination is necessary to obtain an examination that fully considers the evidence of record and the Veteran's contentions in providing an opinion. Accordingly, this matter is REMANDED for the following action: Schedule an appropriate examination to determine the nature and etiology of any lumbar spine disorder that the Veteran may have. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant lumbar spine pathology shown on examination should be annotated in the examination report. After review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to: (a.) Identify/diagnose any lumbar spine disability that presently exists or that has existed during the appeal period. (b.) Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed lumbar spine disability onset in, or is otherwise etiologically related to, his service. In other words, is any diagnosed lumbar spine disability consistent with the Veteran's reported in service experiences? In expressing these opinions, the examiner is asked to consider and address the Veteran's contentions of back complaints beginning in service and continuing to the present. In this regard, the Veteran's service treatment records contain reports of lower back pain documented in December 1975 and March 1976, and the Veteran has consistently reported back pains following an incident wherein the armored personnel carrier he was riding in crashed into a tree. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a scheduled VA medical examination may impact determinations 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 these matters. 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 A. Goreham 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.