Citation Nr: 21069262 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-15 316 DATE: November 18, 2021 ORDER 1. The appeal to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. 2. Entitlement to service connection for a low back disability is denied. 3. Entitlement to service connection for a right hip disability, to include as secondary to a low back disability, is denied. REMANDED 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for PTSD is remanded. 6. Entitlement to service connection for colon cancer, to include as secondary to PTSD, is remanded. 7. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A March 2008 Board decision denied the Veteran's appeal seeking to establish service connection for PTSD, finding that there is no corroborating evidence of a stressor event in service. 2. Evidence received since the March 2008 Board decision includes statements by the Veteran describing additional (previously unreported) details of the alleged stressor event in service; relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and considered with evidence previously of record raises a reasonable possibility of substantiating the claim. 3. A low back disability was not manifested during the Veteran's service and there is no probative evidence that any such disability may be etiologically related to his service. 4. A right hip disability was not manifested in service, or to a compensable degree within one year following the Veteran's discharge from service, and there is no probative evidence that such disease may be etiologically related to his service or to a service-connected disability. CONCLUSIONS OF LAW 1. The March 2008 Board decision that denied the claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 20.1100(a), 20.1104. 2. Evidence received since the March 2008 Board decision is new and material and the claim to establish entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Service connection for a right hip disability, to include as secondary to a low back disability, is not warranted. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1973 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 Department of Veterans Affairs (VA) rating decision. In December 2020, a virtual hearing was held before the undersigned; a transcript is in the record. [The Veteran's claims for service connection for a back and right hip disability, were initially denied by the AOJ in February 2016 and July 2016 rating decisions, respectively. Within one year of being notified of the decision, the Veteran sought to reopen the previously denied claims by submitting a VA Form 21-562EZ in April 2016 and December 2016. A July 2016 rating decision continued the previously denied claim of entitlement to service connection for a back disability. A February 2017 rating decision continued the previously denied claim of entitlement to service connection for a right hip disability. Again, within one year of being notified of the decision, the Veteran sought to reopen the previously denied claims by submitting a March 2017 VA Form 21-562EZ. An April 2017 rating decision continued the previously denied claims of entitlement to service connection for a back and right hip disability. However, the Board finds that the July 2016 and February 2017 rating decisions in these matters did not become final. Accordingly, the claims of service connection for back and a right hip disabilities are being addressed de novo.] 1. The appeal to reopen a claim of service connection for PTSD is granted. Generally, with exceptions not relevant herein, a Board decision is final. See 38 U.S.C. § 7104(a). However, 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; 38 C.F.R. § 3.156. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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) The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence received since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). A March 2008 Board decision denied the Veteran service connection for PTSD based essentially on a finding that there was no credible corroborating evidence of an underlying stressor event in service. Prior to the March 2008 Board decision, the Veteran provided statements indicating: that while he was jogging, he was stopped by a Nigerian soldier with an AK-47 who held the rifle to his head and told him to go home because he was out after curfew; that he saw Nigerian soldiers executing civilians at a beach; and that he was alone during both of these incidents. During a January 2007 RO hearing he also described another incident; he testified that Nigerian soldiers surrounded a building occupied by Marines in a dispute about rent. He was not in that particular building, but all Marines were put "on alert." During the December 2020 Board hearing, the Veteran expounded on his report of being involved in a standoff with a fellow Marine who was in the Lagos, Nigeria Embassy and that he and the other Marines were outside with their side arms. This standoff lasted for about two days and concerned a leasing issue. The Veteran reported being in fear for his life. He also submitted July 10, 1975 newspaper clippings from the Indianapolis Star and the Baltimore Sun, entitled "Nigeria Grabs Embassy Annex" and "Nigerian troops quit U.S. annex," purporting to confirm the Lagos, Nigeria Embassy standoff incident he had reported. See December 2020 Correspondence. This evidence directly addresses a basis for the prior denial of the claim of service connection for PTSD; pertains to an unestablished fact necessary to substantiate the claim, and, considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received since the March 2008 Board decision is both new and material, and that the claim of service connection for PTSD may be reopened. 2., 3. Entitlement to service connection for low back and right hip disabilities is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1) a disability for which service connection is sought; (2) a disability that is already service connected; and (3) that the already service connected disability caused or aggravated the disability for which service connection is sought. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that he has a low back disability that was incurred in service and a right hip disability that is secondary to the low back disability. The Veteran's service treatment records (STRs) are unavailable. In a January 2016 correspondence, VA notified the Veteran that it determined that his STRs could not be located for his period of service from November 15,1973 to December 14, 1976 and were therefore unavailable for review. All efforts to obtain the needed information had been exhausted, and based on these facts, it was determined that further attempts to obtain the records would be unsuccessful. When, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Upon careful review, the Board concludes that although the Veteran has a diagnosis of multilevel degenerative change of the lumbar spine, mostly involving the neuroforamen with moderate to severe right neuroforaminal stenosis at L4-L5 and moderate to severe bilateral neuroforaminal stenosis at L5-S1 (see October 2015 VA treatment record), the preponderance of the evidence is against finding that such began during active service, or is otherwise related to an injury, event, or disease in service. As noted above, the Veteran's STRs are unavailable. He has not provided any statements or argument relating a low back disability to service. In fact, at the December 2020 Board Hearing, his representative stated that they did not have any testimony to present relating to this claim. See December 2020 Board Hearing Transcript. Consequently, there is no evidence of an injury, event or disease in service underlying a current low back disability. While service connection for low back arthritis may be established (under 38 U.S.C. §§ 1112, 1137) by showing it was manifested to a compensable degree within a year following service, or by showing continuity of related complaints, there is also no evidence of record showing low back arthritis was manifested within a year following the Veteran's discharge from active duty in December 1976 or postservice continuity of complaints regarding low back arthritis. While the Veteran may believe his low back disability is etiologically related to his service, the record does not contain any evidence to support such a nexus. Based on the foregoing, the Board must find that the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not for application, and the appeal in this matter must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Similarly, regarding the claim of service connection for a right hip disability, an October 2015 VA treatment record notes the Veteran "[returned] for follow up of his right hip pain, possibly related to osteoarthritis of the right hip." Additional VA treatment records reveal the Veteran's complaints of right hip pain and having underwent right hip surgery in approximately 2016. A right hip disability is shown. However, upon careful review, the Board finds the preponderance of the evidence is against finding that the right hip disability began during service, is otherwise related to an injury in service, event, or disease, or is secondary to a [claimed to be] service-connected low back disability. The Veteran has not provided any statements or argument relating his right hip disability to service. At the December 2020 Board Hearing, his representative stated that they did not have any testimony to present regarding this claim. See December 2020 Board Hearing Transcript, p. 4. Consequently, there is no evidence of an injury, event or disease in service underlying the Veteran's current right hip disability. Furthermore, there is no evidence that right hip arthritis was manifested or that there was postservice continuity of right hip arthritis complaints (so as to warrant consideration of the claim under the chronic disease presumptive provisions in 38 U.S.C. §§ 1112, 1137)). The record does not show or suggest (and the Veteran has not alleged) that his right hip disability is related directly to (was incurred during) his active duty service. His primary theory of entitlement is one of secondary service connection; he asserts his right hip disability is secondary to his back disability. However, as his back disability is not service connected (the appeal in that matter having been denied herein), such secondary service connection theory of entitlement lacks legal merits. 38 C.F.R. § 3.310(a). Based on the foregoing, the Board must find that the preponderance of the evidence is against this claim. Therefore, the benefit of the doubt doctrine is not for application, and the appeal in this matter must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 4. Entitlement to service connection for a left hip disability is remanded. The Veteran asserts that he has a left hip disability that was incurred in service. Specifically, he testified that he participated in advanced infantry training at Camp Lejeune and that his left hip disability resulted from his carrying a radio and backpack in service. He testified he currently has left hip problems, for which he has received VA treatment and also private treatment at Greendale Physical Therapy. He further testified he has a diagnosis of left hip arthritis and needs a hip replacement. He reported he first received treatment for his left hip approximately in 2015 or 2016. See December 2020 Board Hearing Transcript. An October 2016 VA treatment record notes "pain is worse on left hip." VA treatment records in the claims file are otherwise silent regarding a left hip disability, and no records of private treatment for a left hip disability have been associated with the claims file. Considering that the Veteran's STRs are lost and there is a heightened VA duty to assist in this matter, and because the relevancy of the records of the identified treatment is apparently raised by the Veteran's testimony (and the Board is unable to find they would not be relevant), development for the records of the identified treatment is necessary. Furthermore, if additional records received suggest a current left hip disability may be related to service, an examination may be necessary. 5. Entitlement to service connection for PTSD is remanded. The Board finds that further development of the record is needed for a proper de novo adjudication of the claim of service connection for PTSD. The Veteran asserts that he has PTSD related to stressor events in service. He did not serve in combat; service connection for PTSD has been denied, in part, on the basis that there is no credible corroborating evidence of a stressor event in service. At the December 2020 Board hearing, the Veteran's testimony provided details of his reported involvement in a standoff with a fellow Marine who was in a Lagos, Nigeria Embassy building while he and the other Marines were outside with side arms. He reported he was in fear for his life during the incident, and has since submitted July 10, 1975 newspaper clippings that tend to confirm an event such as he has described occurred. The occurrence of an alleged stressor event in service is a threshold adjudicatory determination that must be made in a claim seeking service connection for PTSD. Based on the Veteran's reports and testimony as well as the newspaper clippings submitted, further exhaustive development for verification of the Embassy stand-off alleged stressor event and his involvement in the incident is necessary (and if the alleged stressor event is found to be verified, an examination to determine whether he has PTSD in accordance with DSM-5 based on such stressor event would be necessary). The Board also notes that as scanned into the record, the July 10, 1975 newspaper clippings from the Indianapolis Star and the Baltimore Sun are largely illegible (except for the headings). Clear copies of each article should be sought. 6. Entitlement to service connection for colon cancer, to include as secondary to PTSD, is remanded. The record shows that the Veteran has a history of colon cancer. As he alleges his colon cancer is secondary to his claimed psychiatric disability, this issue is inextricably intertwined with the claim of service connection for PTSD, and consideration of the claim must be deferred pending resolution of the service connection for PTSD claim and appeal. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 7. Entitlement to a compensable rating for bilateral hearing loss is remanded. At the Board hearing, the Veteran testified that his hearing loss had worsened since his last VA examination in August 2016. Given the duration of the interval since he was last examined and the allegation of worsening, a contemporaneous examination to assess the disability is necessary. The matters are REMANDED for the following action: 1. With any necessary identification of providers (and authorizations to secure private records identified) by the Veteran, obtain all outstanding records of VA and private treatment or evaluations he has received for his left hip disability. If he does not respond within the time provided, or records he identified are unavailable, it should be so noted for the record, with the scope of the search described. 2. Thereafter, arrange for the Veteran to be examined by an appropriate clinician to confirm the nature and determined the likely etiology of his claimed left hip disability. The Veteran's claims folder (including any records received pursuant to development sought above) must be reviewed in conjunction with the examination. The examiner should also note that it amy reasonably be conceded that the Veteran's training in service involved some carrying of a backpack and radio. The examiner should: a) Identify by diagnosis each left hip found or shown by the record. b.) Identify the likely etiology for each left hip disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the disability is etiologically related to the Veteran's service and his activities therein, to specifically include carrying a radio and backpack during training school at Camp Lejeune (as alleged). c.) If a diagnosed left hip disability is determined to be unrelated to service, identify the etiology that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. 3. Arrange for development (including a request to the Veteran) for clear (fully legible) copies of the July 10, 1975 newspaper clippings from the Indianapolis Star and the Baltimore Sun, entitled "Nigeria Grabs Embassy Annex" and "Nigerian troops quit U.S. annex," (as those articles are illegible as currently scanned into the claims file). 4. Review the materials and statements by the Veteran concerning his alleged stressors, and arrange for verification of his alleged stressor events in service (i.e., those capable of verification, not including any he has reported where there were no other witnesses). Regarding each alleged stressor event, make findings for the record addressing: (a) whether the event is one capable of verification (b) if so, whether his involvement is reasonably capable of verification and (c) whether he served in circumstances consistent with a fear of hostile action/terrorist activity. The evidence supporting and the reasoning for each finding must be explained in detail. The findings should be entered in the record in a memorandum. 5. After the memorandum is entered in the record, if a stressor event in service is found to be corroborated by credible supporting evidence, or it is determined that the Veteran served in circumstances consistent with a fear of hostile military action, arrange for an examination of the Veteran by an appropriate VA psychiatrist or psychologist to determine whether he has a diagnosis of PTSD related to the corroborated stressor event or based on a fear of hostile military or terrorist activity in service. The examiner must review the Memorandum of the AOJ's findings stressor events in service, and whether the Veteran served in circumstances consistent with a fear of hostile military or terrorist activity. The Veteran's entire claims file must be available to the examiner for review. The examiner must provide opinions that respond to the following: (a) Does the Veteran have a diagnosis of PTSD (in accordance with DSM-V) based on a corroborated stressor event in service or based on a fear of hostile/terrorist activity (if he is determined to have served in circumstances consistent with such)? (b) If PTSD is not diagnosed, identify the criteria for such diagnosis that are not met. All opinions must include rationale that cites to supporting factual data and medical principles. 6. If service connection for PTSD is established, arrange for all further development indicated (e.g., a medical examination and/or advisory medical opinion to confirm the diagnosis of colon cancer ascertain its etiology) and readjudicate the claim of service connection for colon cancer, specifically addressing the asserted secondary (to PTSD and related stress) service connection theory of entitlement. 7. Arrange for an audiological evaluation of the Veteran (with audiometric studies) to assess the current severity of his bilateral hearing loss. In addition to reporting audiometric findings, the examiner should elicit from the Veteran an account of the impact his hearing loss has on his functioning (and opine whether his account is consistent with the level of hearing acuity shown by audiometry). All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.