Citation Nr: 21069588 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-40 558 DATE: November 18, 2021 ORDER The application to reopen the claim for service connection for residuals of a traumatic brain injury (TBI) is granted. The application to reopen the claim for service connection for a thoracolumbar spine (low back) disorder is granted. Service connection for residuals of a TBI and for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is granted. Service connection for a thoracolumbar spine disorder, diagnosed as degenerative arthritis of the lumbar spine, is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed October 2012 rating decision (remailed on March 2014), the Agency of Original Jurisdiction (AOJ) denied the claims for service connection for residuals of a TBI and for a low back disorder. 2. Evidence received since the March 2014 notice of the rating decision is new and material and raises a reasonable possibility of substantiating the claims of entitlement to service connection for residuals of a TBI and for a low back disorder. 3. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed residuals of a TBI, PTSD, depression, and lumbar spine degenerative arthritis are related to an in-service injury. CONCLUSIONS OF LAW 1. An October 2012 rating decision (remailed to the Veteran in March 2014) that denied the claim for service connection for residuals of a TBI and for a low back disorder is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 20.1103. 2. The criteria to reopen a claim for service connection for residuals of a TBI are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a). 3. The criteria to reopen a claim for service connection for a low back disorder are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a). 4. The criteria for service connection for residuals of a TBI and for an acquired psychiatric disorder to include PTSD and depression are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F. R. § 3.303. 5. The criteria for service connection for low back disorder, diagnosed as degenerative arthritis of the thoracolumbar spine, are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F. R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2021; a transcript of the hearing is of record. The United States Court of Appeals for Veterans Claims (Court) has held that, although a Veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the Veteran's description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his current claim in December 2014 seeking service connection for PTSD specifically, the record reflects the Veteran has diagnoses of PTSD, depression, and residuals of a TBI. The Board therefore finds that, pursuant to Clemons, the Veteran's claim seeking service connection is more accurately characterized as one for residuals of a TBI and PTSD and has been recharacterized appropriately. New and Material-Laws and Analysis The Veteran was initially denied service connection for residuals of a TBI and for a low back disorder in an October 2012 rating decision because there was no indication that his disorders were related to service. In September 2013, VA was notified that the October 2012 rating decision had been returned as undeliverable with no forwarding address. Another copy of the October 2012 rating decision was sent to the Veteran on March 20, 2014. The Veteran did not appeal the decision and no new and material evidence was received within one year of the March 20, 2014 notice. As such, the March 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the March 2014 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran's claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Upon review, the Board finds that the evidence received more than one year since the March 2014 notice of the rating decision which denied service connection for residuals of a TBI and a low back disorder includes evidence that the Veteran's disorders are related to service. See August 2021 opinion from Dr. Wilson and September 2021 opinion from Dr. Graf. This evidence is new and material and raises a reasonable possibility of substantiating the Veteran's claims. Therefore, the claims are reopened. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Residuals of a TBI, PTSD, and Depression Service records confirm that the Veteran fell off parallel bars in 1978 during training. Records show that the Veteran landed on the right side of his head and both shoulders. The evidence also includes a VA psychiatric examination dated in July 2015. At that time, the examiner did not diagnose the Veteran with psychiatric disability, although VA treatment records note diagnoses of depression and a neurocognitive disorder. In support of his claim, the Veteran submitted an August 2021 medical opinion from Dr. Wilson, a clinical psychologist. After reviewing the evidence of record, conducting an interview with the Veteran, and addressing relevant medical literature, Dr. Wilson indicated that the Veteran met the DSM-V criteria for a TBI (including a neurocognitive disorder), PTSD, and depression. These diagnoses were also opined as having been directly related to his traumatic military accident. The Board finds the August 2021 report and medical opinion from Dr. Wilson to be highly probative. In support of his opinion, Dr. Wilson thoroughly reviewed the Veteran's medical history, to include service treatment records, post-service VA and private treatment records, the July 2015 VA examination report, and lay statements from the Veteran and his spouse. Dr. Wilson also discussed relevant medical literature, which indicated that veterans with TBIs also experienced comorbid depressive disorders and anxiety disorders. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion that contributes probative value to a medical opinion). VA treatment records also show that the Veteran consistently reported having sustained a head injury in service. See August 2011 and November 2011 VA treatment records (noting that the Veteran reported falling on his head in the military). During a September 2014 VA psychiatric note, the Veteran's wife reported that the Veteran was easily irritated and angry. The VA psychiatric indicated that "much of this is related to his head injury." The Board finds that there is no conflicting medical evidence of record regarding the etiology or cause of the Veteran's residuals of a TBI (to include a neurocognitive disorder) and for an acquired psychiatric disorder to include PTSD and depression. For these reasons, and resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted. Low Back Disorder As noted above, the Veteran sustained a fall in service in August 1978. In July 1978, prior to the fall, the Veteran reported having pain in his thoracic back area radiating to both legs and was assessed with a possible muscle spasm. The pain was noted to be sharp with movement. In an August 1978 note, the Veteran reported having low back pain. In a July 1979 service treatment note, the Veteran reported a 2-week history of lower back pain. He was diagnosed with a back stain after lifting a 4x4. The Veteran was afforded a VA spine examination in June 2015. A diagnosis of degenerative joint disease of the lumbosacral spine was confirmed. In support of the negative nexus opinion, the examiner indicated that the Veteran's lumbar spine disorder was not related to service as records were silent for any light duty/profile/MEB due to a chronic back diagnosis. After service, the Veteran was also physically able to work in occupations requiring physical labor. In support of his claim, the Veteran submitted a private medical opinion dated in September 2021, from Dr. Graf, an orthopedic surgeon. During the evaluation, the Veteran reported that, after his fall in 1978, he continued to have low back pain. Dr. Graf indicated that the Veteran was a credible reported of his in-service back injury and pain following the injury. Dr. Graf opined that there was a "causal nexus" between the Veteran's lumbar spine arthritis and his military service. During the June 2021 Board hearing, the Veteran competently testified that he had consistent and severe back pain ever since his in-service injury. Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is in relative equipoise as to whether the Veteran's diagnosed lumbar spine disability is, at least in part, related to service. As such, when resolving doubt in the Veteran's favor, the Board finds that service connection is warranted. The Board also notes that the Veteran's representative has raised the issue of a total disability rating based on individual unemployability (TDIU). See October 2021 Post-Hearing Memorandum. Notably, however, the issue of a TDIU was not adjudicated in the July 2015 rating decision currently on appeal. Moreover, because the issues on appeal are not for an increased or initial rating, the Board may not take jurisdiction over the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is advised that he may file a separate claim for a TDIU if he so chooses. REASONS FOR REMAND Hearing Loss The Veteran was afforded a VA examination in June 2015. At that time, the examiner indicated that test results and responses were "inconsistent with poor inter-test reliability." While thresholds were obtained, the examiner opined that the Veteran should be "re-tested." No subsequent audiological testing has been performed and the Veteran failed to attend a September 2017 hearing examination. Post-service VA, private, and Social Security Administration disability records do not include any audiological testing of the Veteran. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. §§ 1110, 1131. As such, on remand, the Veteran should be afforded another opportunity to attend a VA examination to assess his hearing loss, if any. In providing an opinion, the examiner should review the medical opinion by Dr. Graf, submitted by the Veteran in October 2021. The matters are REMANDED for the following actions: 1. Obtain the Veteran's updated VA treatment records and associate them with the claims file. 2. Then, schedule a VA audiological examination to determine the nature and etiology of the Veteran's hearing loss, if any. The entire claims file must be reviewed in conjunction with the examination. (a.) Indicate whether the Veteran has a hearing loss disability for VA compensation purposes. (b.) If hearing loss is diagnosed, opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss was incurred in or is otherwise related to the Veteran's active military service. **The examiner is asked to review and address the opinion provided by Dr. Graf dated September 22, 2021. (c.) If hearing loss is NOT found to be etiologically related to service, the examiner is also asked to opine whether is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss is either caused or aggravated by the already service-connected tinnitus disability. ** Please note that "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (d.) All opinions should be accompanied by a clear rationale. 3. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.