Citation Nr: 21076119 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-61 978 DATE: December 22, 2021 ORDER Reopening of a claim for entitlement to service connection for back condition is granted. Reopening a claim for entitlement to service connection for posttraumatic stress disorder (PTSD), claimed as psychological condition, is granted. REMANDED Entitlement to service connection for back condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, depression, somatization disorder, and anxiety, is remanded. FINDINGS OF FACT 1. In a September 2013 rating decision, entitlement to service connection for back condition was denied. 2. New evidence received since the September 2013 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for back condition. 3. In a September 2013 rating decision, entitlement to service connection for PTSD (claimed as psychological condition) was denied. 4. New evidence received since the September 2013 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The September 2013 rating decision denying entitlement to service connection for back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New evidence received since the September 2013 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2013 rating decision denying entitlement to service connection for PTSD (claimed as psychological condition) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 4. New evidence received since the September 2013 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder, including PTSD, depression, somatization disorder, and anxiety. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified before the Board at an April 2020 virtual hearing. A transcript of the hearing is associated with the claims file. The Board acknowledges that the issue of entitlement to an increased rating for right tibia injury was discussed at the virtual hearing. The Veteran filed a claim for entitlement to service connection for right tibia injury in August 2014. Service connection for right foreleg scar (claimed as right tibia injury) was granted in a February 2016 rating decision. This was a full grant of the benefit sought, and the Veteran did not file a notice of disagreement. Accordingly, the Board does not have jurisdiction over a claim for entitlement to an increased rating for right foreleg scar, and the matter is not addressed in this Decision and Remand. Reopening The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464, 468 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). The finality of a previously disallowed claim can be overcome by the submission of new and material evidence, however. See 38 U.S.C. § 5108. New evidence means "evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). "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." Id. "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." Id. In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, the evidence is presumed to be credible. Savage v. Gober, 10 Vet. App. 488, 49394 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). With respect to the issues decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Back condition A claim for entitlement to service connection for back pain was originally addressed in a February 1998 rating decision. The AOJ denied the claim due to a lack of evidence that the condition was incurred in or aggravated by military service. The AOJ informed the Veteran of its decision in a March 1998 letter. The Veteran did not appeal the decision. The Veteran later filed to reopen the claim and was denied in a September 2013 rating decision because new and material evidence had not been received. The AOJ informed the Veteran of its decision in a September 2013 letter. The Veteran did not file an appeal. Since the September 2013 rating decision, additional evidence has been associated with the claims file, including a September 2020 letter from an orthopedic surgeon and a June 2021 private pain management treatment record. Both the September 2020 letter and the June 2021 treatment record attributed the Veteran's back condition to an in-service ambulance accident. This evidence is new because it was not associated with the record at the time of the September 2013 rating decision. This evidence is material because it relates to a previously unestablished element of the Veteran's claim: an in-service injury. Thus, presuming this evidence is credible, new and material evidence has been received and reopening the claim for entitlement to service connection for back condition is granted. PTSD, claimed as psychological condition A claim for entitlement to service connection for depression was originally addressed in a February 1998 rating decision. The AOJ denied the claim due to a lack of evidence that the condition was incurred in or aggravated by military service. The AOJ informed the Veteran of its decision in a March 1998 letter. The Veteran did not appeal the decision. The Veteran later filed to a claim for a psychological condition. The September 2013 rating decision denied entitlement to service connection for PTSD and determined that new and material evidence had not been submitted to reopen that a claim for depression. For PTSD, the AOJ found no evidence of a current disability or an in-service event, disease, or injury. The AOJ informed the Veteran of its decision in a September 2013 letter. The Veteran did not file an appeal. Since the September 2013 rating decision, additional evidence has been associated with the claims file, including newspaper articles and an August 2020 evaluation by a private psychologist (received in September 2020). The newspaper articles document an accident in Alaska in which a runaway tractor injured or killed multiple servicemembers. The Veteran has cited this accident as a cause of his psychiatric condition, but it had not been considered because it could not be verified, as noted in a September 2013 Joint Services Records and Research Center memorandum. The August 2020 evaluation appeared to link the Veteran's depression and anxiety with the accident in Alaska. This evidence is new because it was not associated with the record at the time of the September 2013 rating decision. This evidence is material because it relates to a previously unestablished element of the Veteran's claim: an in-service event and link to service. The Board acknowledges that the Veteran sought to reopen the claim for entitlement to service connection for PTSD. Because a veteran without medical expertise is not competent to diagnose his particular condition, the Board has broadened the Veteran's claim for a PTSD to incorporate any acquired psychiatric disorder, including PTSD, depression, somatization disorder, and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, new and material evidence has been received and reopening the claim for entitlement to service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND Remand is necessary for both matters to obtain additional evidence. At the April 2020 hearing, the Veteran reported receiving private treatment for his back in the 1980s and 1990s as well as private mental health treatment "in 1992 or '93." He also testified at the April 2020 hearing that he received treatment for his back through the Veterans Choice Program "a couple of different times" as recently as December 2019. None of these records are associated with the claims file. Additionally, the Veteran stated at the April 2020 hearing that he received VA treatment for "about six years." A November 2017 statement of the case identified VA treatment notes at the VA Maine Healthcare System from June 20, 1996, through December 23, 2015. The claims file currently contains only a few incomplete VA treatment records. Finally, the Veteran testified that he applied for disability benefits from the Social Security Administration (SSA) in the 1990s. Although the claims file contains SSA records, these records are from the 2010s. Because these records are not associated with the claims file, VA must attempt to obtain them on remand. Back condition Remand is necessary to obtain a VA examination for the Veteran's back condition. Although the September 2020 letter from an orthopedic surgeon and the June 2021 private pain management treatment record were sufficient to reopen the claim, the Board finds both are insufficient to support service connection and gives limited (if any) probative value to either. The September 2020 letter from an orthopedic surgeon stated that the writer performed a "complete review of [the Veteran's] medical records." The September 2020 letter, however, appears to misrepresent the contents of a December 1995 private treatment record and misquoted a February 1997 private treatment record. The September 2020 letter cited a "12/14/96" private treatment record as documenting "minor disc space narrowing and posterior spondylosis C5-C6" as well as a report from the Veteran that he injured his back while driving an ambulance in service. The Board could not locate a December 14, 1996 treatment record with this content, but did find a December 14, 1995 cervical spine radiology report with the Impression "Minor disk space narrowing and posterior spondylosis of C5-C6." The December 14, 1995 record did not mention any potential cause for the Impression, including the Veteran's service or a vehicular accident. Additionally, the September 2020 letter listed a February 21, 1997 record as stating that the Veteran had "low back pain . . . healthy with no significant pain complaints until 1970" (emphasis added). Review of the original February 21, 1997 private treatment record shows that the record actually described the Veteran as "healthy without significant complaints until 12-08-95. At that point [the Veteran] describes being an unbelted driver and travelling 30 MPH when he was struck head on . . . Since that time he has had symptoms in his . . . low back" (emphasis added). Because the September 2020 letter relied on incorrect citations to support its opinion, the Board assigns no probative value to this opinion. For the June 2021 private pain management treatment record, the provider noted that they had "reviewed [the Veteran's] history, his exam[,] and his prior x-rays and MRI from 2015." There is no indication that the provider reviewed the claims or was aware of service treatment records and treatment records prior to 2015. Because the June 2021 treatment record relied primarily on the Veteran's statements without considering any treatment records prior to 2015, the Board finds this opinion has limited probative value. Because the June 2021 private pain management treatment record indicates that the Veteran's back condition could be related to service, the Board finds that a VA examination is warranted to determine the etiology of the Veteran's back condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Acquired psychiatric disorder, including PTSD, depression, somatization disorder, and anxiety Remand is necessary to obtain a VA psychiatric examination. As referenced above, newspaper articles have been associated with the claims file that corroborate the Veteran's reported stressor of an accident in Alaska in which a runaway tractor injured or killed multiple servicemembers. This is sufficient to schedule a VA examination for PTSD. Additionally, an August 2020 evaluation by a private psychologist (received in September 2020) diagnosed the Veteran with major depression ("moderate, recurrent") and somatization disorder (also seemingly called "anxiety" in the evaluation). The evaluation determined that the Veteran's depression and anxiety were "connected to not only the crash itself, but his ongoing difficulties with pain and medical limitations that considerably impair his daily activities." It is unclear to which incident "the crash" refers, however. Moreover, throughout the evaluation the psychologist linked the Veteran's depression and anxiety (particularly his anxiety) to his "pain." Ostensibly this "pain" refers to the amputated toe; fibromyalgia; cervical spondylosis; lower back, hip, and neck pain; and chronic slipped disc referenced in the evaluation's Medical History section. None of those conditions are service connected. For these reasons, the Board finds a VA examination is necessary to clarify the etiology of each diagnosed psychiatric disorder. The matters are REMANDED for the following action: 1. Ask the Veteran to complete proper releases authorizing VA to obtain treatment records from private providers and Vet Centers (through the Veterans Choice Program or otherwise) that are relevant to his claims. This includes treatment for his back in the 1980s, 1990s, and 2010s, as well as mental health treatment in 1992 or 1993. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. Ask the Veteran to submit any SSA records from the 1990s to which he has access. 2. Contact SSA and obtain copies of any disability determinations from the 1990s, including the underlying medical records upon which the determinations were made. Copies of all records received must be associated with the Veteran's claims file. All efforts to procure these records must be documented in the claims file. 3. Obtain the Veteran's VA treatment records, including complete treatment records from the Maine Healthcare System (which should at least contain records from June 20, 1996, through December 23, 2015). Archived records should be recalled and produced. 4. Schedule the Veteran for a VA examination for his back condition. The examiner must review the claims file. The examiner is asked to determine whether each diagnosed back condition is at least as likely as not related to service, including a motor vehicle accident documented in a May 1970 service treatment record. Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. 5. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the accident in Alaska in which a runaway tractor injured or killed multiple servicemembers. For any other acquired psychiatric disorders including depression, somatization disorder, and anxiety the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the motor vehicle accident documented in a May 1970 service treatment record and the runaway-tractor accident. 6. Then, readjudicate the claim. If the benefits sought remain denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.