Citation Nr: 21077000 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-52 745 DATE: December 28, 2021 ORDER The appeal as to whether new or material evidence has been received to reopen a claim for service connection for a back disability is granted. The appeal as to whether new or material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD) is granted. The appeal as to whether new or material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. An April 2013 rating decision, in pertinent part, denied entitlement to service connection for a back strain, claimed as back pain, and while the Veteran timely filed a notice of disagreement (NOD), in part, as to this issue, he did not perfect an appeal following issuance of a Statement of the Case (SOC), and new and material evidence was not received within 60 days thereafter; however, evidence received subsequent to the April 2013 rating decision is new, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 2. A January 2016 rating decision, in pertinent part, confirmed and continued previous denials of service connection for PTSD and service connection for a personality disorder other than PTSD, claimed as an acquired neuropsychiatric condition, depression, and bipolar disorder, and new and material evidence was not received with one year thereafter as to these claims; however, evidence received subsequent to the January 2016 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, now characterized as a single claim for service connection for an acquired psychiatric disorder, to include PTSD, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Evidence added to the record since the final April 2013 rating decision, which in pertinent part, denied entitlement to service connection for a back strain, claimed as back pain, is new and material, and the claim for service connection is reopened. 38 U.S.C. §§ 5108, 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. Evidence added to the record since the final January 2016 rating decision, which in pertinent part, confirmed and continued a previous denials of service connection for PTSD and service connection for a personality disorder, claimed as an acquired neuropsychiatric condition, depression and bipolar disorder, is new and material, and the claims for service connection for an acquired psychiatric disorder other than PTSD, and PTSD, are reopened. 38 U.S.C. §§ 5108, 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1980 to August 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA). In April 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file and reflects the record was held open for 60 days from the date of the hearing to allow the Veteran and his representative to submit additional evidence. Subsequently in June 2021, the Veteran's representative submitted additional evidence consisting of a May 2021 private opinion addressing, in part, the Veteran's back disability. During the April 2021 Board hearing, Veteran waived initial consideration by the AOJ of all additional evidence, received after the most recent adjudication of the claims herein, by the AOJ, which encompasses the evidence provided by his representative in June 2021. Thus, the Board may proceed with appellate review. Additionally, regarding the characterization of the appeal as whether new and material evidence has been received to reopen a claim for entitlement to service connection for PTSD, the Board notes that claims that are based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996). However, what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the August 2016 rating decision, which forms the basis of this appeal, narrowly captioned and addressed the claim as a claim to reopen entitlement to service connection for PTSD. Thereafter, the September 2018 SOC also captioned the claim narrowly as claim for PTSD, and addressed the claim on the merits. However, in addressing the merits of the claim, the September 2018 SOC included discussion of an acquired psychiatric disorder. Specifically, the September 2018 SOC discussed a September 2014 VA examination, at which the Veteran was assessed with, in part, major depression, and discussed the negative nexus opinion for depression provided in the September 2014 VA examination report. Thus, the current claim to reopen encompasses both PTSD and an acquired psychiatric disorder other than PTSD. Further, the claims for PTSD and an acquired psychiatric disorder other than PTSD were previously finally denied. Thus, the Board finds that in the circumstances of this case, the appropriate action is to characterize the appeal as separate claims to reopen service connection for PTSD, and an acquired psychiatric disorder other than PTSD, and to subsequently recharacterize the reopened claims broadly as single a claim for service connection for any acquired psychiatric disorder, to include PTSD. New and Material Evidence Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Whether new or material evidence has been received to reopen a claim for service connection for a back disability The Veteran's claim for service connection for back disability was previously finally denied. In this regard, an April 2013 rating decision, in pertinent part, denied entitlement to service connection for a back strain, claimed as back pain, as this condition was neither occurred in nor caused by service. Thereafter, the Veteran timely filed a July 2013 informal NOD, in part, as to this issue; however, he did not perfect an appeal following issuance of an April 2015 SOC, and new and material evidence was not received within 60 days thereafter. Following the April 2013 rating decision, the record also reflects that additional service records were associated with the record in November 2014 and October 2019. However, to the extent additional service records were received after the April 2013 rating decision, these records are not relevant as they do not address a factual issue that were dispositive against the Veteran in the April 2013 rating decision as to his claim for a back disability. Kisor v. McDonough (Kisor IV), 995 F.3d 1347 (Fed. Cir. 2021). Thus, the April 2013 rating decision is final. 38U.S.C. §7105 (c); 38C.F.R. §§3.104, 20.302, 20.1103. Further, the Veteran has not argued the April 2013 rating decision is not final. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). New evidence added to the record since the April 2013 rating decision, includes a May 2021 private medical opinion. The May 2021 private medical opinion found the Veteran had a lumbar condition which was secondary to his right hip condition. This evidence is material as to the Veteran's claim for service connection for a back disability because it provides a nexus between the Veteran's back disability and his service-connected right hip disability, and is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Accordingly, the claim for service connection for a back disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Whether new or material evidence has been received to reopen a claim for service connection for PTSD 3. Whether new or material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD The Veteran's claims for service connection for PTSD and an acquired psychiatric disorder other than PTSD were previously finally denied. In this regard, a March 1998 rating decision, in part, denied service connection for a personality disorder, claimed as acquired neuropsychiatric condition and/or depression. The Veteran was notified of the decision later the same month. A December 2004 rating decision denied a claim to reopen an acquired psychiatric disorder, now claimed as bipolar disorder. The Veteran was notified of the decision later the same month. A December 2009 rating decision denied service connection for PTSD as the evidence of record did not provide credible evidence that the claimed stressor occurred, and review of service treatment records did not show evidence of a trauma consistent with the cause of PTSD. The Veteran was notified of the decision later the same month. Thereafter, a December 2012 rating decision again denied a claim reopen service connection for bipolar disorder. The Veteran was notified of the decision later the same month. A January 2015 rating decision denied service connection for PTSD and confirmed and continued the previous denial of service connection for a personality disorder, claimed as acquired neuropsychiatric condition, depression and bipolar disorder. The Veteran submitted a VA Form 21-0958, NOD, in March 2015 as to these issues. However, as he did not sign the March 2015 VA Form 21-0958, this cannot be considered a valid NOD. 38 C.F.R. § 20.201. Thereafter, a January 2016 rating decision confirmed and continued the previous denials of service connection for PTSD and service connection for a personality disorder, claimed as acquired neuropsychiatric condition, depression, and bipolar disorder. The Veteran was notified of the decision later the same month. The Veteran did not appeal the denial of the claims in the March 1998, December 2004, December 2009, December 2012, January 2015, and January 2016 rating decisions and no new and material evidence was received within the appeal period of these decisions. Thus, the March 1998, December 2004, December 2009, December 2012, January 2015, and January 2016 rating decisions are final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Further, the Veteran has not argued that these rating decisions are not final. Lang, 971 F.3d at 1354-55. Following the January 2016 rating decision, the record also reflects that additional service records were associated with the record in October 2019. However, to the extent additional service records were received after the January 2016 rating decision, these records are not relevant as they do not address factual issues that were dispositive against the Veteran in the January 2016 rating decision as to his claims for an acquired psychiatric disorder other than PTSD or PTSD. Kisor v. McDonough (Kisor IV), 995 F.3d 1347 (Fed. Cir. 2021). Thus, the January 2016 rating decision is final. 38U.S.C. §7105 (c); 38C.F.R. §§3.104, 20.302, 20.1103. Further, the Veteran has not argued the January 2016 rating decision is not final. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). New evidence added to the record since the January 2016 rating decision, includes April 2021 Board hearing transcript. Specifically, during the April 2021 Board hearing the Veteran's representative argued the Veteran had depression secondary to some of his physical limitations. While a new theory of entitlement is not a basis for reopening a claim, if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs, 520 F.3d at 1336-37. Here, an acquired psychiatric disorder other than PTSD, and PTSD, could plausibly be secondary to physical limitations caused by the Veteran's service-connected right hip disability and/or his right ankle strain. Thus, this evidence is both new, as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claims for service connection for PTSD and an acquired psychiatric disorder other than PTSD. Accordingly, the claims for service connection for an acquired psychiatric disorder other than PTSD, and for PTSD, are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. As discussed above, a May 2021 private examiner found a nexus had been established between the Veteran's lumbar spine condition and his right hip condition. As a rationale, the May 2021 private examiner found, in part, the Veteran's lumbar spine condition first became symptomatic in approximately 2015 and that the phenomenon of lumbar spine disease developing from lower extremity joint disease due to changes in the gait was well described in the current credible professional medical literature. However, the May 2021 private examiner did not identify a specific lumbar spine diagnosis for the Board to consider. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, July 2016 and September 2018 VA examiners endorsed a diagnosis of degenerative arthritis of the spine and the September 2018 VA examiner also endorsed a diagnosis of degenerative disc disease. Consistent with the May 2021 private opinion, an April 2013 VA examiner noted, in part, that it was medically plausible that the condition of severe right hip osteoarthritis was the etiology of the Veteran's persistent intermittent right low back symptoms (radiating pain). However, the May 2021 private examiner did not address other relevant evidence which conflicted with the proffered opinion, specifically the July 2016 and September 2018 VA opinions. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Specifically, a July 2016 VA examiner provided a negative nexus opinion as to whether the back disability was proximately due to, or the result of, the Veteran's service-connected right hip disability. In particular, the July 2016 VA examiner found the Veteran had a mildly antalgic gait due to his right hip pain but there was no more severe gait disturbance or weight bearing abnormality to suggest his right hip condition was the etiology for his lumbar condition. Instead, the July 2016 VA examiner found the Veteran's back disability (diagnosed as degenerative arthritis of the spine) was more likely due to chronic wear and tear over time since discharge. The September 2018 VA examiner also noted the Veteran was diagnosed degenerative disc disease by a February 2002 radiology report, greater than a decade prior to his hip surgery. The September 2018 VA examiner also noted literature supported obesity, aging, demineralization of bones related to ETOH/tobacco use, and a natural progression of aging, were leading causes of degenerative disc disease and the Veteran had all these risk factors. Additionally, contrary to the May 2021 private examiner's finding that Veteran's lumbar spine condition first became symptomatic in approximately 2015, as discussed, the September 2018 VA examiner found the Veteran was diagnosed with degenerative disc disease by a February 2002 radiology report. Additionally, prior to 2015, a February 2010 VA treatment record noted the Veteran reported lower back pain. Also, a June 2011 VA treatment record explained in part, the Veteran likely had musculoskeletal low back/flank pain on right side, since the small stone was not thought to cause pain and as the Veteran denies colicky pain, and provided a diagnostic impression of low back pain. Also, the May 2021 private opinion does not address the Veteran's reports of back pain which originated prior to 2015. Specifically, a March 2013 VA examiner documented, in part, the Veteran reported his low back pain began two and a half years ago, and a July 2016 VA examiner, also documented, in part, the Veteran reported a gradual onset of back pain over the course of duty which he attributed to repetitive overuse injuries from climbing poles in his job in communications, that he was treated conservatively for these complaints, and had had progressively increasing pain ever since. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the May 2021 private examiner's opinion lacks probative value. Additionally, as the July 2016 and September 2018 VA opinions did not address the claim on the basis of aggravation, an addendum opinion is warranted on this basis. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In addition, as discussed, the September 2018 VA examiner found the Veteran was diagnosed degenerative disc disease by a February 2002 radiology report; however, while a March 2002 VA treatment record reflected magnetic resonance imaging showed significant degenerative disc disease at C-5 and C-6 with broad-based disc bulging and mild spinal canal stenosis, a February 2002 radiology report is not of record. Also, the record reflect the AOJ most recently obtained the Veteran's VA treatment records dated in September 2021; however, the Veteran submitted VA treatment records dated in October 2021. Thus, any of the Veteran's outstanding VA treatment records to include a February 2002 radiology report, as well as any updated records from September 2021 to the present, should be obtained and associated with the record. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The record reflects the Veteran has had multiple psychiatric diagnoses, including borderline personality disorder. For example, a February 2015 VA treatment record noted the Veteran met the DSM-V criteria for PTSD, alcohol, cannabis use disorder, and borderline personality disorder. However, no VA examiner has addressed whether any identified acquired psychiatric disorder, and/or PTSD, was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. Thus, an opinion on this basis is warranted. The record reflects the Veteran reported PTSD due to military sexual trauma and/or childhood sexual abuse. For example, a February 2015 VA treatment record noted the Veteran reported military sexual trauma and described the Veteran's report of the incident. Also, an April 2017 VA treatment record documented, in part, the Veteran had a history of alcohol use disorder, moderate in remission, cannabis use disorder, mild in remission, bipolar II depression, and PTSD (from childhood abuse, compounded by military sexual trauma and unintended death by assault 29 years ago of which he was acquitted). In this regard, a January 2015 VA examiner found, in part, review of the Veteran's documentation revealed inconsistent information regarding the occurrence of military sexual trauma while in service, and given the inconsistency in the Veteran's claims of military sexual trauma across time, it was challenging to make an opinion as to whether or not it actually occurred. Further, the January 2015 VA examiner explained, in part, without the presence of circumstantial markers that specifically pointed to the occurrence of an event, the ability to support the occurrence of something like military sexual trauma was even more so complicated. The January 2015 VA examiner also found, that based on the information available in the mental health documentation, it did appear that the Veteran's depressive symptoms had worsened throughout the course of his life (with no specific ties to any one event) but it would be challenging to specifically associate this progression with even the possibility of military sexual trauma, given his significant history of polysubstance abuse, which could exacerbate/complicate depressive/mental health symptoms over time, as well. Additionally, the evidence reflects the Veteran may have had an acquired psychiatric disorder which preexisted service. In this regard, January 2015 VA examiner found the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. As a rationale, the January 2015 VA examiner explained review of mental health documentation along with the Veteran's most recent September 2014 examination report documented that he had "suffered from depression since age 3" and a December 2002 psychological assessment documented that the onset of depressive symptoms was "at age 7." Thus, the January 2015 VA examiner found it was very likely that the Veteran experienced depression/depressed mood prior to his military service. However, the January 2015 VA examiner also found it not possible to opine whether the Veteran's depression was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness, if the occurrence of the event had not been deemed as established/supported. Also, as noted above, during the April 2021 Board hearing, the Veteran's representative argued the Veteran's depression was related to some of his physical limitations. An acquired psychiatric disorder could plausibly be secondary to physical limitations caused the Veteran's service-connected right hip disability and/or his right ankle strain. However, no VA examiner has adequately addressed the claim on a secondary basis. Specifically, a January 2015 VA examiner found the condition claimed was less likely than not proximately due to or the result of the Veteran's service-connected condition but explained the Veteran had not been service-connected for a mental health condition to date. Thus, another opinion is warranted. Finally, a September 2014 VA examiner found, in part, the Veteran's depression was less likely than not related to military experiences. As a rationale, the September 2014 VA examiner found, in part, although an April 1984 service treatment record indicated a diagnosis of personality disorder with mixed features and that he complained of feeling depressed once in a while, and his depression did not rise to level of clinical depression because it did not require follow-up. The September 2014 VA examiner also found the Veteran did not meet the DSM-IV or DSM-5 criteria for a diagnosis of PTSD, major depressive disorder or bipolar disorder. However, such diagnoses are currently of record, and thus, an addendum opinion addressing the claim on a direct incurrence basis is warranted. The matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA treatment records to include a February 2002 radiology report showing lumbar spine degenerative disc disease, as well as any updated records from September 2021 to the present. 2. Obtain a medical opinion from an appropriate clinician addressing the nature and etiology of the Veteran's back disability. The clinician is asked to provide a response to the following: Is it at least as likely as not that the Veteran has a back disability, to include degenerative arthritis and degenerative disc disease, which was aggravated, i.e., any increase in disability, by his service-connected right hip disability, to include as due to any changes in antalgic gait? 3. Thereafter, schedule the Veteran for a supplemental medical opinion (with examination only if deemed necessary by the clinician) to determine the nature and etiology of any acquired psychiatric disorder. (a.) As to each acquired psychiatric disorder diagnosed during the course of the appeal, the examiner must opine whether the identified acquired psychiatric disorder was at least as likely as not related to service. (b.) As to each acquired psychiatric disorder diagnosed during the course of the appeal, the examiner must opine whether the identified acquired psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. (c.) As to each acquired psychiatric disorder diagnosed, is at least as likely as not that the identified disability was proximately due to service-connected right hip disability and/or service-connected right ankle strain? (d.) As to each acquired psychiatric disorder diagnosed, is at least as likely as not that the identified disability was aggravated, i.e., any increase in disability by service-connected right hip disability and/or service-connected right ankle strain. 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.