Citation Nr: 21005412 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-56 558 DATE: February 9, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a low back disorder is granted. REMANDED Entitlement to service connection for an acquired mental disorder, to include PTSD, is remanded. Entitlement to service connection for low back disorder is remanded. Entitlement to service connection for associated neurologic disorder, right lower extremity (RLE), is remanded. Entitlement to service connection for associated neurologic disorder, LLE, is remanded. FINDINGS OF FACT 1. A December 1981 rating decision denied service connection for a low back disorder, including lumbosacral strain. The Veteran did not appeal the decision and no additional related information on the claim was received within one year of the rating decision. 2. Evidence added to the record since the December 1981 rating decision triggered additional assistance to the Veteran and raised a reasonable possibility of proving the claim. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a low back disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran perfected an appeal from an April 2016 rating decision wherein the Agency of Original Jurisdiction (AOJ) reopened the low back claim and denied it on the merits and denied the other initial claims. See 04/19/2016 Rating Decision – Narrative. The Veteran initially requested a Board hearing at the Board’s Central Office but, via his representative, he later requested a hearing via video conference in lieu of one at the Board’s Central Office. See 11/07/2016 VA Form; 06/11/2019 Third Party Correspondence, 1st Entry. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a low back disorder is granted. Legal Requirements Since this is a Legacy appeal, applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). 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. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Discussion First, the December 1981 rating decision is final, as the Veteran did not appeal it and no additional related information was received within one year of its issuance. 38 C.F.R. §§ 20.203(a), 20.1103. Although the AOJ in fact reopened the low back claim, the Board retains sole jurisdiction to determine whether it was proper to reopen the claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001). Further, under the criteria applicable to Legacy appeals, the Board is not bound by any favorable determinations made by the AOJ in the decision to reopen the claim. Cf. 38 C.F.R. §§ 3.156(d), 3.2501(a). Nonetheless, a lengthy discussion is not needed, as the Board agrees with the AOJ determination that new and material evidence was presented. The evidence added to the record since the December 1981 rating decision includes the medical evidence that the Veteran has a currently diagnosed disabling lumbar spine disorder symptoms, an element of the claim that was lacking in 1981, see 38 C.F.R. § 4.31, and the Veteran’s sworn testimony at the Board hearing. This evidence is both new and material. Hence, the claim is reopened. 38 C.F.R. § 3.156. Although the AOJ developed the claim as part of its adjudication, the Board finds that additional development is needed prior to a decision on the merits. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). REASONS FOR REMAND 1. Entitlement to service connection for an acquired mental disorder, to include PTSD, is remanded. A VA examination report (03/14/2016 C&P Exam, 1st Entry) reflects that the Veteran did not meet the criteria for a diagnosis of PTSD. In fact, the examiner opined that the Veteran did not manifest any acquired mental disorder. As the Veteran’s representative asserted at the Board hearing, the Veteran’s outpatient records note a diagnosis of PTSD, and the Veteran had participated in a VA in-residence treatment program for the disorder. See 02/16/2016 CAPRI, 1st Entry, P. 18, 66, 108. The Board also notes that the VA examiner did not note the fact of the diagnosis of record. Further, at the hearing the Veteran testified to a stressor not previously of record on which additional assistance is needed. See 11/20/2020 Hearing Testimony, P. 9 et seq. 2. Entitlement to service connection for low back disorder is remanded. The representative noted at the hearing that several non-VA records were no longer available, but he did not specifically identify them. Hence, a remand is indicated to seek to obtain potentially relevant records, such as any additional records extant related to the Veteran’s 1994 or 1995 work-related low back injury, and the records associated with his award of disability benefits by the Social Security Administration (SSA). There is no indication in the claims file that they were sought or shown as no longer available. 3. Entitlement to service connection for associated neurologic disorder, RLE, is remanded. This claim is deemed intertwined with the low back claim. 4. Entitlement to service connection for associated neurologic disorder, LLE, is remanded. See 3, above. The matters are REMANDED for the following action: 1. The AOJ shall take all indicated action to develop the additional stressor the Veteran testified to at the hearing. Specifically, that while stationed at a remote location he lost friends in an aircraft accident. If the claimed stressor is confirmed, the AOJ shall arrange a VA examination to determined if the Veteran has a diagnosis of PTSD that meets the DSM criteria that is linked to the stressor. Even if the additional stressor is not confirmed, send the claims file to the clinician who conducted the March 2016 examination and ask the clinician to provide an addendum wherein the clinician addresses the Veteran’s PTSD diagnosis of record and the reason(s) for entering “no diagnosis.” 2. The AOJ shall obtain any necessary releases and ascertain if any records related to the Veteran’s 1995 work injury and his Workman Compensation claim are extant. If so, obtain them. The AOJ shall also inquire of the SSA as to whether records related to his award of disability benefits are still extant. If so, obtain them and add them to the claims file. 3. After 2, above, is complete, arrange a review of the claims file by clinician who conducted the March 2016 examination to evaluate evidence added to the claims file. If no additional records are added to the claims file, the clinician is still asked to opine whether it is at least as likely as not (at least a 50 percent probability) that his currently diagnosed lumbar spine disorder is causally connected to his complaints and treatment documented in the service treatment records (STRs) or is otherwise causally connected to his active service? Inform the clinician that the Veteran’s lay report of his history must be considered, and that the absence of contemporaneous medical documentation, alone, is not an adequate reason for dismissing his lay history. Inform the clinician further that the Board has yet to make a determination of the accuracy or credibility of the Veteran’s lay reported history (See Miller v. Wilkie, 32 Vet. App. 299 (2020)), so it must be considered. If the clinician who conducted the March 2016 examination is no longer available, send the claims file to an equally qualified clinician. If the clinician opines that it is at least as likely as not that the Veteran’s currently diagnosed lumbar spine disorder is causally connected to his complaints and treatment documented in the STRs or is otherwise causally connected to his active service, then is it at least as likely as not that his currently diagnosed neuropathy of both LEs is due to or worsened by the currently diagnosed lumbar spine disorder? Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.