Citation Nr: 21006787 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-13 772 DATE: February 5, 2021 ORDER New and material evidence has been received and the claim of service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea and/or insomnia, to include as secondary to the claimed low back condition, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the claimed low back disorder, is remanded. FINDING OF FACT The August 1978 rating decision denying service connection for nervousness is final. Evidence received since then is neither cumulative nor redundant of the evidence at the time of the August 1978 rating decision and assuming its credibility, raises a reasonable probability of substantiating the claim. CONCLUSION OF LAW The August 1978 rating decision denying service connection for upper respiratory infections, pharyngitis, tonsillitis and sinusitis is final and the evidence received for service connection subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (b), 3.303, 20.1105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1972 to October 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. These matters were last before the Board in September 2019. Unfortunately, as will be discussed below, the Board finds that a further remand is required. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. By way of procedural history, the RO denied service connection for nervousness in an October 1978 rating decision. The Veteran did not initiate an appeal of this decision and it became final. The RO declined to reopen the matter in an August 2011 rating decision. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as 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 Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A December 19, 2017 VA treatment record notes the Veteran reported that his chronic pain affects his sleep and mood, stating that is has been "difficult to cope with symptoms." Major depressive disorder was noted. The Board finds that this evidence was not previously submitted to VA before any prior rating decision and that, assuming its credibility for purposes of deciding whether to reopen the claim, this evidence addresses a requirement of service connection that was previously denied: evidence of a current diagnosed condition. Therefore, this evidence is "new" and "material" and the Veteran's claim for service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition is remanded. The Veteran was afforded a VA thoracolumbar spine examination in April 2017. A diagnosis of lumbar degenerative disc disease status post surgery was noted. The Veteran reported that he began having low back pain in 1974 while on active duty while performing heavy lifting and which continued after the service. The examiner opined that the Veteran's low back condition is less likely than not related to his service, noting that there the service treatment records contain no evidence of low back pain, nor is there any evidence of continuity of symptoms. The examiner then opined that the Veteran's low back condition is less likely than not caused or aggravated by his service-connected hearing loss, tinnitus and complete atrophy of the testis, noting that medical evidence does not support the relationship of these conditions. Here, the examiner relied almost entirely on the lack of documented back pain while in the service and failed to address the Veteran’s contentions regarding his claimed in-service back pain and continuity thereof. As such, the Board finds this examination opinion is inadequate and of no probative value. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) In a July 15, 2019 private medical opinion, Dr. A. Ali opined that it is "just as likely as not" that the Veteran developed back pain while in service, noting the affidavits from the Veteran and his sister attest to this and that the back pain was intermittent and continuing until 1981 when he reinjured his back. Here, the opinion appears to be based entirely on the Veteran's self-reported service and medical history, which is not supported by his service treatment records that show no in-service complaints or treatment for back pain. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Further, the Board notes that the affidavit from the Veteran’s sister does not contain firsthand knowledge of any back injury suffered by the Veteran. Further, in her affidavit, she describes the Veteran as suffering from difficulty with walking when he came back from the service. However, the Veteran was afforded a VA examination in August 1978 at which it was noted that while stationed in Germany he "underwent surgery of the scrotal sac due to severe pain following lifting of a heavy object." It was noted that the Veteran was working as a diesel mechanic and had "normal gait and posture." The Board notes that this examination record was not discussed by the private physician and that it’s documentation of normal gait tends to contradict the claim that the Veteran had difficulty with walking. As such, the Board finds this opinion to be of no probative value. Based on the above, the Board finds that a remand for a VA examination is required. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea and/or insomnia, to include as secondary to the claimed low back condition, is remanded. The Veteran was afforded a VA mental disorders examination in April 2017. The examiner noted that the Veteran reported suffering from insomnia for the prior 10 years, but al reported sleeping from 8pm to 3am for 7 hours of sleep, as well as 2-hour naps during the day. The examiner found that there is no diagnosis of insomnia. The Board notes that numerous VA treatment records prior and subsequent to this opinion show diagnoses of insomnia. As such, the Board finds this examination is inadequate and of no probative value. See, Barr. In a July 15, 2019 private medical opinion, Dr. A. Ali opined that it is "just as likely as not" that the Veteran developed insomnia while in service, noting that the Veteran's affidavit attests to his not having insomnia prior to the service but developing it while in the service. The Board note that in his May 21, 2019 affidavit, while the Veteran does assert having no sleep problems prior to the service, he never asserted developing said problem while in the service. As such, the examiner’s opinion is based on a false premise and is therefore of no probative value. Based on the above, the Board remands this matter for a VA examination. 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the claimed low back disorder, is remanded. Finally, because a decision on the remandd issue of entitlement to service conenction for a low back condition could significantly impact a decision on the issue of entitlement to service connection for an acquired psychiatric disorder, the issues are inextricably intertwined and a remand is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 1981 to December 1981 from the San Juan VA Medical Center. Low Back 2. Schedule the Veteran for a VA examination for his low back condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s low back condition at least as likely as not related to service, including a claimed injury sustained while lifting a heavy object? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the Veteran’s low back condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner’s attention is invited to August 1978 VA examination report in which it was noted that while stationed in Germany the Veteran "underwent surgery of the scrotal sac due to severe pain following lifting of a heavy object" and that he had "normal gait and posture." The examiner’s attention is invited to the May 2019 affidavits received from the Veteran and his sister regarding his claimed in-service and post-service back pain. The examiner must address the Veteran’s contention that he sustained a back injury in 1974 from the same incident in which he sustained a left spermatic cord injury, but never reported this because the pain was intermittent, but has continued to the present. Sleep Condition 3. Schedule the Veteran for a VA examination for his sleep disorder, to include sleep apnea and/or insomnia. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s claimed sleep condition at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s sleep condition at least as likely as not proximately due to his claimed low back condition? Is the Veteran’s sleep condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his claimed low back condition? 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an acquired psychiatric disorder. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.