Citation Nr: 21012715 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-46 824 DATE: March 5, 2021 ORDER The petition to reopen the claim of service connection for eye/vision problems is dismissed. The claim of entitlement to eligibility for medical treatment under Section 1702 is dismissed. The petition to reopen the claim of service connection for gastroesophageal reflux disease (GERD) is dismissed. New and material evidence having been submitted, the claim of entitlement to service connection for a back condition is reopened. REMANDED Entitlement to an effective date prior to April 20, 2018 for the grant of service connection for unspecified trauma and stressor related disorder, now with unspecified depressive disorder, is remanded. Entitlement to a rating in excess of 50 percent for unspecified trauma and stressor related disorder, now with unspecified depressive disorder is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. On October 6, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested regarding the issues on appeal related to service connection for eye/vision problems, eligibility for medical treatment under Section 1702, and service connection for GERD. 2. A claim for service connection for a back condition was denied in an April 2008 rating decision. The Veteran filed a timely Notice of Disagreement, and the RO issued a Statement of the Case in September 2009. The Veteran was informed of his appellate rights but did not timely file a substantive appeal within 60 days of the Statement of the Case. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of service connection for eye/vision problems by the appellant or his or her authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to eligibility for medical treatment under Section 1702 by the appellant or his or her authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim of service connection for GERD by the appellant or his or her authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The September 2009 Statement of the Case (SOC) that denied the claim for service connection for a back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 5. New and material evidence has been received, and the claim for service connection for a back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from February 2003 through September 2004. The Veteran also had various periods of active duty for training and inactive duty for training, including a period of active duty for training from November 1986 through March 1987. The appeal is before the Board of Veterans’ Appeals (Board) from January 2012, August 2018, and September 2018 Rating Decisions. In October 2020, the Veteran participated in a hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which is of record. At the hearing, the undersigned granted a request to hold the record open for 60 days. Additional evidence was submitted during this time period.   Withdrawn Claims 1. The petition to reopen the claim of service connection for eye/vision problems has been withdrawn. 2. The claim of entitlement to eligibility for medical treatment under Section 1702 has been withdrawn. 3. The petition to reopen the claim of service connection for GERD has been withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, through his authorized representative, has withdrawn the appeal regarding the issues of service connection for eye/vision problems, eligibility for medical treatment under Section 1702, and service connection for GERD. See October 6, 2020 Correspondence. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and the appeal is dismissed as to these issues. 4. New and material evidence was submitted to reopen a claim of service connection for a back condition. The claim for service connection for a back condition was originally denied in an April 2008 rating decision. The Veteran filed a timely Notice of Disagreement, and in September 2009, the RO issued a Statement of the Case and notified the Veteran of his appellate rights. The Veteran did not timely file a substantive appeal and VA did not receive new and material evidence within the 60-day appeal period of the statement of the case. Therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 decision makers. Material evidence is defined as 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. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The new evidence associated with the file since the final decision includes 2012 MRI imaging with evidence of particular back disabilities, an August 2016 VA examination of the back, and pleadings and testimony from the Veteran that his back did not present with problems prior to the motor vehicle accidents during active service. He further testified to continuity of symptoms since service. See Hearing Transcript. This evidence is new as it was not before adjudicators when the Veteran’s claim was last denied in the September 2009 Statement of the Case, and it is not cumulative or redundant of the evidence of record at the time of that decision. The evidence is material in that it may show that the Veteran’s disability was caused by an in-service incident. Thus, it relates to an unestablished fact necessary to substantiate the claim for service connection for a back condition and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to an effective date prior to April 20, 2018 for the grant of service connection for unspecified trauma and stressor related disorder, now with unspecified depressive disorder, is remanded. In September 2018, the Veteran’s representative submitted a notice of disagreement as to the effective date assigned in the August 2018 rating decision for the award of service connection for unspecified trauma and stressor related disorder, now with unspecified depressive disorder. To date, a statement of the case (SOC) has not been issued as it relates to this issue. The Board is required to remand the claim for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The merits of this matter are not before the Board at this time and will only be before the Board if the Veteran timely files a substantive appeal of the issue after the SOC is issued. 2. Entitlement to a rating in excess of 50 percent for unspecified trauma and stressor related disorder, now with unspecified depressive disorder; 3. Entitlement to service connection for PTSD is remanded; and 4. Entitlement to service connection for a TBI is remanded. The Veteran seeks a rating in excess of 50 percent for his service-connected psychiatric disorder. He also seeks service connection for PTSD and a TBI. He contends he has been diagnosed with PTSD and a TBI and contends they are related to incurrences of active duty. Although the Veteran has been awarded service connection for a psychiatric disorder, such does not preclude the Veteran from being awarded service connection for both PTSD and other psychiatric disorders. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (noting that different psychiatric diagnoses may have symptoms that are not overlapping). Regarding the claims for service connection for PTSD and TBI, reexamination is warranted as the August 2016 and October 2019 VA examinations are inadequate to definitively address the questions of whether the Veteran has current diagnoses of PTSD and TBI. Specifically, the VA examinations did not note or discuss the various entries in the treatment notes that note diagnoses of PTSD and TBI. See, e.g., Gainesville VAMC Treatment Records (labeled as April 2016 CAPRI, containing numerous entries regarding diagnosis of and treatment for TBI). When an examination report does not contain sufficient detail, remand is required “for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.” Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, remand is required and ordered for contemporaneous and thorough VA examination(s) that address(es) whether the Veteran has any residuals of a TBI related to service during the period on review, or whether the Veteran has a diagnosis of PTSD related to an in-service stressor. The Board finds the issue of the appropriate rating for the service-connected psychiatric disorder is intertwined with the remanded issue regarding entitlement to an earlier effective date and the claim seeking service connection for PTSD, as resolution of these claims may affect the evaluation of the disability and the period under review. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Accordingly, a decision on this issue must be deferred, and a new VA examination should be conducted to assess the severity of the Veteran’s symptoms attributable to (or unable to be differentiated from) service-connected psychiatric disability for the period on review. 5. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he has sleep apnea secondary to a service-connected psychiatric disability, and submitted an article suggesting a correlation between PTSD and sleep apnea. See October 2020 Correspondence. To date, the Veteran has not been afforded a VA examination. As the submitted article suggests the condition may be related to a pending claim, a medical opinion as to whether the claimed condition is secondary to any service-connected psychiatric disability is warranted and so ordered. 6. Entitlement to service connection for a back condition is remanded. The Veteran seeks service connection for a back condition. He testified that he was involved in motor vehicle accidents during active service and that his symptoms have continued since. Review of the service treatment records shows treatment for back problems beginning following a motor vehicle accident in July 2003. He was noted to have tenderness to palpation in the midline of the lower back two days following the accident, with some pain felt on extension of the right leg during straight leg raise. He was assessed with back pain. The Veteran continued to seek treatment during service, and in June 2004, he reported persistent lower back pain since July 2003, with sharp constant low back pain that worsens with prolonged standing and sitting, and stiffness in the morning. The clinician noted the Veteran was positive for radicular pain, with tenderness to palpation at L3-5 paraspinals, and assessed him with lower back pain; the Veteran was prescribed pain medication. Post-service records show the Veteran continued to report back pain, with improvements after anti-inflammatories and muscle relaxants. April 2007 x-rays were noted to be normal. See April 2007 VA treatment records. He was further noted in September 2007 VA treatment records to have chronic back pain on his problem list. October 2012 MRI imaging provided an impression of bilateral neuroforaminal stenosis with effacement of the exiting root sleeves right greater than left at L5-S1. The medical opinion of record is inadequate. The August 2016 VA examination contained a negative nexus opinion, but it contains an inadequate rationale. The examiner opined that “episodes of symptoms most often are not related to nor caused by prior episodes,” and appeared to rely on the 2005 report of medical history to find the Veteran’s muscular strain/soft tissue issue resolved, without an adequate discussion of the Veteran’s reported chronic and recurrent pain without intercurrent injury. The examiner did not explain why the conditions shown on the 2012 MRI were not etiologically related to the 2003 accident in service, but noted that a 2016 non-service-connected motor vehicle accident and the aging process outside of service was the cause of the Veteran’s current back condition. There is no discussion of the 2012 MRI being completed prior to the 2016 motor vehicle accident and that back disability was noted prior to that accident. On careful consideration, remand of this claim is warranted for an addendum opinion. After review of the file, the examiner should opine whether it is at least as likely as not that any current back disability is related to any incurrence of active duty, or initially manifested during active duty with chronicity. The examiner should address whether any diagnosed chronic back conditions of record shown in the 2012 MRI as likely as not manifested during active service. 7. Entitlement to TDIU is remanded. In January 2020 written argument, the Veteran’s representative alleged that the Veteran’s psychiatric disability caused him to be unable to sustain full time employment and raised the matter of entitlement to TDIU. As this claim was raised in conjunction with his claim seeking a higher rating for his psychiatric disorder, it is part and parcel of that claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim is inextricably intertwined with the claim seeking a higher rating, and remand is warranted as a result. As these claims are being remanded, the Veteran is apprised that he may submit any additional evidence he has in support of these claims, to include any outstanding outside treatment records or any private medical opinions. The matters are REMANDED for the following action: 1. Associate any updated VA treatment records from January 2020 to the present with the file. 2. Issue a Statement of the Case with regards to the issue of entitlement to an effective date prior to April 20, 2018 for the grant of service connection for unspecified trauma and stressor related disorder, now with unspecified depressive disorder. 3. Schedule the Veteran for VA examination(s) to assess the severity of his service-connected psychiatric disorder(s) for the entirety of the period under review, and to identify the nature and etiology of any PTSD disability, residuals of TBI, and sleep apnea. For the psychiatric examination: (a.) The examiner should, after full review of the record, identify if the Veteran has a diagnosis of 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 a verified in-service stressor. (b.) Assess the current severity of his service-connected psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. For the TBI exam: The examiner should, after full review of the record, identify if the Veteran has a diagnosis of any residuals of a TBI. The examiner must explain how the diagnostic criteria are met and opine whether any diagnosis of TBI or residuals of TBI is at least as likely as not related to any in-service incurrence. For the sleep apnea exam: (a) The examiner should, after review of the record, opine as to whether the Veteran’s sleep apnea is at least as likely as not related to any in-service event, injury, or disease, including lay reports that the Veteran snored. (b) The examiner should, after review of the record, opine as to whether it is at least as likely as not that the Veteran’s sleep apnea condition is caused or aggravated (i.e., any worsening of the condition beyond its natural progression) by the Veteran’s service-connected psychiatric disability. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Forward the Veteran’s claims file to an appropriate clinician to provide an opinion on the nature and etiology of any back disability. The clinician must review the claims file. If the reviewing clinician determines an examination (including via telehealth) is needed in order to provide the requested opinions, then one must be scheduled.   The clinician is asked to provide a response to the following: (a) Is any back disability at least as likely as not related to service, including the July 2003 motor vehicle accident? (b) Is it at least as likely as not that any back disability (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? In providing the requested opinion, the clinician should consider the Veteran’s description of his 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 current disability, this should be noted. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.   5. Complete any notice and development needed on the claim seeking entitlement to TDIU and then adjudicate the claim. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. C. KING 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.