Citation Nr: 21014540 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-12 203 DATE: March 12, 2021 ORDER The petition to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for left leg disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and Major Depressive Disorder, is remanded. Entitlement to SMC at the housebound rate is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for PTSD was denied by a January 2004 rating decision. The Veteran did not perfect an appeal of this decision, and it became final. 2. Since the January 2004 rating decision, the Veteran has submitted new evidence that relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s left leg disability was not incurred during, and is not otherwise related to, the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The January 2004 rating decision that denied the Veteran’s claim for service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the January 2004 rating decision is new and material, and the claim for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for a left leg disability have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is not of record due to technical difficulties. The Veteran was sent correspondence in January 2021 informing him of the unavailable transcript and the opportunity to have another hearing. No response was received; thus, the Board will proceed with adjudication. 1. The petition to reopen the claim of service connection for PTSD Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened, and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decision makers, and “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 of record at the time of the last 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). In June 2003, the Veteran filed for service connection for PTSD. The Veteran stated that his treatment in bootcamp by his instructor was outside the scope of acceptable behavior resulting in physical and psychological abuse. The Veteran’s claim for service connection for PTSD was denied by a January 2004 rating decision. The RO stated that the medical evidence of record did not support a diagnosis of PTSD. Accordingly, the RO determined that service connection for PTSD must be denied due to lack of evidence of a current disability. The decision was not appealed and the denial of the Veteran’s claim for service connection became final. 38 U.S.C. § 7105. Since the January 2004 rating decision, additional evidence has been associated with the claims file. Treatment records from the Brooksville VA Community Based Outpatient Clinic from April 2014 report a diagnosis of PTSD. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it relates to the previously unestablished element of whether the Veteran has a current disability of PTSD. When viewed with the previous evidence of record, this evidence, which indicates a current diagnosis of PTSD, is neither cumulative nor redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim. As such, new and material evidence has been received, and reopening the claim is warranted. Service Connection, Generally Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. 2. Entitlement to service connection for left leg disability The Veteran seeks service connection for a left leg disability. Unfortunately, the Board finds that service connection for a left leg disability must be denied. The Board notes that the evidence of record establishes that the Veteran has a current left leg disability manifested by the residuals of a distal tibia/fibula fracture status post open reduction internal fixation. See February 2016 VA examination. The Veteran’s service treatment records report that the Veteran suffered an ankle sprain in February 1970. It was treated with an Ace bandage and light duty for twenty-four hours. The Veteran’s examination at separation from service in March 1970 did not report any problems related to the Veteran’s left ankle and provided a normal examination of the lower extremities. While the Veteran has a current disability and there is evidence of an in-service injury, the Board finds that service connection must be denied as the weight of the competent, credible evidence of record does not support a nexus between the Veteran’s condition and his period of active service. In February 2016, the Veteran was provided a VA examination related to his claim for service connection a left leg disability. When reporting the Veteran’s medical history, the examiner noted the Veteran reports that he did not recall having had any injury to his ankles during his period or service or any injury to his ankles/legs many years ago. Rather, the Veteran stated that he did not recall having pain in his ankles or legs after discharge from service until he was involved in a motorcycle accident about six to seven years prior. The Veteran reported that he had been hit by a car that resulted in an injury to his left leg below the knee including two fractures of the same bone. After review of the claims file, the 2016 examiner opined that the Veteran’s current left leg disability was less likely as not incurred in, or caused by, the Veteran’s period of service, including the February 1970 ankle sprain. The examiner supported this opinion by noting that there were no complaints of an ankle injury in the Veteran’s service medical records after February 1970. Further, review of the Veteran’s available medical records since separation from active service were silent for complaints of (and treatment for) a recurrent left leg/ankle condition until the Veteran’s traumatic motor vehicle accident of 2010. The Board finds that the weight of the competent medical evidence of record does not indicate a link between the Veteran’s residuals of a distal tibia/fibula fracture status post open reduction internal fixation, or any current left leg disability, and his period of active service. The Board finds probative the opinion of the 2016 examiner as the opinion is based upon a thorough rationale that is supported by the evidence of record, including consideration of the lay statements provided by the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Veteran himself has provided no indication that any current left leg disability is related to any period of service beyond the initial claim for service connection and the following appeal. The Board notes the Veteran’s reports to the 2016 VA examination that the Veteran did not recall an in-service left leg injury or any history of left knee complaints prior to his 2010 motor vehicle accident. The Board also notes that none of the competent medical evidence of record indicates any relationship between a current left leg disability and the Veteran’s period of service. In summary, the Board finds that the preponderance of the evidence weighs against a finding that any current left leg disability, to include the residuals of a distal tibia/fibula fracture status post open reduction internal fixation, are due to the Veteran’s period of active service. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA’s duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The evidence indicates that adequate notice was provided to the Veteran and that VA complied with the requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159(b). With regard to the duty to assist, the Board notes that it is remanding to obtain potentially outstanding records from the Social Security Administration (SSA) and private treatment records from the Morton Plant Hospital; however, there is no indication that any of these records have any relevance to the Veteran’s claim for service connection for a left leg disability. The Veteran was granted SSA benefits in 2006 and he reported treatment at the Morton Plant Hospital in 1980 many years prior to the Veteran’s 2010 motorcycle accident that resulted in his left leg injury. As the evidence does not indicate any potential relationship between these outstanding records and the Veteran’s claim for service connection for a left leg disability, the Board finds that there is no duty to assist error in failing to obtain these records prior to adjudicating the Veteran’s claim for a left leg disability. Further, the evidence does not indicate that the Veteran has identified any relevant, outstanding records relevant to the Veteran’s left leg claim. As such, with regard to the Veteran’s claim for service connection for a left leg disability, the Board finds that that the duties to notify and assist have been met. 38 U.S.C. § 5103A (a)(2). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and Major Depressive Disorder, is remanded. In April 2012, the Veteran filed to reopen his claim for service connection for PTSD. In light of the Veteran’s reported symptoms and reported diagnoses, the Board has recharacterized the claim of service connection for PTSD as a claim for service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). With regard to the Veteran’s claim for service connection for an acquired psychiatric disorder, additional development must be conducted prior to adjudication by the Board. In August 2007, the Veteran submitted a copy of a decision indicating that the Veteran had been awarded disability benefits by the Social Security Administration (SSA). While VA requested the Veteran’s records from SSA at that time, the evidence indicates that the Veteran’s SSA records were never associated with the claims file and a formal statement of unavailability was not provided by SSA. Accordingly, the Agency of Original Jurisdiction (AOJ) should contact the SSA and obtain and associate with the claims file copies of the Veteran’s records regarding SSA benefits, including the medical records upon which any decision was based. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(2). Additionally, the Veteran has reported receiving private treatment from Morton Plant Hospital related to a suicide attempt in 1979 or 1980. While the Veteran previously submitted authorization to obtain these records, it does not appear that VA has attempted to obtain them. Accordingly, the Board finds that reasonable efforts should be undertaken to obtain and associate the records with the claims file. 2. Entitlement to SMC at the housebound rate is remanded. The claims for entitlement to SMC is inextricably intertwined with the claim of service connection for a psychiatric disorder; as such, it is also remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) The matters are REMANDED for the following action: 1. Undertake appropriate efforts to request from SSA any relevant information to include a copy of any decision awarding benefits and copies of any medical records upon which SSA may have based a decision. Document all requests for information as well as all responses in the claims file. 2. Undertake reasonable efforts to obtain and associate with the claims file any outstanding obtain any identified private treatment records related to the Veteran’s acquired psychiatric disorder, to include inpatient and outpatient records related to his treatment at the Morton Plant Hospital between 1979 and 1981. The Veteran should be asked to provide any needed assistance in identifying and obtaining these records. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.