Citation Nr: 21014609 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 20-05 582 DATE: March 15, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression, anxiety, alcohol use disorder, and drug use disorder, is reopened. New and material evidence having been presented, the claim of entitlement to service connection for hypertension is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a traumatic brain injury (TBI) is reopened. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a TBI is remanded. Entitlement to service connection for a right-side head scar is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. In a September 2014 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for an acquired psychiatric disorder, hypertension, and a TBI. The Veteran was informed of the decision and of his appellate rights, but he did not appeal. There was also no new and material evidence received within one year of the determination. 2. Evidence has been received since the September 2014 rating decision that is new, relates to unestablished facts, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for an acquired psychiatric disorder, hypertension, and a TBI. CONCLUSIONS OF LAW 1. The September 2014 rating decision that denied service connection for an acquired psychiatric disorder, hypertension, and a TBI is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for an acquired psychiatric disorder, hypertension, and a TBI. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1985 to May 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a notice of disagreement to the October 2018 rating decision in February 2019. The AOJ issued a statement of the case in December 2019. The Veteran submitted his substantive appeal in February 2020. The Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder, hypertension, and a TBI, were originally denied in a September 2014 rating decision. In December 2019, the Veteran’s representative submitted a statement requesting that the Veteran’s appeal be expedited due to financial hardship. The Veteran’s representative also submitted an eviction notice with court proceedings demonstrating that the Veteran is in imminent risk of being homeless. The Board finds that this is good cause to advance the case on the docket. Thus, the Motion to Advance on the Docket (AOD) is granted and the appeal is advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(b), 38 C.F.R. § 20.800(c). In order to fully consider the Veteran’s claim, the issue of entitlement to service connection for an acquired psychiatric disorder has been recharacterized as set forth above. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that he has an acquired psychiatric disorder due to an accident at Fort Dix and trauma during his service in Korea. He states that while at Fort Dix, he was involved in an accident related to a mine and he was hit with shrapnel on the right side of his head. He also relates that he suffered traumatic experiences when he was stationed in Korea, including seeing dead bodies and being shot at. He maintains that he has hypertension which is a direct result of his acquired psychiatric disorder. The Veteran also contends that he has a scar on the right side of his head and a TBI due to being hit in the head with shrapnel at Fort Dix. He also maintains that he was treated for pseudofolliculitis barbae during his military service and continues to suffer from the condition. The Veteran contends that he was treated for low back and cervical conditions in service, and thus should be entitled to service connection for those disorders. New and Material Acquired Psychiatric Disorder, TBI, and Hypertension In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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.” See 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). As noted above, the Veteran’s claims for service connection for an acquired psychiatric disorder, TBI, and hypertension, were previously denied in a September 2014 rating decision. The Veteran was notified of the September 2014 rating decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the September 2014 decision. Therefore, the September 2014 rating decision is final as to the issues of entitlement to service connection for an acquired psychiatric disorder, a TBI, and hypertension. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103. In October 2018, the Veteran submitted an application requesting that his claims for a TBI, acquired psychiatric disorder, and hypertension be reopened. He stated that he had injured his head during a training exercise at Fort Dix, New Jersey, in December 1986 or January 1987, and that he was sent by ambulance to McGuire Clinic. Additionally, an October 2018 VA treatment record notes that the Veteran reported being in a mine accident during training at Fort Dix, where he suffered an injury to his head due to shrapnel, and was hospitalized. Additional statements have also been received from the Veteran’s mother, brother, and sister, which relate their observations of the Veteran’s personality changes following his discharge from service. The Veteran’s brother and sister both relate that the Veteran suffered from a terrible mine accident which changed his whole life. The Veteran’s claims of service connection for a TBI, acquired psychiatric disorder, and hypertension were denied because there was insufficient evidence to show that the Veteran had an in-service incurrence, treatment for, or diagnoses of those disorders. The September 2014 rating decision was based on a lack of evidence that the Veteran had a shrapnel injury as a result of his duties in Korea. However, it is not the Veteran’s contention that the shrapnel accident occurred in Korea, but that it occurred due to a mine accident while stationed at Fort Dix. The accident at Fort Dix is the basis for the Veteran’s service connection claim for a TBI, is one of the in-service stressors indicated by the Veteran for his acquired psychiatric disorder claim, and the Veteran’s hypertension claim is based on his acquired psychiatric disorder. As the September 2014 denial was based on the lack of evidence of a shrapnel injury while in Korea, the AOJ had not considered or developed for the Veteran’s contention that he was injured by shrapnel at Fort Dix. As such, the new evidence shows that there may be outstanding medical records that have not been associated with the record that would demonstrate the Veteran suffered a shrapnel injury to the head while stationed at Fort Dix. The new evidence relates to the unestablished fact that the Veteran suffered a shrapnel injury to the head while in service and raises a reasonable possibility of substantiating the claim. The fact that the Veteran has indicated that there should be evidence that he was hospitalized for his shrapnel injury opens the possibility that each of the Veteran’s claims could be substantiated, as there may be evidence that could reasonably link the Veteran’s claimed conditions to an in-service incurrence. Additionally, with regard to the Veteran’s claim for an acquired psychiatric disorder, the Veteran’s claim was originally denied because he did not have a diagnosis. However, new medical evidence shows that the Veteran has been diagnosed with PTSD, major depressive disorder, anxiety, alcohol use disorder, and drug use disorder. Therefore, the new evidence relates to an unestablished fact, and as the Veteran’s injury at Fort Dix is a claimed stressor, for the reasons discussed above, there is a reasonable possibility of substantiating the claim. Furthermore, the Veteran has asserted that his claim for hypertension is secondary to his acquired psychiatric disorder. In December 2020, he submitted medical literature which notes that hypertension prevalence was found to be higher for individuals with PTSD. Given that the Veteran’s claim for an acquired psychiatric disorder may be related to his service, the article submitted is new and relates to an unestablished fact, as it connects his hypertension to his acquired psychiatric disorder. Accordingly, the Board finds that the previously denied claims of service connection for an acquired psychiatric disorder, hypertension, and a TBI, are reopened. REASONS FOR REMAND Acquired Psychiatric Disorder, TBI, Hypertension, Head Scar While the Board regrets the additional delay, the Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder, hypertension, a TBI, and a right-side head scar must be remanded. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran reports that he was sent to the McGuire Clinic by ambulance due to a mine accident that resulted in his suffering shrapnel to the head, which caused a right-side head scar and a TBI. As such, it appears there may be medical records from the McGuire Clinic that would be relevant to each of the claimed conditions. The VA has a duty to obtain all relevant records in the custody of a Federal department agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In December 2020 argument, the Veteran’s attorney asserted that the Veteran underwent behavioral changes during service which are documented in his personnel records. Notably, a September 1986 record notes that the Veteran was awarded an Oak Leaf Cluster for meritorious achievement, however, following service in Korea, the Veteran was also noted to have gone AWOL in March 1987. In a December 2013 private opinion, S.S. (initials used to protect privacy), the Veteran’s private physician, concluded that it was more likely than not the Veteran’s psychiatric disabilities are due to his experiences within the military. However, as noted above, further development is necessary regarding the Veteran’s contention that he injured his head in service. In addition, the Veteran has asserted that his hypertension is secondary to his acquired psychiatric disorder, however, the evidence of record does not contain any medical opinion that specifically relates the Veteran’s hypertension to his psychiatric disorders. The Veteran has also not received any VA examinations pertaining to his claims. VA must obtain an examination in service connection claims when there is an indication that the current disability may be associated with the Veteran’s service and there is a lack of sufficient evidence to decide the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). On remand, the Veteran should be afforded VA examinations to assess the nature and etiology of his acquired psychiatric disorder, hypertension, TBI, and right-side head scar. Accordingly, the Veteran’s claims of service connection for an acquired psychiatric disorder, hypertension, a TBI, and a right-side head scar must be remanded. Cervical Spine and Low Back Service treatment records show that the Veteran repeatedly sought treatment for low back pain. Specifically, in May 1986 and June 1986, the Veteran sought treatment for low back pain. In a March 1987 record, the Veteran was noted to have low back pain for the last 3 years, which had worsened after bridge building. In the consultation report, the examiner noted derangement of L4-5. A subsequent March 1987 radiologic report noted slight anterior wedging of L-1, suggesting old trauma has been sustained. In a June 1987 record, the examiner noted that the Veteran experienced periodic increases in severity of his back pain. The examiner assessed that the pain resulted from a strained back muscle. The Veteran also sought treatment for his cervical spine. In a January 1987 service treatment record, the Veteran reported having an acute stiff neck with no history of trauma. In the consultation report, the examiner noted a diagnosis of acute cervical strain. Given the Veteran’s history of low back and cervical spine symptoms in service, the Board finds that VA examinations are needed to address the nature and etiology of his low back and cervical spine disorders. Accordingly, the Veteran’s claims for a low back and cervical spine disorders must be remanded. Pseudofolliculitis Barbae The Veteran’s service treatment records demonstrate that the Veteran was seen for acne on the face in July 1986. Although no medical documentation is of record, the Veteran has stated that he has continued to suffer from bumps on his face after shaving since his military service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, there appears to be a reasonable possibility of an association between the Veteran’s skin disability documented in service and his current skin disability. Therefore, a remand is warranted so the Veteran may be afforded a VA skin examination to determine the nature and etiology of his skin disability. The matters are REMANDED for the following action: 1. Ask the Veteran and his representative to provide the names and addresses of any medical provider, VA or private, who has treated him for an acquired psychiatric disorder, hypertension, a TBI, right-side head scar, cervical spine disorder, low back disorder, and pseudofolliculitis barbae. After securing any necessary releases, the AOJ should request any and all records identified. The AOJ should also secure any outstanding VA medical records. 2. Make every effort to obtain and associate with the claims file, medical records from the Air Force outpatient medical treatment facility 87th Medical Group - McGuire Clinic, operating on Joint Base McGuire-Dix-Lakehurst, New Jersey. 3. After obtaining any identified and outstanding records, the AOJ should contact the Joint Services Records Research Center (JSRRC) or any other appropriate entity to attempt to verify the Veteran’s claimed stressor of injuring his head during a training exercise at Fort Dix. If the stressor cannot be verified, the AOJ should document the attempts that were made to corroborate the claimed stressor and explain in writing why further attempts to locate or obtain corroborating government records would be futile. The AOJ should then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant should then be given an opportunity to respond. 4. After the above development has been completed, schedule the Veteran for a VA mental disorders examination to determine the nature and etiology of his acquired psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. In rendering these opinions, the examiner should consider and address the Veteran’s reported behavioral changes in service, including his March 1987 record of going AWOL. The examiner should also address the December 2013 positive opinion issued by S.S. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After the foregoing development is completed, schedule the Veteran for an examination to determine the nature and etiology of his claimed hypertension. The examiner should obtain a complete, pertinent, history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to the Veteran’s VA treatment records, lay assertions, and the pertinent medical evidence. Any testing deemed necessary should be conducted. Based on the examination and review of the record, the examiner should determine if the Veteran has a diagnosis of hypertension; if so, opine as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s hypertension: (1) arose during service or is otherwise related to any incident of service; (2) was caused by, or aggravated by, his acquired psychiatric disorder. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s acquired psychiatric disorder did not cause his hypertension, the examiner should still address whether his acquired psychiatric disorder, including any treatment for the disorder, worsened his hypertension. The examiner is advised that the Veteran is competent to discuss symptoms and treatment and that such reports must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 6. After the foregoing development has been completed, schedule the Veteran for an examination to determine the nature and etiology of the claimed TBI and right-side head scar. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. Based on the examination and review of the record, the examiner should determine if the Veteran has diagnoses of a right-side head scar and a TBI; and if so, provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s right-side head scar and TBI were incurred in service or are in any way related to any event or events of service. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 7. After completing the foregoing development, the Veteran should be afforded VA examinations to determine the nature and etiology of any low back and cervical spine disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any current low back and/or cervical spine disorder is related to his military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should consider and address the May 1986, June 1986, January 1987, March 1987, April 1987, May 1987, and June 1987 service treatment records that document low back or cervical spine symptoms. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 8. After the foregoing development has been completed, schedule the Veteran for an examination to determine the nature and etiology of his claimed pseudofolliculitis barbae. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to the VA treatment records, lay assertions, and the pertinent medical evidence. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. Based on the examination and review of the record, the examiner is asked to provide a diagnosis of the Veteran’s skin condition and to opine as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the currently diagnosed skin condition is related to his military service. In rendering this opinion, the examiner should specifically address the July 1986 service treatment record where the Veteran sought treatment for acne. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. (Continued on the next page)   9. After completing these actions, the AOJ should conduct any other development as may be indicated. J. SAIKH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, Associate 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.