Citation Nr: 21014711 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-07 003 DATE: March 15, 2021 ORDER New and material evidence having been received, the matter of entitlement to service connection for a low back disability is reopened. New and material evidence having been received, the matter of entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for a low back disability is granted. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), is granted. FINDINGS OF FACT 1. Evidence received since the January 2000 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a low back disability. 2. Evidence received since the October 1998 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. 3. The evidence is at least in equipoise as to whether the Veteran’s low back disability was incurred in his active military service. 4. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed acquired psychiatric disorder to include MDD is caused by his now service-connected low back disability. CONCLUSIONS OF LAW 1. The January 2000 rating decision denying the claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The October 1998 rating decision denying the claim of entitlement to service connection for depression is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to warrant reopening of the claims of service connection for a low back disability and an acquired psychiatric disorder. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 4. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder to include MDD on a secondary basis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from April 1966 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen claims of entitlement to service connection for major depressive disorder and a low back disability. The Veteran filed a notice of disagreement. A June 2012 rating decision reopened and denied the Veteran’s claim of entitlement to service connection for a low back disability. A statement of the case (SOC) was issued as to both claims in February 2014 and the Veteran subsequently perfected a timely appeal in March 2014. Although the RO reopened the Veteran’s low back disability claim, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the low back disability claim. The Veteran passed away in August 2014. The Veteran’s son request for substitution was approved by the RO in February 2021. The claim is now properly before the Board. The Veteran was scheduled to appear for a videoconference hearing before a Veterans Law Judge on April 13, 2015. As indicated above, he passed away before the hearing could be conducted. In April 2015, the appellant’s attorney requested that the hearing be rescheduled. However, in June 2015, the appellant’s attorney withdrew the hearing request pursuant to 38 C.F.R. § 20.704(e). New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the 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 decisionmakers. 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this matter, an August 1998 rating decision denied the Veteran’s original claims of entitlement to service connection for depression and chronic low back pain. VA treatment records were added to the claims file, and an October 1998 rating decision again denied the claims of entitlement to service connection for depression and a low back disability. The Veteran did not appeal the October 1998 rating decision. As new and material evidence was not received within one year of the decision, it became final as to the identified claims. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Under these circumstances, the RO’s August 1998 rating decision is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In a January 2000 rating decision, the RO confirmed and continued its denial of the Veteran’s claim of entitlement to service connection for a back injury. The Veteran did not appeal the denial and new and material evidence was not received within one year of the decision. As such, the January 2000 rating decision became final as to the low back disability claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond, supra. As such, the RO’s January 2000 rating decision is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. Thus, the Board has reviewed the entire record, with attention to the additional evidence received since the last final decisions in October 1998 and January 2000. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claims. Significantly, amongst the evidence subsequently submitted, the Veteran’s attorney provided a psychiatric examination and opinion from a private psychologist, as well as an opinion from a private orthopedic surgeon. The Board finds that this evidence is new, as it was not previously considered by the RO, and material as it directly relates to issues in controversy; in particular, the etiology of the claimed disabilities. As such, the claims of entitlement to service connection for a low back disability and an acquired psychiatric disorder are reopened. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weight its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Entitlement to service connection for a low back condition. The appellant asserts that the Veteran was entitled to service connection for a low back disability, which was incurred during his active duty service. For the reasons set forth below, the Board finds that service connection is warranted. A review of the Veteran’s service treatment records (STRs) show that he had a back strain from lifting a heavy load on Oct 23, 1968. See #1 August 2016 STR-Medical, p. 9. The STRs show that the Veteran complained of back pain again in July 1969 and twice in October 1969, when the Veteran stated that he had “back pain over past 1 year.” See #2 August 2016 CAPRI, pp. 2, 4, 10. In the Veteran’s separation report of medical history, he wrote ‘yes’ to the question if he ever had back pain in service, without further comment. See #1 August 2016 CAPRI, p. 6. In the Veteran’s separation report of medical examination, a back condition was not found. The physician wrote “occasional back pain, has been seen by orthopedic surgeons who state there is no structural cause for pain. No complications, no sequelae.” Id at 3, 7. The Veteran’s post-service treatment records were silent as towards any complaint, treatment or diagnosis of back pain until April 1998. A magnetic resonance imaging (MRI) screening report mentioned “back problems of a long-standing nature.” See June 1998 Medical Treatment Record – Government Facility, p. 1. At that time, the Veteran reported that his back problems began in service after he injured his back lifting a tire. Id. In April 2011 the Veteran called the VA and expressed his intention to file a claim of service connection for a low back condition. In doing so, his former spouse submitted a letter to VA in which she stated that the Veteran described experiencing back injury while working in the motor pool when a heavy tire that he was handling fell on him. See April 2012 Buddy/Lay Statement. The Veteran was also provided a VA examination in August 2011. There, the examiner diagnosed the Veteran with lumbosacral strain, noting a date of diagnosis in 1968. The Veteran stated that his back pain began in 1968 when he injured his back in service and has had back pain since. See April 2011 VA examination. In a May 2012 VA medical opinion, the examiner opined that the Veteran’s current back disability was less likely than not caused by his military service, as “there is no medical evidence of ongoing back problems following his discharge from the military from 1970 until 1998. Most significant medical evidence is a 1998 VA note indicating “back pain from the past 5 years.” See May 2012 VA examination, p. 15. In June 2014, the Veteran was examined by a private orthopedic surgeon, Dr. F.G. In a June 2014 medical opinion, Dr. F.G. explained that, in addition to the in-person examination, he thoroughly reviewed the Veteran’s medical history. Dr. F.G. offered the following nexus opinion: “It is more likely than not that there was an injury to the annulus of the intervertebral discs and the subchondral end plates in the 1968 incident and subsequently over the years, there has been development of further degenerative changes of the lumbar motion segments up through to the present.” See June 2015 Medial Treatment Record – Non – Government Facility. Dr. FG. continued, “[t]he incident of 1968 initiated the subsequent changes and is responsible for his present condition.” Id. The Board finds that both the May 2012 VA examination and the June 2015 private examination are of significant probative value. Both the VA and private examiners conducted in-person examinations, reviewed the Veteran’s medical record, considered his lay statements and provided rationales based upon the record. The record clearly shows that the Veteran suffered from a low back condition during the appellate period and that he suffered a back injury in service. As such, the first and second elements of service connection are met. Furthermore, the Board finds that as the record contains probative positive and negative nexus opinions, that the evidence is at least in equipoise as to whether the Veteran’s disability was as likely as not related to his military service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the appellant’s favor and find that the evidence supports the grant of service connection for a low back disability. See 38 U.S.C. § 5107. Entitlement to service connection for an acquired psychiatric disorder, to include MDD. The appellant asserts that the Veteran was entitled to service connection for an acquired psychiatric disorder as secondary to his low back disability. See the Veteran’s statement dated June 1998 and the written argument of the Veteran’s attorney dated June 2015. For the reasons set forth below, the Board finds that service connection is warranted on a secondary basis. Post-service treatment records document the Veteran’s complaints of depression and anxiety in April 1998; a diagnosis of major depression with preceding dysthymic disorder was indicated. A diagnosis of MDD was noted in May 1998. The Veteran was afforded a VA mental health examination in August 2011 at which time he was diagnosed with MDD and anxiety disorder, not otherwise specified (NOS). The examiner indicated that the Veteran does not meet the full criteria for a diagnosis of posttraumatic stress disorder (PTSD), but does meet the criteria for anxiety disorder and depression. The examiner noted that the Veteran has been diagnosed with these conditions “quite some time.” The examiner opined that the Veteran’s “current medical problems are likely to exacerbate his overall mental health issues.” In an August 2014 medical opinion, Dr. J.N. confirmed a continuing diagnosis of MDD. Dr. J.N. reported that the Veteran had in-service stressors including injuring his back and witnessing numerous coffins coming in on airplanes from Vietnam. Dr. J.N. interviewed the Veteran and thoroughly reviewed his medical history. As to the question of secondary service connection, Dr. J.N. stated, “[p]atients who experience medical conditions which involve loss of function and chronic pain often develop depression. It appears at least as likely as not that this is what happened to [the Veteran].” Dr. J.N. explained that the Veteran’s MDD “appears to arise at least in part from his service-connected back injury and the attendant limitation of function and chronic low back pain.” Dr. J.N. further noted that the Veteran’s depression is also, in part, related to stressful life events including his in-service back injury and exposure to many coffins returning from Vietnam, as well as the death of a friend in a car accident. See June 2015 Medical Treatment Record – Non – Government Facility. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability, currently diagnosed as MDD, is secondary to his now service-connected low back disability. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for an acquired psychiatric disability, currently diagnosed as MDD, on a secondary basis. See 38 U.S.C. § 5107. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.