Citation Nr: 21015322 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-27 124 DATE: March 17, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for PTSD is granted. Service connection for adjustment disorder with anxiety and depressed mood, and alcohol use disorder in remission, is granted. Service connection for lumbosacral strain is granted. REMANDED Entitlement to service connection for bilateral foot numbness and tingling is remanded. Entitlement to service connection for bilateral hand numbness and tingling is remanded. THE VETERAN’S CONTENTIONS The Veteran testified that ever since his foot injury during service, he has suffered from anxiety and depression. In support of his assertion that his mental health problems began in service, he described an incident in which he turned his weapon on his head, and on his superior. See October 2020 Board hearing transcript, pp. 4-6. He contends that he started drinking while in service in order to make himself feel better. See October 2020 Board hearing transcript, p. 5. He also contends that sexual advances on him when he was in Iraq also contributed to his psychiatric disability. See October 2020 Board hearing transcript, p. 10. He states that the problems that began in service continued, and currently include depression, anger issues, anxiety, and sleeping problems. See March 2015 notice of disagreement (NOD). In regard to his psychiatric disability, he also asserts that he is easily frustrated, grinds his teeth, and has stages of confusion. See March 2015 NOD. The Veteran testified that he injured his left foot while he was in Iraq, when there was a blast, and he fell on a rock. See October 2020 Board hearing transcript, pp. 3, 5-6. He stated that, initially, he was not allowed to go to sick call, but later went to sick call and, eventually, the emergency room. See October 2020 Board hearing transcript, p. 3. He asserted that his left foot problems have continued to the present time. See October 2020 Board hearing transcript, p. 6. The Veteran contends that he injured his back during service prior to going to Iraq, and that the injury worsened while he was in Iraq. See October 2020 Board hearing transcript, p. 8. He asserts that he has continued to have problems with his back to this day. See October 2020 Board hearing transcript, p. 9. At the Veteran’s July 2014 VA examination, he reported that when he gets anxious, he develops numbness in his hands and feet. He contended that while he was in the military, he was very stressed out and he now feels the stress from years ago is impacting him. See July 2014 VA examination. He testified that every once in a while, his fingers go numb and that this began approximately two to four months after he was put on crutches for his left foot injury. See October 2020 Board hearing transcript, p. 3, 7. In regard to his legs, he contends that sitting a certain way causes his legs to go to sleep and that he cannot stand for a long period of time. See March 2015 NOD. The Veteran contends that in denying his claims, the Department of Veterans Affairs did not properly assess his military and medical records. See June 2016 VA Form 9. FINDINGS OF FACT 1. A December 2009 rating decision denied the Veteran’s claim for service connection for PTSD. The Veteran did not appeal or submit new and material evidence within one year of the December 2009 rating decision and, as such, the decision became final. 2. Evidence presented since the December 2009 rating decision relates to unestablished facts necessary to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. The Veteran’s adjustment disorder with anxiety and depressed mood, and alcohol use disorder in remission, had its clinical onset during service. 4. The Veteran’s lumbosacral strain had its clinical onset during service. CONCLUSIONS OF LAW 1. The December 2009 rating decision that denied the Veteran’s claim for entitlement to service connection for PTSD is final; new and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric condition, to include PTSD and adjustment disorder with anxiety and depressed mood. 38 U.S.C. §§ 5108; 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for adjustment disorder with anxiety and depressed mood, and alcohol use disorder in remission are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for lumbosacral strain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1995 to June 1998 and October 1998 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran has requested that his case be advanced on the docket due to severe financial hardship. See February 2021 Report of General Information. The motion to advance the case on the docket is granted. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902. In light of the Veteran’s diagnosis of adjustment disorder with anxiety and depressed mood, the Board has expanded the Veteran’s claims for as entitlement to service connection for alcohol use disorder in remission (also claimed as depression and memory loss) and posttraumatic stress disorder (PTSD) to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks to reopen his claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran’s claim for entitlement to service connection for PTSD was denied in a December 2009 rating decision based on the finding that the lack of an in-service stressor. The Veteran did not appeal the December 2009 rating decision, and new and material evidence was not received within the appellate period; thus, the rating decision became final. 38 C.F.R. §§ 20.200, 20.202. Since December 2009, new evidence has been added to the claims file, which is material to the Veteran’s claim, including a May 2014 VA examination and October 2017 Mental Disorders Disability Benefits Questionnaire (DBQ). Accordingly, the Veteran’s claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 1. An acquired psychiatric disorder, to include PTSD, adjustment disorder with anxiety and depressed mood, and alcohol use disorder in remission Service treatment records show that the Veteran was depressed and had a diagnosis of adjustment disorder. See August 2004 outpatient medical record; October 2004 report of medical examination. The Veteran has diagnoses of adjustment disorder with anxiety and depressed mood, and alcohol use disorder in remission. See May 2014 VA examination; October 2017 DBQ. The VA examiner provided a positive nexus in regard to the relationship between the Veteran’s adjustment disorder with anxiety and depressed mood and his service. In regard to the Veteran’s diagnosis of alcohol use disorder in remission, the Board acknowledges that the May 2014 VA examiner determined that the Veteran’s alcohol use disorder in remission cannot be attributed to his military service as it began pre-military. However, the Board finds the Veteran’s testimony that he contends that he drank while in service in order to make himself feel better, is competent and credible. See October 2020 Board hearing transcript, p. 5; See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Based on the positive nexus opinion of the October 2017 VA examiner and the Veteran’s competent and credible testimony, the Board finds that service connection is warranted for adjustment disorder with anxiety and depressed mood, and alcohol use disorder in remission. However, the Board finds that service connection is not warranted for PTSD. Establishing service connection for PTSD, specifically, requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Board acknowledges that VA treatment records note at times. See June 2017 VA treatment record; July 2020 VA treatment record. However, the claims file does not contain medical evidence of a link between PTSD and the claimed in-service stressor. In November 2009, VA made a formal finding that there was a lack of information required to corroborate the stressor associated with the Veteran’s claim of service connection for PTSD. As such, service connection is not warranted for PTSD. The Board notes that because all acquired psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned encompassing all the Veteran’s overlapping psychiatric symptoms, however diagnosed. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). 2. Lumbosacral strain Service treatment records show that the Veteran was assessed with low back pain in service. See August 2004 outpatient medical record; October 2004 report of medical examination; September 2005 service treatment record; September 1997 service treatment record. The Veteran has a current diagnosis of lumbosacral strain. See May 2014 VA examination. In addressing whether this diagnosis is related to the back pain the Veteran experienced in service, the Board acknowledges that the August 2014 VA examiner opined that the Veteran’s low back pain was less likely than not related to his service. However, the Board finds the testimony of the Veteran regarding the onset of his symptoms and the continuity of his symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for chronic lumbosacral strain is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994); 38 C.F.R. § 3.303(a). REASONS FOR REMAND Service treatment records show occasional right lower extremity paresthesia manifested by numbness that lasts one to two minutes in March 2005 and leg weakness with numbness of the right and left legs in September 2005. See service treatment records. At the Veteran’s July 2014 VA examination, he stated that when he is anxious, he develops numbness in his hands and feet. The examiner opined that the Veteran did not have a diagnosis of a peripheral nerve condition or peripheral neuropathy and did not have a peripheral nerve condition that was related to service. However, in her rationale, the examiner noted that this is a subjective symptom secondary to a psychological issue. The Board must consider whether the Veteran’s bilateral foot and hand numbness and tingling results in functional impairment such that it may be considered a disability for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, a VA examination is warranted. In light of the Veteran’s newly service-connected adjustment disorder with anxiety and depressed mood, and alcohol use disorder in remission, and lumbosacral strain, the examiner must also consider whether the Veteran’s bilateral foot and hand numbness and tingling is secondary to these service-connected conditions. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran’s own descriptions of the history of his bilateral foot and hand numbness and tingling. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After the above has been completed to the extent possible, forward the Veteran’s claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran’s bilateral foot and hand numbness and tingling. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Specifically determine if the Veteran has a hand and/or foot disorder, considering his reported symptoms of pain, and, even if the criteria for a current diagnosis are not met, whether the Veteran’s hand and/or foot disorder results in functional impairment such that the it may be considered a disability for VA compensations purposes. (b.) For each condition identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service. (c.) For each condition identified in part (a), please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the condition was caused by his service-connected adjustment disorder with anxiety and depressed mood, and/or alcohol use disorder in remission. (d.) For each condition identified in part (a), please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the condition was aggravated by his service-connected adjustment disorder with anxiety and depressed mood, and/or alcohol use disorder in remission. (e.) For each condition identified in part (a), please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the Veteran’s bilateral foot and hand numbness and tingling was caused by his service-connected lumbosacral strain. (f.) Please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the Veteran’s bilateral foot and hand numbness and tingling was aggravated by his service-connected lumbosacral strain. For the purpose of providing the opinion(s) requested in part (b) and (f), please accept as valid the Veteran’s statements that he develops numbness in his hands and feet when he is anxious, and that his fingers began going numb approximately two to four months after he was put on crutches for his left foot injury, and state whether a nexus between any of the Veteran’s conditions and his service and/or his service-connected disability is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.