Citation Nr: 21024682 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-42 536 DATE: April 23, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for low back disorder is denied. New and material evidence having been received, the application to reopen the claim of service connection for a neurological disorder of the right lower extremity (RLE) is granted. New and material evidence having been received, the application to reopen the claim of service connection for a neurological disorder of the left lower extremity (LLE) is granted. New and material evidence having been received, the application to reopen the claim of service connection for an acquired psychiatric disorder is granted. Service connection for a right ankle disorder is denied. REMANDED Service connection for a RLE neurological disorder. Service connection for a LLE neurological disorder. Service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). FINDINGS OF FACT 1. The Veteran had active duty from May to July 1986. 2. In an unappealed August 2014 rating decision, the RO denied service connection for low back, bilateral lower extremity neurological, and psychiatric disorders. That decision became final after one year. 3. The evidence submitted since the August 2014 rating decision, to the extent that it is new, is not material with regard to the claim for low back disorder. 4. The evidence submitted since the August 2014 rating decision relates to unestablished facts necessary to substantiate the claims of service connection for a bilateral lower extremity neurological disorder and an acquired psychiatric disorder. 5. A right ankle disorder was not shown in service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The August 2014 rating decision which denied service connection for a low back disorder, RLE neurological disorder, LLE neurological disorder, and an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 2. The evidence received since the August 2014 rating decision is not new and material with respect to the claim of entitlement to a low back disorder and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The evidence received since the August 2014 rating decision is new and material with respect to the claim of entitlement to a RLE neurological disorder and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 4. The evidence received since the August 2014 rating decision is new and material with respect to the claim of entitlement to a LLE neurological disorder and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 5. The evidence received since the August 2014 rating decision is new and material with respect to the claim of entitlement to an acquired psychiatric disorder and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 6. A right ankle disorder was not incurred in service and was not proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1112, 1131, 5103(a) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in August 2017, the RO denied a request to reopen a claim of service connection for bipolar disorder with manic depression. The Veteran has also been diagnosed with an adjustment disorder and anxiety disorder. As such, the issue has been recharacterized as a request to reopen a claim of service connection for an acquired psychiatric disorder to better reflect the scope of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, the Veteran testified at hearings before a Decision Review Officer (DRO) in June 2018 and the undersigned Veterans Law Judge (VLJ) in September 2020. Transcripts of the hearings have been associated with the claims file. New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran was initially denied service connection for a low back disorder in February 2014 on the bases that there was no nexus between a lumbar spine disorder and in-service back complaints. The February 2014 decision further denied service connection for RLE and LLE neurological disorders on the basis that secondary service connection for his neurological disorders was not applicable as his lumbar spine disorder was not service connected and there was no evidence that he experienced in-service RLE and LLE neurological disorders. The decision also denied service connection for a psychiatric disorder, to include bipolar disorder and major depressive disorder (MDD), on the basis that the service treatment records (STRs) did not reflect complaints, treatment, or diagnoses of a psychiatric disorder. He timely requested reconsideration of the decision and in August 2014, the RO affirmed the February 2014 rating decision. The August 2014 rating decision is the last final denial as to the claims on appeal. The evidence at the time of the last final denial consisted of STRs, post-service medical treatment records, a December 2013 lay statement describing an in-service back injury and subsequent psychiatric diagnoses, buddy statements noting the Veteran’s volunteer work in his community, and a July 2014 VA examination opining that a herniated lumbar disc with degenerative disc disorder (DDD) and right-sided radiculopathy was independent from his in-service back injuries and finding no neurologic abnormalities or findings related to a lumbar spine disorder. The Veteran timely filed a notice of disagreement and a statement of the case (SOC) was issued in April 2016; however, he did not perfect his appeal and the August 2014 rating decision became final. The evidence received since the August 2014 rating decision includes additional private and VA medical treatment records diagnosing a lumbar spine disorder, noting that the Veteran had complaints of low back pain since his time in service in 1986, and finding that he experienced in-service military sexual trauma (MST). The record since August 2014 also includes multiple buddy statements from the Veteran’s friends and family observing that upon returning from service, he complained about his back and had increasingly limited functional capabilities and multiple statements from the Veteran detailing his in-service spinal injuries, and asserting that he experienced leg pain that began a month into boot camp and in-service MST. The evidence received since the August 2014 rating decision further includes testimony from the Veteran before a DRO in June 2018 and the undersigned VLJ in September 2020 reinforcing his account of his in-service injuries, claiming that his neurological disorders occurred in service, and explaining that he initially buried his MST after it happened to him but confronted it after hearing fellow veterans talk about their own experiences. With regard to his lumbar spine disorder, the buddy statements, lay statements, and lay testimony submitted by the Veteran, his friends, and his family, while new, are not material. In this regard, while lay witnesses are competent to report observations and describe in-service experiences, they are not competent to offer an opinion as to the nexus between a currently diagnosed disorder and an in-service injury. The buddy statements, lay statement, and lay testimony thus fail to raise a reasonable possibility of substantiating the claim, are not material, and do not support reopening his claim for low back disorder. As such, the application is denied, the claim is not reopened, and there is no doubt to be otherwise resolved. However, with respect to his RLE and LLE neurological disorders, as well as a psychiatric disorder, the evidence is new and material within the meaning law and regulations because it is probative of the issues. The Veteran is competent to describe his in-service experiences and observations, to include incurring leg pain and MST. Therefore, the lay testimony establishes that he experienced in-service RLE and LLE pain. Similarly, as to his psychiatric disorder, the lay testimony and medical treatment notes reveal that he experienced in-service MST. The evidence is new as it was not of record prior to the August 2014 rating decision. Moreover, the evidence is material as it relates to the unestablished element of an in-service incurrence. Accordingly, with respect to the request to reopen the claims of service connection for a RLE neurological disorder, LLE neurological disorder, and psychiatric disorder, to include bipolar disorder and MDD, the newly-added evidence relates to unestablished facts necessary to substantiate the claims. As such, the application is granted, and the claims are reopened to this extent. Service Connection for a Right Ankle Disorder Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, veterans are considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders “noted” at entrance into active service, except where clear and unmistakable evidence demonstrates that an injury or other disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304(b). A review of the STRs reveals that in June 1986, the Veteran complained of a two-day history of moderate right ankle pain and described a similar injury prior to enlistment; however, in January 2020 testimony before the Board, he asserted that the history of a pre-enlistment right ankle disorder was inaccurate. Further, while the April 1986 enlistment examination found Osgood Schlatter disease in the knees, it did not note the presence of a prior right ankle disorder. Accordingly, a right ankle disorder was not noted upon entry into service and the presumption of soundness attaches; the claim will therefore be considered on the bases of direct and secondary service connection. Turning first to direct service connection, the Veteran has been diagnosed with a right ankle disorder. Specifically, a July 2019 VA examination diagnosed a chronic and recurrent lateral collateral ligament strain of the right ankle. As such, a current disorder has been shown and the first element of service connection has been met. As to an in-service incurrence, a review of the STRs reveals that the Veteran complained in multiple June 1986 treatment notes of a painful right ankle due to twisting his ankle on a run and was diagnosed with a right ankle sprain. Accordingly, an in-service incurrence has been shown and the second element of direct service connection has been met. As to nexus, the Veteran described recurrent post-separation ankle injuries in testimony before a DRO and VLJ. He said that he first received treatment in 1987 but that he consistently reinjured his ankle two to three times per year every year since his separation from service. He reported that his right ankle ultimately required reconstructive surgery and multiple ligament and tendon repair procedures between 2014 and 2019. A review of the records reveals that April 2016 and July 2019 examiners diagnosed a chronic and recurrent right ankle lateral collateral ligament strain. The examiners noted that a right ankle inversion sprain was documented in June 1986 but opined that it was less likely than not that his right ankle disorder stemmed from his in-service right ankle injury. The examiners observed that the in-service right ankle sprain was described as a first-degree sprain with no laxity. The examiners noted that such strains were a very mild degree of ankle sprain that usually resolved in a matter of weeks to a couple of months. The examiners further found that the Veteran had a post-separation history working as a truck driver, warehouse worker, and maintenance man for 11 years and offered that his right ankle disorder was more likely than not related to normal age progression, decondition, and his post-separation occupational history. The examiners thoroughly reviewed the claims file and discussed the relevant evidence, to include whether the evidence established a nexus between the Veteran’s current right ankle disorder and his in-service right ankle disorder, considered his assertions, and provided a thorough supporting rationale for the conclusion reached. As such, the April 2016 and July 2019 VA examinations were adequate and are assigned high probative value. The medical evidence does not otherwise establish a direct nexus between a right ankle disorder and service. Accordingly, the medical evidence does not support service connection on a direct basis. As to secondary service connection, the Veteran asserted in a July 2017 treatment note that he had a history of back pain that resulted in his right ankle pain; however, in order to establish service connection on a secondary basis, the evidence must show a service-connected disability. The Veteran is not service connection for a low back disorder and, as discussed above, the evidence does not support his request to reopen his claim for the disorder. Additionally, there is no indication from the record that his right ankle disorder was caused or aggravated by a service-connected psychiatric disability. Therefore, the medical evidence does not support secondary service connection. In sum, the medical evidence does not establish a nexus between his current right ankle disorder and an in-service right ankle injury or a service-connected disability. Therefore, based on the above, the medical evidence weighs against the claim. The Board has considered the lay statements and testimony submitted by the Veteran, his family, and his friends regarding the etiology of his right ankle disorder. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have treated the Veteran and by clinical records and STRs obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Based on the above, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In September 2020 testimony before the undersigned VLJ, the Veteran testified that he experienced RLE and LLE pain in-service; however, no medical opinion addressing the relationship, if any, between his current RLE and LLE neurological disorders and his in-service lower extremity pain. Accordingly, a medical opinion is needed to determine the nature and etiology of his RLE and LLE neurological disorders. The Veteran is currently service-connected for PTSD at 70 percent. He has also been diagnosed with bipolar disorder, a history of a substance-induced mood disorder, an adjustment disorder, persistent depressive disorder with anxious distress, and a mild generalized anxiety disorder but there is no medical opinion discussing whether the psychiatric disorders other than PTSD are related to service. Accordingly, further development is required to determine the nature and etiology of his acquired psychiatric disorder other than PTSD. The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record and associate them with the claims file. 2. Direct the claims file to a clinician to determine the nature and etiology of the Veteran’s bilateral lower extremity neurological disorder. Based on a review of the record, the clinician is asked to provide opinions as to the following: • whether it is at least as likely as not (a 50% probability or more) that the right and/or left lower extremity neurological is etiologically related to service. In forming the opinions, the clinician is asked to consider the Veteran’s September 2020 testimony regarding in-service RLE and LLE pain. 3. Direct the claims file to a clinician to determine the nature and etiology of the Veteran’s psychiatric disorders other than PTSD. Based on a review of the record, the clinician is asked to provide opinions as to the following: • whether it is at least as likely as not (a 50% probability or more) that an acquired psychiatric disorder other than PTSD is etiologically related to service, to include as due to military sexual trauma (MST). The clinician is advised that for purposes of service connection for an acquired psychiatric disorder, the Veteran has been diagnosed with bipolar disorder, history of a mood disorder, adjustment disorder, persistent depressive disorder, and a generalized anxiety disorder. In forming the opinions, the clinician is asked to consider the Veteran’s January 2020 lay statement describing an in-service MST and its subsequent psychological impact, multiple July 2018 buddy statements from his family and friends describing the changes they saw in him following his separation from service, and the August 2020 VA medical opinion finding that it was at least as likely as not that an incident of in-service MST occurred. The rationale for all opinions must be provided. 4. If the clinicians determine that examinations are necessary in order to provide the requested opinions, then they should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.