Citation Nr: 21027023 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-54 939 DATE: May 4, 2021 ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened. Entitlement to service connection for posttraumatic stress disorder (PTSD) and unspecified depressive disorder is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a bilateral ankle condition is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The Regional Office (RO) denied the Veteran's claim for entitlement to service connection for a low back disorder in December 1984 and August 2015 rating decisions. 2. The Veteran did not perfect an appeal of the December 1984 and August 2015 rating decisions; nor was new and material evidence received within a year of these decisions. 3. Additional evidence received since the RO's decisions is not cumulative or redundant of the evidence of record at the time of the decisions, relates to unestablished facts necessary to substantiate the claim for service connection for a back condition, and raises a reasonable possibility of substantiating the claim. 4. The Veteran's PTSD and unspecified depressive disorder are due to military sexual trauma. CONCLUSIONS OF LAW 1. The December 1984 and August 2015 rating decisions denying the Veteran's claim for entitlement to service connection are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a low back disorder. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.303, 3.156. 3. The criteria for entitlement to service connection for PTSD and unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to January 1984 and from May 1988 to September 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2020. A transcript of the hearing has been associated with the Veteran's electronic claims file. New and Material Evidence A claim of entitlement to service connection for a low back disability was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became 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; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 prior final 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a low back disorder Here, the RO previously denied the Veteran's claim for service connection for a low back disorder in December 1984 and August 2015 rating decisions. The Veteran did not perfect an appeal to the Board of these decisions. As such, the decisions became final. The Veteran petitioned to reopen his claim for a low back disorder in September 2016. Since the August 2015 rating decision, the Veteran has submitted new evidence in the form of a March 2017 statement in which the Veteran described an injury to his back in a motor vehicle accident while on active duty for training. A Board hearing transcript, February 2017 VA examination report, and VA treatment records have also been associated with the record. The Veteran was afforded a Board hearing in August 2020. The Veteran testified that he injured his back at Fort Dix during annual training. The Veteran testified that he was a passenger in a car that slid off the road and hit a tree, and that he was admitted to the hospital on Fort Dix and discharged the following day. The Veteran testified that he has been referred by VA to a private chiropractor and acupuncturist for treatment. In a February 2017 VA medical opinion, the VA examiner noted the Veteran's reported 1987 motor vehicle accident. The examiner stated that the Veteran's service records show no evidence of treatment or reports of back pain, and opined that the Veteran's low back disorder is less likely than not incurred in or caused by the Veteran's claimed in-service injury, event, or illness. The Board hearing testimony, VA examination report, and VA treatment records were not previously considered by agency decision makers and address one or more of the in-service incident, current diagnosis, and nexus elements of the Veteran's service connection claim. Specifically, the Veteran has identified details of his back injury and treatment that have not been considered by decision makers, and that indicate the existence of relevant medical records that have not been associated with the record. Therefore, the evidence is considered new and material, and the claim of service connection for a low back disorder is reopened. To this extent only, the Veteran's claim is granted. Service Connection Under the relevant laws and regulations, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2017). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, 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 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and depression, to include military sexual trauma (MST) Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). If a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Specifically, 38 C.F.R. § 3.304(f)(5), allows Veterans claiming PTSD from an in-service military assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor, and this includes medical opinion evidence. Menegassi, 638 F.3d at 1382; see 67 Fed. Reg. 10,330, 10,330-31 (Mar. 7, 2002). In December 2016, the Veteran provided VA with a statement which included details of his claimed assault. See December 2016 Statement in Support of Claim for PTSD Secondary to Secondary Assault. The Veteran stated that the claimed incident took place in February 1982 at Ft. McClellan, Alabama, and that the individual who attacked him was promptly removed from the unit. The Veteran stated that he was assigned to Company A, 11th Battalion, 4th Platoon. The Veteran also provided the name of his staff sergeant. The Veteran was afforded a VA examination in January 2017. Based on the Veteran's reported in-service MST, the examiner diagnosed PTSD and unspecified depressive disorder. The examiner noted that the unspecified depressive disorder is at least partially related to his PTSD diagnosis with some overlapping symptoms. As there is medical evidence diagnosing a psychiatric condition in accordance with 38 C.F.R. § 4.125(a), medical opinion evidence finding the claimed stressor is credible, and a link, established by medical evidence, between the current symptoms and the in-service stressor, service connection for PTSD and unspecified depressive disorder is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran asserts that he injured his back at Fort Dix during annual training. The Veteran testified that he was a passenger in a car that slid off the road and hit a tree, and that he was admitted to the hospital on Fort Dix and discharged the following day. A review of the Veteran's personnel records shows that he was assigned to active duty for training at Fort Dix for 13 days in May and June 1987. A June 2015 request for records from the National Personnel Records Center shows a request for service treatment records for the periods of January 1982 to January 1984 and from May 1988 to September 1988, but not for the period of active duty for training relevant to the Veteran's appeal. The February 2017 VA examiner based his opinion on the fact that the Veteran's service records show no evidence of treatment or reports of back pain. As potentially relevant records have not been associated with the record, and were not available for review by the VA examiner, a remand is necessary to attempt to obtain these records. 2. Entitlement to service connection for a left foot condition is remanded. 3. Entitlement to service connection for a right foot condition is remanded. The Veteran asserts that his preexisting left foot injury was aggravated by military service. See August 2020 Board transcript. Specifically, the Veteran asserts that he injured his foot prior to enlistment, and that the injury was aggravated by wearing ill-fitting boots and by jumps during airborne training, after completing five jumps. Id. The Veteran asserts that he was given specially made boots during military service due to this aggravation of his foot injury. Alternatively, the Veteran asserts that his left foot condition was aggravated by his right foot condition and by his bilateral ankle condition. See March 2017 Statement from Veteran, October 2017 Substantive Appeal. The Veteran also asserts that he has arthritis of the right foot which is secondary to his left foot and bilateral ankle conditions. The Veteran was afforded a VA examination in February 2017. The examiner noted the preexisting injury to the Veteran's left foot, that he was evaluated in service and provided with special shoes, and that the Veteran currently has arthritis in his feet. However, the VA examiner opined that the Veteran's right and left foot conditions are age related, as there is no documentation of foot problems during military service. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The Veteran's entrance examination noted a left foot fracture. Therefore, the Board finds that a left foot injury was "noted" when the Veteran was examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). As the left foot injury was "noted" at service entrance, the presumption of soundness at entry into service does not attach, and service connection for a left foot condition may be granted only if it is shown that the left foot condition worsened in severity beyond its natural progression during service, i.e., was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Board finds another VA opinion is necessary to include consideration of the Veteran's statements regarding entitlement to secondary service connection. 4. Entitlement to service connection for a bilateral ankle condition is remanded. The Veteran asserts that his bilateral ankle condition is caused by the aforementioned airborne training and motor vehicle accident. The Veteran was afforded a VA examination in February 2017. The VA examiner diagnosed the Veteran with osteoporosis with joint manifestation and opined that the Veteran's bilateral ankle condition is less likely than not related to military service, as there is no documentation that the Veteran sought treatment for an ankle condition during military service. As the February 2017 VA examiner did not fully consider the Veteran's statements, a new examination is warranted. 5. Entitlement to service connection for GERD is remanded. The Veteran asserts that his doctors advised him that his GERD is related to his PTSD. See August 2020 Board Hearing Transcript. The Veteran also asserts that his GERD is directly related to his military service, that he received treatment for "frequent and persistent" acid reflux during service, and the condition has been persistent to this day. See March 2017 Statement from Veteran. Turning to the evidence of record, the Veteran's service records, to include a January 1984 separation examination, a June 1985 ROTC appointment examination, and a November 1989 Report of Medical Examination, are silent for complaints of or treatment for acid reflux or GERD. In a June 1985 Report of Medical History, the Veteran indicated that he was not taking any medication. In a November 1989 Report of Medical History, the Veteran stated that he was "presently in good health" and denied any frequent indigestion, stomach, or intestinal trouble. The medical record reflects a diagnosis of GERD. See August 2016 VA primary care intake note. The Veteran's testimony has triggered VA's duty to assist to afford him a VA examination and medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board notes that the most recent VA treatment records associated with the Veteran's file are from October 2017, that he has received treatment from both Kansas City Missouri and New York VA Medical Centers, and that he has been referred to private providers for his back condition. On remand, VA treatment records from October 2017 to the present and any private treatment records for his back condition should be associated with the record. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2017 to the Present from Kansas City Missouri and New York VAMCs, to include records from any providers the Veteran was referred to by VA for treatment. 2. Obtain and associate with the Veteran's claims file all outstanding service treatment and personnel records for the period of active duty for training from May to June 1987. 3. Contact the appropriate custodian and specifically request service clinical/hospitalization records pertaining to treatment the Veteran reportedly underwent for his back sometime in 1987. All attempts to fulfill this development should be documented in the claims file. 4. After this development has been completed, schedule the Veteran for an examination(s) to determine the nature and etiology of the claimed left foot, right foot, and bilateral ankle conditions. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner is requested to provide the following opinions: (a.) Is it at least as likely as not that the Veteran's pre-existing left foot condition, which was noted at service entry, underwent an increase in severity in service, to include as due to wearing ill-fitting boots and completing five jumps during airborne training and/or as due to bilateral ankle injuries sustained in service? If yes, please opine as to whether such increase clearly and unmistakably was due to the natural progress of the left foot disability. (b.) Is the claimed right foot condition at least as likely as not proximately due to any diagnosed left foot or bilateral ankle condition? (c.) Is the claimed right foot condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any diagnosed left foot or bilateral ankle condition? (d.) Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of his ankle condition, is it at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed bilateral ankle condition had an onset during service, or is causally or etiologically due to service? A complete medical rationale for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, please provide complete explanations of why this is so. In so doing, please explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether you have exhausted the limits of current medical knowledge in providing an answer to that particular question. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion(s), or other information needed to provide the requested opinion. 5. If the development ordered above confirms the claimed 1987 motor vehicle accident, schedule the Veteran for a VA examination to determine the nature and etiology of his low back disorder. 6. Schedule the Veteran for an examination to determine the nature and etiology of the claimed GERD. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner is requested to provide the following opinions: (a.) Is it at least as likely as not that the Veteran's GERD had an onset during service, or is causally or etiologically due to service? (b.) Is the GERD at least as likely as not proximately due to the Veteran's PTSD and unspecified depressive disorder? (c.) Is the GERD at least as likely as not aggravated, i.e., worsened beyond its natural progression by the Veteran's PTSD and unspecified depressive disorder? A complete medical rationale for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, please provide complete explanations of why this is so. In so doing, please explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether you have exhausted the limits of current medical knowledge in providing an answer to that particular question. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion(s), or other information needed to provide the requested opinion. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.