Citation Nr: 21030415 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-62 702 DATE: May 18, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a low back disorder is reopened. REMANDED Service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, dysthymic disorder, and adjustment disorder is remanded. Service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The claims for service connection for PTSD and a low back condition were previously denied in an unappealed August 2015 rating decision. The evidence did not show diagnosed PTSD or low back disabilities that were related to service or any event of service. 2. Evidence received since the RO's August 2015 rating decision is new and material because it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the Veteran's claims. CONCLUSIONS OF LAW 1. The August 2015 rating decision denying service connection for PTSD is final and binding. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The August 2015 rating decision denying service connection for a low back condition is final and binding. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim for service connection for low back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 1972 to March 1975. By history, the agency of original jurisdiction's (AOJ's) unappealed August 2015 rating decision initially denied the Veteran's prior claims for service connection for PTSD and a low back disorder. This appeal arises from an August 2017 rating decision, finding no new and material evidence to reopen previously denied service-connection claims for PTSD and a low back condition. Notably, the Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen these service-connection claims for PTSD and a low back disorder. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). The Veteran testified at a Board virtual hearing in February 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. After reopening the PTSD claim, the Board has recharacterized the mental health issues as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, dysthymic disorder, and adjustment disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For purposes of reopening, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened. The RO's August 2015 rating decision denied service connection for PTSD because the evidence of record failed to show corroborated stressors to support the claim for PTSD. The Veteran's reported stressor of racial harassment could not be corroborated, and the record did not show that the claimed PTSD was related to service. See generally 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. The Veteran did not timely initiate an appeal of the August 2015 decision, by submitting a timely notice of disagreement (NOD) within one year of the decision, nor was new and material evidence received prior to the expiration of the appeal period. Thus, the determination became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. New and material evidence has been received that relates to unestablished facts that are necessary to substantiate the Veteran's claim. Recent VA mental health treatment notes show diagnoses of PTSD. See December 2016 and January 2020 VA mental health treatment notes. Also, the Veteran has submitted additional lay statements and testimony on the details of his claimed stressor involving racial harassment and verbal abuse during service, as well as observing a plane crash in which 4 servicemen were killed. See Board hearing transcript and February 2017 stressor statements. Together with these competent and presumed credible lay statements, see Justus, 3 Vet. App. at 513, this evidence satisfies the low threshold requirement for new and material evidence and this claim is reopened. See Shade, at 118. Thus, this indicates the possibility of a current PTSD disability, which was previously unestablished. The Board also observes other new VA treatment records now provide additional acquired psychiatric diagnoses of depressive disorder, dysthymic disorder, and adjustment disorder. This evidence satisfies the low threshold requirement for new and material evidence, such that the PTSD claim is reopened. See Shade, at 118. 2. New and material evidence having been submitted, the claim of entitlement to service connection for a low back disorder is reopened. The RO's August 2015 rating decision denied service connection for a low back condition because the medical evidence of record failed to show the existence of a current low back disability. See generally 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran did not timely initiate an appeal of the August 2015 decision, by submitting a timely NOD within one year of the decision, nor was new and material evidence received prior to the expiration of the appeal period. Thus, the determination became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. Subsequently, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the Veteran's claim. There is now evidence of diagnoses of a current disability to account for the claimed low back condition. Recent VA treatment notes show an MRI study found multilevel degenerative disc change with multilevel spinal canal stenosis, worst at L3-4, where it is moderate to marked; and multilevel marked neural foraminal narrowing. See November 2019 VA treatment note. He also testified to in-service back injuries from heavy lifting duties as an aircraft mechanic. See Board hearing transcript. Together with these competent and presumed credible lay statements, see Justus, 3 Vet. App. at 513, this evidence satisfies the low threshold requirement for new and material evidence and this claim is reopened. See Shade, at 118. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, dysthymic disorder, and adjustment disorder. The Veteran asserts that he has PTSD related to military service. Specifically, the Veteran contends that his current psychiatric symptoms, including anger and depression, started when he was subjected to racial harassment, verbal abuse and intimidation and mistreatment during active service. He also observed a plane crash in which 4 servicemen were killed. See Board hearing transcript and June 2015 and February 2017 stressor statements. The Board notes that available military personnel records indicate in-service behavioral changes, including deterioration of work performance. Further, VA treatment records show multiple psychiatric disorders, including PTSD, depressive disorder, dysthymic disorder, and adjustment disorder. To date, the Veteran has not been afforded a VA examination in connection with his claim. Given the Veteran's post-service medical history and in-service behavioral problems, the Board finds that remand is warranted to schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed psychiatric disorder, including PTSD. Additionally, the Veteran's DD Form 214 lists a Military Occupational Specialty (MOS) of Electrical Equipment Repairman/Aircraft Mechanic. During the February 2021 hearing, the Veteran stated that he witnessed a plane crash in 1973 in Virginia and he had to assist with collecting body parts. Additional action in this regard is warranted. 2. Service connection for a low back disorder. The Veteran asserts that he has a low back disability that is related to his active service. While the Veteran's service treatment records are silent as to any complaint, treatment, or diagnosis of a back disability, he testified to in-service back injuries from heavy lifting duties as an aircraft mechanic. See Board hearing transcript. Moreover, as noted, the Veteran's DD Form 214 lists a MOS of Electrical Equipment Repairman/Aircraft Mechanic, so his contention is consistent with his in-service duties. He also testified to a history of back problems and pain since his claimed in-service back injuries. See Board hearing transcript. Notably, recent VA treatment notes show an MRI study found multilevel degenerative disc change with multilevel spinal canal stenosis, worst at L3-4, where it is moderate to marked; and multilevel marked neural foraminal narrowing. See November 2019 VA treatment note. Based on the foregoing evidence, the low threshold under the third prong of McLendon for obtaining a VA examination and medical opinion regarding the Veteran's low back claim has been met in this case and a remand is necessary in order for such to be accomplished. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's in-service stressors, including witnessing a plane crash in 1973. If more details are needed, contact the Veteran to request the information. All efforts made must be documented. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include PTSD, depressive disorder, dysthymic disorder, and adjustment disorder. The entire claims folder must be reviewed by the examiner, including a copy of this Remand. All appropriate diagnostic testing must be conducted. a) The examiner is asked to identify all current psychiatric disorders found present on examination. b) The examiner is to state whether the Veteran has a current diagnosis of PTSD. If so, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has PTSD that is related to an in-service stressor event, to include in-service racial harassment or witnessing a plane crash, if verified? c) With respect to each additionally diagnosed psychiatric disorder (other than PTSD), the examiner is to state whether it is at least as likely as not (a 50 percent or greater probability) that such disorder originated during service or is otherwise etiologically related to service. The examiner must consider the Veteran's lay statements and support any opinion rendered with a detailed rationale. 3. Schedule the Veteran for a VA examination to determine the current nature and etiology of the Veteran's low back disorder. All necessary tests should be performed. On review of the record, the examiner should provide an opinion addressing whether is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a low back disorder that was either incurred in, or otherwise related to, the Veteran's active duty service. The examiner must consider the Veteran's lay statements and support any opinion rendered with a detailed rationale. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biswajit Chatterjee, 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.