Citation Nr: 21031517 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-53 486 DATE: May 24, 2021 ORDER New and material evidence having been received, claims for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. New and material evidence having been received, claims for entitlement to service connection for a lumbar spine disability is reopened. New and material evidence having been received, claims for entitlement to service connection for a cervical and/or thoracic spine disability is reopened. Service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, based on military sexual trauma (MST) is granted. REMANDED Entitlement to a compensable evaluation for service-connected bilateral hearing loss is remanded. Entitlement to service connection for a lumbar spine (back) disability is remanded. Entitlement to service connection for a cervical and thoracic spine (neck) disability is remanded. FINDINGS OF FACT 1. Evidence received since the November 2010 rating decision is new and material regarding the issues of service connection for PTSD, a back disability, and a neck disability, as it contains evidence not previously considered that has some tendency to help link the Veteran's current disabilities to his active military service. 2. Resolving all doubt in the Veteran's favor, the currently diagnosed acquired psychiatric disorder, including PTSD and major depressive disorder, was incurred during active military service. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's previously denied claims of service connection for PTSD, a back disability, and a neck disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to establish service connection for an acquired psychiatric disability, including PTSD and major depressive disorder, due to MST, are approximated. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1972 to September 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding and the multiple diagnoses given to the Veteran during the appeal period, the Board has recharacterized the claim as reflected on the title page. Regarding the claim for service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Further, given the favorable outcome in this decision regarding service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. New and Material Evidence. The Veteran contends his currently diagnosed PTSD, back disability, and neck disabilities are the result of military service. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Veteran seeks to reopen the previously denied claims for service connection for PTSD, a back disability, and neck disabilities. The claims were initially considered and denied by the RO in a November 2010 rating decision. The Veteran did not initiate an appeal of the decision denying service connection for the PTSD, back disability, or neck disabilities, nor did he not submit any new and material evidence, including medical evidence, within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision became final as to the evidence of record then and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed to reopen the claims in December 2015. The claims were subsequently considered and denied in a July 2016 rating decision. The Veteran filed a timely notice of disagreement with the July 2016 rating decision and this appeal followed. Since the November 2010 rating decision, additional evidence has been received in the form of VA treatment records, private medical records, and lay evidence from the Veteran. The VA treatment records, private medical records, and testimony from the Veteran are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, a basis to relate the current PTSD, back disability, and neck disabilities to the Veteran's period of active service, and raise a reasonable possibility of substantiating the claims. Specifically, treatment records confirm current diagnoses of the claimed disabilities and the Veteran has testified to in-service injuries that he contends resulted in the current PTSD, back disability, and neck disabilities. Therefore, the Board finds that new and material evidence has been received to reopen the claims for service connection for PTSD, a back disability, and a cervical/thoracic spine disability. See 38 C.F.R. § 3.156(a). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the claims for service connection for PTSD, a back disability, and a cervical/thoracic spine disability. 2. Service Connection for PTSD. The Veteran contends that service connection is warranted for an acquired psychiatric disorder, including PTSD and major depressive disorder. After review of the lay and medical evidence of record, the Board finds the evidence is in relative equipoise and that service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, based on MST, is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. Harassment and personal assault stressors are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). Further, if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include based on MST. Specifically, during his January 2021 Board hearing, the Veteran testified that he was assaulted during an in-service transatlantic flight. The Veteran indicated he did not report the assault out of fear of reprisal and a fear no one would believe him. The Veteran's entrance examination is silent for any mental health disabilities. The Veteran underwent a psychological evaluation as part of his separation and was diagnosed with adult situational reaction, inadequate personality pattern. The Veteran's exit examination indicates in the affirmative for a psychiatric condition and notes a diagnosis of adult situational reaction, inadequate personality pattern. In July 2010, the Veteran underwent a VA examination to determine the etiology of any mental health disabilities. The VA examiner diagnosed the Veteran with major depressive disorder, recurrent without psychotic features and without full inter-episode recovery. The VA examiner then opined the Veteran's major depressive disorder was less likely than not caused or aggravated by his active military service. The rationale provided was that the Veteran's current depression resulted from physical injuries after service and a post-service heart attack. The VA examiner also indicated that the Veteran's in-service personal issues were reported as resolved. In July 2019, the Veteran underwent a private examination to determine the etiology of any mental health disabilities. The private psychologist diagnosed the Veteran with posttraumatic stress disorder, chronic, delayed, severe, due to military sexual trauma. The private psychologist then opined the Veteran's PTSD was more likely than not caused by the reported in-service personal assault. The private psychologist based the opinion on a review of the record, an interview with the Veteran, and phycological assessments administered during the examination. VA treatment records are consistent with the lay testimony and medical examinations conducted during the appeal period. Specifically, the Veteran has continued to undergo psychotherapy and was given multiple diagnoses including PTSD and depression. The Board notes that the Veteran is competent to report the circumstances of the assault he experienced in service because they are based on his own direct observations. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Moreover, the Board finds these statements to be credible, as the Veteran has reported a consistent history of the in-service stressor throughout the period on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing). The Board notes that the Veteran reported the MST to his treating physician prior to the time he filed a claim and his report as to the incident has been consistent over the years. The Board also finds convincing the reason he provided for not reporting the assault during service. As noted above, there is little contemporaneous evidence available to verify the Veteran's stressors. However, the Board finds that both the lay testimony and the July 2019 private medical examination are persuasive as to the existence of the Veteran's stressors. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). Moreover, the July 2019 private examination was based on facts supported by the record as well as clinical findings at the examination and contains an adequate rationale. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of any current mental health disabilities. The Board could also order further development of the record and a more defined records search. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, although the VA examiner concluded there was no diagnosis of PTSD nor was there a link between any diagnosed mental health disabilities and service, other records, including a July 2019 private examination reflected the Veteran met the criteria for PTSD and that it was linked to his active military service. As this diagnosis was made by a licensed psychologist and even references the DSM-5, the Veteran has a current diagnosis during the appeal period. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals making diagnoses 'are presumed to know the DSM requirements applicable to their practice and to have taken them into account.'). Furthermore, as explained above, the Board finds the evidence corroborates the Veteran's stressor. Lastly, the evidence links the current symptoms to service. In sum, the Board finds that the evidence of record is at least in relative equipoise. That is, there is at least an approximate balance of evidence both for and against a link between the currently diagnosed disabilities and the actual occurrence of the in-service stressor. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because diagnoses of PTSD and major depressive disorder have been offered, and because competent and credible supporting evidence that the in-service stressor occurred has been offered, service connection for PTSD with major depressive disorder is warranted. REASONS FOR REMAND 1. Increased Evaluation for Bilateral Hearing Loss is Remanded. The Veteran contends his service-connected bilateral hearing loss is more severe than is reflected by the currently assigned non-compensable rating. The Veteran last underwent a VA examination to determine the severity of the service-connected bilateral hearing loss in July 2016. During the January 2021 Board hearing, the Veteran indicated that his service-connected bilateral hearing loss has worsened. While the passage of time alone does not warrant a new examination, given the treatment the Veteran has received for the hearing loss, and his complaints of worsening, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Service Connection for Back and Neck Disabilities are Remanded. The Veteran contends that service connection is warranted for back and neck disabilities. After review of the evidence, both lay and medical, the Board finds that a remand is necessary to allow the Board to make a fully informed decision. The Veteran's service treatment records, including his entrance and exit examinations, are silent for any complaints or treatment for a back or neck disability. During the January 2021 Board hearing, the Veteran reported multiple injuries that he contends resulted in current back and neck disabilities. First, the Veteran indicated he injured his neck during tech school when a gust of wind blew him from off a set of pallets causing him to fall and strike a series of barrels. Next, the Veteran indicated he struck his head knocking him unconscious. Additionally, the Veteran has indicated the strains of in-service duties resulted in the current back and neck disabilities. Specifically, the Veteran reported back pain after loading pallets that could weight up to 10,000 pounds. The Veteran has also indicated he experienced continuous back and neck pain after service. Further, he has indicated that he feels in-service injuries were the cause of post-service injuries to the back and neck. The Veteran has submitted extensive post-service treatment record documenting continued treatment for lumbar, cervical, and thoracic disabilities. To date, the Veteran has not been afforded a VA examination of his claimed back or neck disabilities. VA is obliged to provide an examination when (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) there is evidence establishing an "in-service event, injury or disease," (3) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (4) the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As such, a remand is necessary. The matters are REMANDED for the following action: 1. Associate any VA treatment records since March 2021 with the Veteran's electronic claims folder. 2. After any records requested above have been associated with the electronic claims file, schedule the Veteran for a VA audiology examination to determine the current severity of his service-connected bilateral hearing loss. The claims file and a copy of this remand should be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished. A complete rationale must be provided for any opinions expressed. 3. Schedule the Veteran for a VA orthopedic examination to determine the etiology of any current lumbar spine disabilities. The examiner is asked to provide the following opinions: a) Is it at least as likely as not that any current back disability was incurred during the Veteran's active military service, or had its onset within one year of service separation? The VA examiner must review and comment on the September 11, 2008 letter from the Veteran and his January 2021 Board hearing documenting in-service injuries to the back. A rationale should be given for all opinions and conclusions rendered. 3. Schedule the Veteran for a VA orthopedic examination to determine the etiology of any cervical and/or thoracic spine disabilities. The examiner is asked to provide the following opinions: a) Is it at least as likely as not that any current left wrist disability was incurred during the Veteran's active military service or had their onset within one year of service separation? The VA examiner must review and comment on: 1. The Veteran's November 1972 head injury. 2. The September 11, 2008 letter from the Veteran and his January 2021 Board hearing documenting in-service injuries to the cervical and/or thoracic spine. A rationale should be given for all opinions and conclusions rendered. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.