Citation Nr: 21032007 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-27 269A DATE: May 25, 2021 ORDER New and material evidence having been received, the claim of service connection for posttraumatic stress disorder (PTSD) is reopened and, to this extent only, the appeal is granted. New and material evidence having been received, the claim of service connection for a lumbar spine disorder is reopened and, to this extent only, the appeal is granted. Service connection for major depressive disorder (MDD), to include bipolar disorder, is granted. Service connection for a lumbar spine disorder is granted. Service connection for bilateral lower extremity radiculopathy, as secondary to a lumbar spine condition, is granted. REMANDED The issue of entitlement to service connection for PTSD, to include as due to military sexual trauma (MST), is remanded. FINDINGS OF FACT 1. In a final September 2007 rating decision, the RO denied the Veteran's claim of service connection for PTSD. 2. Evidence associated with the record since the final September 2007 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and does raise a reasonable possibility of substantiating the Veteran's claim of service connection for PTSD. 3. In a final September 2007 rating decision, the RO denied the Veteran's claim of service connection for spinal stenosis of the lower back. 4. Evidence associated with the record since the final September 2007 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and does raise a reasonable possibility of substantiating the Veteran's claim of service connection for a lumbar spine condition. 5. Resolving any doubt in the Veteran's favor, her MDD, to include bipolar disorder, is the result of her active service. 6. The Veteran's lumbar spine condition had onset during and is the result of her active service. 7. The Veteran's lumbar spine condition caused her bilateral lower extremity radiculopathy. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of service connection for PTSD and a lumbar spine condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for MDD, to include bipolar disorder, have been met. 38 U.S.C. § 1110, 5.107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for a lumbar spine condition have been met. 38 U.S.C. § 1110, 5.107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy on a secondary basis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1985 to February 1988. New and material evidence having been received, the Veteran's claims for service connection for PTSD and a lumbar spine condition are reopened. Service connection for MDD, a lumbar spine condition, and secondary service connection for bilateral lower extremity radiculopathy will be granted. The issue of service connection for PTSD, to include as due to MST, will be remanded for further development. New and Material Evidence 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) (2017). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion. Id. For purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. 1. New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened and, to this extent only, the appeal is granted. The Veteran's claim was originally denied in September 2007. She was notified of the outcome and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of the September 2007 decision. The September 2007 rating decision became final based on the evidence then of record. The evidence considered in September 2007 includes service treatment records (STRs), a September 2007 VA examination, VA treatment records, Social Security Administration (SSA) records, and lay statements. The September 2007 rating decision denied the Veteran's claim based on the RO's finding that there was no evidence of the condition in-service, nor a confirmed in-service stressor. Since the last final rating decision, the evidence pertaining to the Veteran's claimed PTSD includes VA medical records, a February 2014 VA PTSD examination, private treatment records, private medical opinions, lay statements, and March 2021 Board hearing testimony. The evidence has not been previously considered and is evidence which tends to substantiate the previously denied claim. See Shade, 24 Vet. App. at 120-21. The evidence is both new and material, and the reopening of this claim is warranted. 2. New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine condition is reopened and, to this extent only, the appeal is granted. The Veteran's claim was originally denied in September 2007. She was notified of the outcome and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of the September 2007 decision. The September 2007 rating decision became final based on the evidence then of record. The evidence considered in September 2007 includes STRs, VA medical records, private medical records, SSA records, a July 2007 VA examination, and lay statements. The September 2007 rating decision denied the Veteran's claim for service connection for spinal stenosis based on the RO's finding that there was no evidence of a chronic back condition since service. The RO acknowledged a low back injury in-service, but noted the Veteran's involvement in a motor vehicle accident (MVA) in 2006 when the Veteran sustained a back injury. Since the last final rating decision, the evidence pertaining to the Veteran's claimed lumbar spine condition includes VA medical records, private treatment records, a private medical opinion, lay statements, and March 2021 Board hearing testimony. The evidence has not been previously considered and is evidence which tends to substantiate the previously denied claim. See Shade, 24 Vet. App. at 120-21. The evidence is both new and material, and the reopening of this claim is warranted. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis may be granted if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Regarding the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107(b); 38 C.F.R. § § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107(b). 3. Service connection for MDD, to include bipolar disorder, is granted. The Veteran contends that her MDD is related to her service, to include as due to her breech in pregnancy in-service. For the following reasons, service connection for MDD will be granted. The Veteran's medical records indicate a current diagnosis of MDD and bipolar disorder. A May 1985 STR indicates a diagnosis of dysmenorrhea, which was noted as possibly secondary to anxiety. A January 1988 ultrasound shows a single intrauterine pregnancy which presents as a breech. The January 1988 report of medical examination at separation indicates a normal clinical psychiatric evaluation. The Veteran's post-service medical records indicate treatment for mental health, and drug and alcohol use, to include impatient hospitalization and outpatient treatment. A May 2005 SSA Disability Psychiatric Report shows a diagnosis of PTSD and bipolar disorder with symptoms of depression. Hospitalizations in the early 2000s were noted for suicidal depression. The examiner commented that the Veteran is extremely credible. In a March 2011 VA medical opinion, the examiner, a psychiatry physician, stated that she has been treating the Veteran for the past year for bipolar disorder and depression. The examiner stated that based on a review of the medical records and treatment, it is more likely than not that the Veteran's bipolar disorder and depression resulted from mental trauma associated with her military service, including the breech birth of her son with cerebral palsy. The Veteran was afforded a VA examination for mental disorders other than PTSD in November 2011. The examiner noted diagnoses of unspecified bipolar disorder, alcohol dependence in sustained full remission, and cocaine abuse in sustained full remission. Depression was noted as a symptom attributable to the Veteran's mental disorders. The examiner was asked whether the Veteran's depression/bipolar disorder is related to the birth of her son in-service who has cerebral palsy. The examiner stated that she cannot resolve this issue without resorting to mere speculation. The examiner explained that although the Veteran has bipolar disorder, and reported continued depression during and since service, the Veteran only had treatment since the early 1990s. The examiner reported she was unable to find documentation of depression in-service, and stated that although the Veteran has a history of treatment since the early 1990s, without corroboration, she cannot say beyond speculation that the disorder was related to her service. In a February 2012 VA medical opinion, the psychiatry physician who provided the March 2011 VA medical opinion stated that she had been the Veteran since May 2010. She stated that she has reviewed the record of the Veteran's pregnancy in-service and other medical records and reiterated that it was more likely than not that the Veteran's disorder resulted from the mental trauma caused by the birth of her son. In a March 2012 VA addendum, the examiner was asked to address the May 1985 in-service notation of dysmenorrhea, which was noted as possibly secondary to anxiety. The examiner found the Veteran's disorder was less likely than not incurred in or caused by service. The examiner merely stated that a review of the literature shows no relationship between dysmenorrhea and bipolar disorder. However, the examiner did not address the possible underlying cause of the dysmenorrhea, which was noted as anxiety. Another VA addendum opinion was provided in May 2012 to reconcile the conflicting nexus opinions. The examiner noted no mention of specific corroborating medical evidence indicating the Veteran had emotional problems in-service, which is necessary to establish a nexus between the Veteran's service and her disorder. The examiner observed that he could locate only a single note documenting dysmenorrhea that speculated a possible cause of anxiety, but that the single notation does not constitute sufficient evidence to establish a nexus between the Veteran's service and her current bipolar disorder and depression. The Veteran was afforded a VA PTSD examination in February 2014. The examiner noted that the Veteran does not have a diagnosis of PTSD that conforms to the DSM-V criteria. However, the examiner noted diagnoses of bipolar disorder not otherwise specified, alcohol dependence in sustained full remission, and cocaine abuse in sustained full remission. The examiner found depression and anxiety are more likely related to the Veteran's bipolar disorder and her emotional fragility. However, the bipolar disorder, depression, and anxiety were less likely than not caused by or the result of her military experiences. The examiner explained that treatment for emotional problems or diagnosis of emotional problems was not noted in the Veteran's STRs, and that, according to the Veteran, her first treatment for bipolar disorder did not occur until 2004, well after her discharge from service. In a September 2014 private medical evaluation, a neuropsychologist found with a reasonable degree of psychological certainty that the Veteran has PTSD, MDD, and substance use disorder. The examiner noted the Veteran's reports of abuse by her superiors in-service. The examiner opined that it is more likely than not that the Veteran sustained trauma associated with her military experiences resulting in difficulties in coping, and likely resulting in her use of illicit substances and alcohol as a means of self-medicating. The examiner noted that the Veteran also has difficulties about her son who has cerebral palsy. The evidence is in relative equipoise in showing that the Veteran's MDD had its clinical onset due to events experienced during her period of service, to include her breech in pregnancy in-service. In such cases, reasonable doubt is resolved in the Veteran's favor and service connection for MDD, to include bipolar disorder, is warranted. The claim is granted. 4. Service connection for a lumbar spine condition is granted. The Veteran contends that her lumbar spine condition was caused by an in-service "slip and fall" in the shower during military service in June 1985. For the following reasons, service connection for a lumbar spine condition will be granted. The Veteran's medical records demonstrate ongoing post-service complaints and treatment for a lumbar spine condition since 2001, with current diagnoses of lumbar disc herniation, stenosis, and degenerative spondylolisthesis. A May 1985 STR indicates complaints of low back pain, which was noted as ongoing for three months. Tenderness to palpation was noted along the lower back and sacrum. A June 1985 STR indicates treatment for low back pain when the Veteran reported that she fell in the shower. Deep tenderness to palpation in the upper and lower back was noted and a low back strain was diagnosed. However, a July 1985 bone scan impression resulted in normal findings. In the Veteran's January 1988 report of medical examination at separation, a clinical evaluation of the spine and musculoskeletal system was noted as normal. In a September 2006 medical record, the Veteran was evaluated for low back pain. She reported that she was involved in a MVA four years prior and that the accident aggravated her existing low back pain. A September 2006 magnetic resonance imaging (MRI) report shows stenosis at L-3/L-5 and facet arthropathy. The Veteran was afforded a VA examination in July 2007. The examiner noted reported low back trauma in 1985 in-service when the Veteran slipped and fell in the shower. Diagnoses of L-3 disc bulge, and facet hypertrophy and mild spinal stenosis L-3/L4 were indicated. However, no etiological opinion was provided. In an April 2021 private medical evaluation, after a recitation of the relevant medical history, the examiner opined that it is at least as likely as not that the Veteran's lumbar spine injury in-service is proximately related to her current lumbar spine condition. The examiner explained that, despite the lack of reporting on her separation examination, given the nature of the injury incurred in-service and the diagnosis at the time, it is not uncommon to have long-term sequelae. The examiner further explained that, given the timeline of the injury and development of the degenerative lumbar spine condition, any reported MVA would have only served to aggravate the pre-existing lumbar spine condition, and worsen the Veteran's existing chronic low back pain. The evidence supports the Veteran's claim. Service connection for a lumbar spine condition is granted. 5. Service connection for bilateral lower extremity radiculopathy, as secondary to a lumbar spine condition, is granted. The Veteran contends that her bilateral lower extremity radiculopathy is secondarily related to her lumbar spine condition. For the following reasons, service connection on a secondary basis for bilateral lower extremity radiculopathy will be granted. The Veteran's medical records show a diagnosis of bilateral lower extremity radiculopathy. As addressed above in this decision, the Veteran is now service-connected for a lumbar spine condition. The first and second prongs of a secondary service connection claim are met. This appeal turns on the third prong of a secondary service connection claim - medical nexus. In an April 2021 private medical evaluation, after a recitation of the relevant medical history, the examiner opined that there is clear causation with respect to the secondary lumbar radiculopathy, as the condition is directly related to the Veteran's lumbar spine condition. Therefore, the third prong of a secondary service connection claim is met In conclusion, all three prongs of a secondary service connection claim are met, and the claim is granted. REASONS FOR REMAND The issue of entitlement to service connection for PTSD, to include as due to MST, is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: Private medical records and SSA records indicate a diagnosis of PTSD. The Veteran contends that her PTSD is related to in-service stressors. However, the RO has not yet adequately attempted to verify her asserted in-service stressors. Accordingly, this claim must be remanded for additional development. 2. Confirm with the Veteran that she has provided all known details regarding her in-service stressors. 3. The RO MUST take appropriate action to verify the asserted in-service stressors reported by the Veteran, which include the following: (a.) The Veteran attended Basic Training (BT) as part of D Company (Co.), 3rd Battalion (Bn.), 1st BT Brigade (Bde.), Fort Jackson, SC, from February 28, 1985 to April 29, 1985. The Veteran stated that Drill Sergeant Smith (who may have been a Staff Sergeant in the pay grade E-6) harassed her. She alleges that Drill Sergeant Smith ordered her to "get on all-fours" and make animal noises. She stated that there was already an investigation by the Inspector General (IG) into Drill Sergeant Smith's conduct, in which statements were taken, to include a statement made by the Veteran. (b.) The Veteran attended Advanced Individual Training (AIT) as part of A Co., 3rd Bn., 1st Signal (Sig.) School Bde., Fort Gordon, GA, from April 30, 1985 to August 7, 1985. The Veteran alleges that one night after leaving a party, a cab driver pulled a knife on the Veteran and a fellow servicemember. She alleges that she and a fellow servicemember reported the incident to Drill Sergeant Munoz, but that nothing was ever done about it. In a separate incident, the Veteran alleges that while standing in-formation, Drill Sergeant Munoz grabbed her bra strap causing it to break. She stated that she did not report the incident at the time, but that others witnessed the incident. (c.) The Veteran was stationed at Headquarters and Headquarters Detachment, 41st Sig., Bn., Korea, from August 28, 1985 to September 23, 1986. The Veteran was stationed at A Co., 304th Sig., Bn., Korea, from September 24, 1986 to January 13, 1987. The Veteran alleges that a Sergeant First Class Robinson, the staff duty non-commissioned officer at the Battalion Headquarters, asked the Veteran to take her clothes off when she took her clothes there to iron them. However, she stated that she did not report the incident, but that she told her husband. All appropriate action taken to verify the Veteran's claimed in-service stressors MUST be documented in the claims file. 4. If any of the Veteran's claimed in-service stressors can be verified, schedule the Veteran for a new VA PTSD examination with the examiner who conducted the February 2014 VA PTSD examination. If the examiner is no longer available, schedule the Veteran for a VA examination with an appropriate VA examiner to determine the likely etiology of the Veteran's PTSD. All evidence and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner must respond to the following: (a.) Provide an opinion as to whether the Veteran has a diagnosis of PTSD that is related to a verified in-service stressor. The examiner's attention is drawn to the following: * In a May 13, 1985 STR, the Veteran complained of painful menstrual periods, which were noted as possibly secondary to anxiety. The examiner's attention is drawn to the fact that this record occurred in a period during which the Veteran claims to have experienced an in-service stressor. * The January 1988 report of medical examination at separation indicates a normal clinical psychiatric evaluation. * A May 2005 SSA Disability Psychiatric Report indicates a diagnosis of PTSD. * A VA PTSD examination in February 2014 indicates that the Veteran does not have a diagnosis of PTSD that conforms to the DSM-V criteria. * A September 2014 private medical evaluation indicates that the Veteran has suffered from PTSD. 5. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's decision in this case is binding only with respect to this matter. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.