Citation Nr: 21040915 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-10 782 DATE: July 7, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for left ankle disability is granted. REMANDED Entitlement to service connection for lumbar strain, claimed as low back condition, is remanded. Entitlement to service connection for cervical spine arthritis, to include as secondary to lumbar spine strain, is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for anxiety is remanded. Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. In a final decision issued in June 2010, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for PTSD. 2. Evidence added to the record since the June 2010 prior final decision is not cumulative or redundant of evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim for entitlement to service connection for PTSD. 3. In a final decision issued in October 1977, the RO denied the Veteran's claim of entitlement to service connection for left ankle disability. 4. Evidence added to the record since the October 1977 prior final decision is not cumulative or redundant of evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim for entitlement to service connection for left ankle disability. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of a final June 2010 decision, the criteria for reopening the claim of entitlement of service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received since the issuance of a final October 1977 decision, the criteria for reopening the claim of entitlement of service connection for left ankle disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1976 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) RO. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108, 7105(c). When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312, 31 (1999). The record reflects that the Veteran's claims were reopened by the RO in a February 2016 statement of the case. The Board, however, must still address the question of whether new and material evidence has been received to reopen the claims because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this 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 by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 1. PTSD Here, in the June 2010 statement of the case (SOC), the RO denied the Veteran's claim for service connection for PTSD because the evidence failed to show the Veteran was diagnosed with PTSD or a verified in-service stressor. Therefore, the RO found that there was currently no diagnosis present. See June 2010 SOC. The Veteran's last final decision for his claim for PTSD was in June 2010 as he did not file an appeal to this decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In denying the claim, the RO considered service treatment records (STRs), VA medical treatment records, and military personnel records. After the last final denial in June 2010, the Veteran filed a claim to reopen in December 2014. The RO denied the claim in a March 2015 rating decision. The Veteran submitted a notice of disagreement (NOD), which the RO continued the denial in the February 2016 SOC and November 2017 supplemental statement of the case (SSOC). Evidence submitted since the last final denial includes VA treatment records and Social Security Administration (SSA) records. The VA treatment records include treatment for PTSD and PTSD screens. Upon review of the aforementioned evidence, the Board finds that the VA treatment records are new and material. This evidence is new because it has never been submitted and it is not redundant of evidence already of record. The evidence is material because it contains evidence of a nexus opinion. See id. Given such, reopening the claim is in order, as the evidence is new and material. The reopened claim is further addressed in the remand section below. 2. Left Ankle Here, in the October 1977 rating decision, the RO denied the Veteran's claim for service connection for left ankle disability because the Veteran's STRs are negative for any reference to a sprained ankle but establish other cure conditions are shown with no apparent residuals. Therefore, the RO denied the Veteran's claim. See October 1977 Rating Decision. The Veteran's last final decision for his claim for left ankle disability was in October 1977. The Veteran attempted to appeal this decision in an October 1978 statement which was dated and received more than one year after the rating decision. Therefore, the Veteran did not properly appeal this decision and it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In denying the claim, the RO considered STRs and military personnel records. After the last final denial in October 1977, the Veteran filed a claim to reopen in December 2014. The RO denied the claim in a March 2015 rating decision. Evidence submitted since the last final denial includes VA treatment records and irrelevant STRs. 38 C.F.R. § 3.156(c) does not apply to the STRs obtained after the October 1977 prior final denial, as they are irrelevant or were duplicative in nature. Therefore, 38 C.F.R. § 3.156(c) is not for application. Upon review of the aforementioned evidence, the Board finds that the VA treatment records are new and material. This evidence is new because it has never been submitted and it is not redundant of evidence already of record. The evidence is material because it contains evidence of treatment for a left ankle condition. See id. Given such, reopening the claim is in order, as the evidence is new and material. The reopened claim is further addressed in the remand section below. REASONS FOR REMAND 1. Lumbar Strain The Board finds that a remand is warranted for a new VA examination and medical opinion. The Veteran last underwent a VA examination for his lumbar strain in March 2015. Unfortunately, the Board finds the March 2015 VA examination and corresponding medical opinion to be inadequate. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the March 2015 VA examination does not adequately depict the severity of the Veteran's low back condition as it is over six years old. Furthermore, the examiner failed to determine whether the Veteran experienced pain on motion and, if so, at what range of motion pain started at. As for the March 2015 VA medical opinion, the examiner found that it was less likely than not that the Veteran's fall during service cause his subjective complaints of back pain at the present time. The Board finds this medical opinion to be inadequate. Specifically, the examiner failed to provide any support for the negative medical opinion. The Board finds the medical opinion is unsupported by the examiner. See March 2015 C & P Examination Note. As such, the Board finds that a remand is warranted for a new VA examination and medical opinion. 2. Cervical Spine Arthritis, Anxiety, PTSD The Board finds that a remand is necessary for further development. Specifically, the Board finds a VA examination is necessary for the Veteran's claims for service connection for cervical spine arthritis, anxiety, and PTSD. The Veteran has not been afforded an examination for his cervical spine arthritis, anxiety, and PTSD. The Board finds the low threshold requirement has been met for a VA examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim). Here, the record reflects evidence of cervical spine arthritis, anxiety, and PTSD See VA Medical Treatment Records. The Veteran contends that his disabilities are due to service. The Board finds that there are no nexus statements for the Veteran's claims to determine whether service connection is allowed. Given such, the Board finds a remand is warranted to afford the Veteran VA examinations for cervical spine arthritis, anxiety, and PTSD 3. Left Ankle Disability The Board finds a remand is warranted for a new VA examination and medical opinion. The Veteran last underwent a VA examination for his left ankle disability in March 2015. Unfortunately, the Board finds the March 2015 VA examination and corresponding medical opinion to be inadequate. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the March 2015 VA examination does not adequately address the disability. The Veteran reported that he broke his ankle and had since had it operated on. The examiner stated that this was false and would be contradicted with x-rays. The examiner noted the Veteran's x-rays showed a left ankle healed fracture with applied bone plates and screws. The Board finds the examiner's statement and the medical evidence contradict. Therefore, the Board finds the March 2015 VA examination to be inadequate. See March 2015 C & P Examination Note. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of the lumbar and cervical spine disabilities. The examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All opinions must be supported by a rationale. The VA examiner should address the following: (a.) Whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's lumbar strain manifested in service or is otherwise causally or etiologically related to his military service. (b.) Whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's cervical spine disability manifested in service or is otherwise causally or etiologically related to his military service. (c.) Whether it is at least as likely as not that the Veteran's cervical spine disability was caused or aggravated by his lumbar strain disability. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of the left ankle disability. The examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All opinions must be supported by a rationale. The VA examiner should address the following: (a.) Whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's left ankle disability manifested in service or is otherwise causally or etiologically related to his military service. 3. Schedule the Veteran for a VA examination by a psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder, to include anxiety and PTSD. The examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All opinions must be supported by a rationale. The VA examiner should address the following: (a.) Whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's left ankle disability manifested in service or is otherwise causally or etiologically related to his military service. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.