Citation Nr: 21040932 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 20-19 200 DATE: July 7, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for the Veteran's mental health disability, as currently/variously diagnosed, is granted. New and material evidence having been received, the petition to reopen the claim of service connection for chronic obstructive pulmonary disease (COPD) is granted. Service connection for COPD is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. A January 2016 rating decision denied service connection for PTSD; the Veteran did not appeal this denial, and no new and material evidence was received within one year of notice of the denial. Since the last final denial in January 2016, new and material evidence related to the issue of PTSD has been received. 2. The Veteran's mental health disability is related to military sexual trauma (MST). 3. A September 2013 rating decision denied service connection for COPD; the Veteran did not appeal this denial, and no new and material evidence was received within one year of notice of the denial. Since the last final denial in September 2013, new and material evidence related to the issue of COPD has been received. 4. The Veteran's COPD is due to a nicotine addiction that at least as likely as not began in service, partially due to his service-connected mental health disability. CONCLUSIONS OF LAW 1. The January 2016 denial of service connection for PTSD became final, and new and material evidence has been received to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156(b). 2. The criteria for service connection for the Veteran's mental health disability, as currently diagnosed, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The September 2013 denial of service connection for COPD became final, and new and material evidence has been received to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156(b). 4. The criteria for service connection for COPD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to July 1966. These matters come before the Board of Veterans' Appeals (Board) from a November 2017 rating decision. The Veteran testified at a Board hearing in March 2021. 1. New and material evidence having been received, the petition to reopen the claim of service connection for PTSD is granted. 2. Service connection for the Veteran's mental health disability, as currently diagnosed, is granted. The Veteran seeks service connection for a mental health disability, claimed as PTSD, as secondary to MST. 11/09/2017, VA 21-526EZ, Fully Developed Claim. This is not the first time that he has claimed entitlement to service connection for this disability. Accordingly, the Board must determine whether new and material evidence has been received to reopen the claim. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In this case, a prior claim of service connection for PTSD was last denied via a January 2016 rating decision, which concluded that an even earlier claim remained denied because no new and material evidence had been received. That earlier claim was denied based on a finding that the claimed disability was not related to service. See 10/24/2014, Rating Decision. The Veteran did not appeal that decision, and new and material evidence was received within one year after notice of the decision. As such, the January 2016 denial of service connection for PTSD became final. Since the last final denial, new and material evidence has been received to reopen the claim. The Veteran has submitted testimony regarding his in-service injuries. Furthermore, he has submitted a favorable medical opinion from a licensed psychologist. This new evidence relates to an unestablished element of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). *** The Veteran asserts that his claimed PTSD is due to MST. He has described an incident where he was sexually assaulted by another man. 06/17/2014, VA 21-0781, Statement in Support of Claim for PTSD. He has submitted a statement from a friend and fellow servicemember, who recalls being told about the incident shortly after it occurred. 06/17/2014, Buddy/Lay Statement. The statements from both the Veteran and his friend establish that the Veteran was too upset and embarrassed to report the incident to his superiors. The Veteran has also stated that he was the victim of numerous racist pranks in service. 06/17/2014, VA 21-0781, Statement in Support of Claim for PTSD. A June 2014 disability benefits questionnaire (DBQ), completed by a VA psychiatry nurse practitioner, shows diagnoses of PTSD/chronic adjustment disorder, major depressive disorder (single episode, severe without psychosis), insomnia related to mental disorder, and nightmares. 06/17/2014, Disability Benefits Questionnaire (DBQ) - Veteran Provided. VA treatment records show that the abovementioned provider diagnosed PTSD related to MST and other military traumas in May 2014 and referred the Veteran for MST evaluation. 08/19/2014, CAPRI, at 19. Shortly thereafter, a May 2014 psychology note indicates that the Veteran continues to perseverate the incidents that occurred during service but does not meet the criteria for PTSD. Notwithstanding, the examiner indicated that the Veteran had trauma-related symptoms (including depression secondary to the MST events). The note shows a diagnosis of other specified trauma- and stressor-related disorder (secondary to MST). In October 2014, a VA examiner was asked for an opinion regarding the sexual trauma. The examiner indicated that it was not possible for him to give a medical opinion as to whether or not a specific undocumented event took place over 48 years ago. In May 2021, the Veteran submitted an evaluation report from a private psychologist, who opined that the Veteran's lengthy history of PTSD and depression are more likely than not related to his military service events, adding that the Veteran's alcohol and substance abuse are secondary to these conditions. Regarding the substance abuse history, the examiner noted that the Veteran's substance abuse began in the military after his sexual assault. At the time, he also started taking pills to stay awake, in part to keep himself safe. 05/06/2021, Medical Treatment Record - Non-Government Facility, at 5-9. Based on the evidence above, the Board finds that service connection is warranted for the Veteran's mental health disability, as currently diagnosed. In reaching this conclusion, the Board places significant probative weight on the May 2014 VA MST evaluation, which clearly indicates that the Veteran had had trauma-related symptoms (including depression secondary to the MST events). More recent records clearly indicate that the Veteran still experiences these symptoms. Finally, regarding the MST, the Board finds that there is sufficient evidence beyond the Veteran's own statement to find that the reported stressor did happen. As discussed above, a friend and fellow servicemember has recalled being told about the incident around the time of the incident. Additionally, the evidence establishes a history of substance abuse dating back to service, which indirectly verify the reported stressor. Finally, the Board finds no reason to doubt the veracity of the Veteran's reports. For these reasons, service connection is granted for an acquired psychiatric disorder, as currently/variously diagnosed. 3. New and material evidence having been received, the petition to reopen the claim of service connection for COPD is granted. 4. Service connection for COPD is granted. The Veteran seeks service connection for COPD. 11/09/2017, VA 21-526EZ, Fully Developed Claim. This is not the first time that he has claimed entitlement to service connection for this disability. Accordingly, the Board must determine whether new and material evidence has been received to reopen the claim. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In this case, a prior of claim of service connection for COPD was denied via a September 2013 rating decision, which concluded that the current diagnosed disability was not incurred or is otherwise related to service. The Veteran did not appeal that decision, and new and material evidence was received within one year after notice of the decision. As such, the September 2013 denial of service connection for COPD became final. Since the last final denial, new and material evidence has been received to reopen the claim. The Veteran has submitted testimony regarding his in-service injuries. Furthermore, he has submitted a favorable medical opinion from a private physician. This new evidence relates to an unestablished element of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). *** The Veteran has a diagnosis of COPD. VA treatment records also reference a history of emphysema. A VA examiner has opined that the Veteran's emphysema is most likely due to cigarette smoking. 09/07/2013, C&P Exam. The Veteran asserts that this disability was incurred in service. In this regard, he has simply stated that he began smoking in service, where C-rations included cigarettes. 07/02/2012, VA 21-4138 Statement in Support of Claim. At his March 2021 Board hearing, the Veteran explained that he was diagnosed with COPD in 2000 but noted that he had had breathing problems since service. 03/09/2021, Heating Transcript, at 7. Recently, in May 2021, the Veteran submitted a favorable opinion from a private physician, who opined that the Veteran's "tobacco abuse disorder including nicotine addiction" is more likely than not related to the Veteran being provided with cigarettes in his C-rations. The physician explained that nicotine is extremely addictive and that, in the Veteran's case, his initial use amid the stress of military service was followed by continued tobacco use disorder for 40 years until stopping in 2011. 05/06/2021, Medical Treatment Record - Non-Government Facility. Based on the evidence above, and resolving doubt in favor of the Veteran on this material issue, the Board finds that service connection for COPD is warranted. Specifically, the Board finds that it is at least as likely as not that the Veteran had a nicotine addiction that was incurred in service, possibly as a manifestation of his now service-connected mental health disability. This nicotine addiction led to a 40-year history of smoking, which has been identified as the most likely cause of the Veteran's COPD. For these reasons, service connection for COPD is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran seeks service connection for a right shoulder disability. 11/09/2017, VA 21-526EZ, Fully Developed Claim. At his March 2021 Board hearing, the Veteran testified that he experiences numbness in his right arm and hand. He believes that this disability is related to an injury in service. In this regard, he explained that, in the rifle range, his weapon would kick back on his right shoulder, resulting in soreness and swelling. He explained that he did not sought treatment because he did not want to cause problems. He further indicated that he received VA treatment for his shoulder for many years. VA treatment records reference a history of joint pain in the shoulder region, as early as 2001. 08/19/2014, CAPRI, at 279, 949-950; 10/23/2019, CAPRI. An April 2010 VA treatment note characterizes the Veteran's shoulder pain as "most likely secondary to degenerative joint disease vs. cervical stenosis." 08/19/2014, CAPRI, at 274. An earlier (April 2008) VA radiology report shows a finding of mild degenerative disc and spondylosis from C2-C7 and neural foramina encroachment. Id. at 324. The Veteran has asserted that he has a diagnosis of arthritis of the right shoulder and has submitted a favorable medical opinion that establishes a connection between his reported in-service injury and his arthritis of the right shoulder. The opinion references a diagnosis of arthritis of the right shoulder but it is unclear whether this reference is based medical records or a report from the Veteran. As such, it is not enough to push the evidence to an approximate balance of positive and negative evidence at this time. The Veteran has not undergone a VA examination to determine the nature and etiology of his right shoulder disability. The Board finds that such an examination is necessary. In this regard, the Board notes that the nature of the claimed disability is unclear. While the Veteran has claimed it as a right shoulder disability, at his Board hearing, he complained of numbness in his right arm and hand. Furthermore, VA treatment records show a diagnosis of a degenerative disc in the cervical spine (which could account for the reported numbness), and the Board has been unable to find a confirmed diagnosis of right shoulder arthritis in the record. Rather, the only information regarding the nature of the right shoulder disability is the abovementioned treatment note, which characterized the right shoulder pain as "most likely secondary to degenerative joint disease vs. cervical stenosis." For these reasons, to include ensure the proper right shoulder disability is identified, the Board finds that a remand is necessary for additional development at this time. This matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination or examinations for his claimed right shoulder disability. The examiner must review the claims file. **Please note that the nature of the claimed disability is unclear. In addition to a "right shoulder" disability, the Veteran has complained of numbness in his right arm and hand. The examiner is to address the nature and etiology of these symptoms, regardless of whether they are in fact a manifestation of a right shoulder disability.** --State all current diagnoses related to the right shoulder, whether musculoskeletal and/or neurological. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment (complete the "Functional Impact" section of the report(s)), then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the claimed disability at least as likely as not (probability of approximately 50 percent) related to an injury in service? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. **In this case, the Veteran asserts that his claimed disability is related to the use of his weapon, which would kick back into his right shoulder. He has also submitted a favorable medical opinion from an orthopedic surgeon that validates the Veteran's assertion. The examiner must show appropriate consideration of this favorable opinion. See 5/6/2021 Medical Treatment Record Non-Gov't Facility.** If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.