Citation Nr: 18131293
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-42 629
DATE:	August 31, 2018
ORDER
New and material evidence having been received; the claim of entitlement to service connection for an acquired psychiatric disorder is reopened.

REMANDED
Entitlement to service connection for an acquired psychiatric disorder is remanded.
Entitlement to a compensable rating prior to June 16, 2011, and in excess of 10 percent thereafter, for spondylosis, lumbar spine, is remanded. 
FINDINGS OF FACT
1.   In a final decision issued on June 13, 2009, the RO denied the Veteran’s claim of entitlement to service connection for posttraumatic stress disorder (PTSD).
2.   Evidence added to the record since the June 2009 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for a service connection for an acquired psychiatric disorder.

CONCLUSIONS OF LAW
As new and material evidence has been received since the issuance of a final June 2009 rating decision, the criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder have been met.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 2004 to June 2008.  
The Board notes that based on the evidence of record, the Board has re-characterized the Veteran’s claim of entitlement to service connection for PTSD, more broadly as a claim of entitlement to service connection for an acquired psychiatric disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  
New and Material Evidence
Acquired Psychiatric Disorder
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).
Here, in a rating decision issued on June 13, 2009, the RO denied the Veteran’s claim for service connection for PTSD for a lack of a current disability, an in-service occurrence and a nexus opinion linking an asserted current disability to service.  This decision is final, as the Veteran did not appeal this decision within one year of the issuance of the June 13, 2009 rating decision.  38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).  On June 15, 2010, the Veteran submitted a claim to reopen her claim for PTSD.
The evidence of record at the time of the final prior denial in June 2009 included, inter alia, the Veteran’s service treatment records and an October 2018 VA examination report.
The evidence submitted and obtained since the June 2009 prior final denial includes the Veteran’s lay statements, military personnel records, and VA treatment records.
Upon review, the Board finds this evidence is both new and material sufficient to reopen the Veteran’s claim.  As the evidence obtained raises a reasonable possibility of substantiating the Veteran’s claim in that the evidence establishes acquired psychiatric diagnoses and an in-service occurrence.  Given such, reopening of the claim is in order.  See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 
REASONS FOR REMAND
Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran’s claims on appeal.
Here, with respect to the Veteran’s claims on appeal, the RO scheduled VA examinations for the Veteran’s claims on September 10, 2015.  Based on the record, the RO noted that the Veteran failed to report to her September 2015 VA examinations. 
However, in an October 2015 Report of General Information, the RO noted that the Veteran called to reschedule her examinations, as the Veteran stated that she missed her appointments because she never received notice of the scheduled examinations.  In fact, on October 6, 2015, the Veteran went to the Pensacola RO office and when the office verified the examination times, they advised that notice was never sent.  The Veteran notified the RO that she will make the rescheduled examinations.  However, to date, the RO has not rescheduled the Veteran’s examinations.  Given such, a remand is warranted to reschedule the Veteran’s examinations with respect to the claims on appeal.
The matter is REMANDED for the following action:
1.   Obtain any outstanding VA and non-VA medical records associated with the Veteran’s claims on appeal.
2. Upon completion of the above to the extent possible, schedule the Veteran for VA examinations with appropriate examiners to address the nature and etiology of her claimed acquired psychiatric disorder.  After performing any required tests, and reviewing the entire record, the examiner should provide an opinion responding to the following questions:
Delineate any acquired psychiatric disorder, and state whether it is at least as likely as not (50 percent or more probability) that the Veteran’s acquired psychiatric disorder is caused by or related to her service, to include whether caused by the fear of hostile military activity during service. 
The examiner is advised that the Veteran’s military personnel records reflect that she served in Iraq and received imminent danger pay, therefore fear of hostile military activity has been conceded by VA. 
Additionally, the VA examiner must discuss the Veteran’s lay statements, to include her November 2012 Statement in Support of the Claim, in which the Veteran stated that while doing convey security in Iraq, she witnessed an improvised explosive device (IED) strike the vehicle traveling in front of her vehicle. 
If any previously diagnosed disorder, to include adjustment disorder with depressed and anxious mood as reflected in the Veteran’s October 2008 VA examination report and PTSD as reflected in a January 13, 2009 psychology consult Pensacola VA Medical Center treatment record, is not found upon examination, an explanation must be provided. 
3. Schedule the Veteran for a VA medical examination to clarify the severity of her spondylosis of the lumbar spine.  Access to the Veteran’s electronic claims file should be made available to the examiner for review in connection with the examination.
The examination report should include the range of motion of the lumbar spine in degrees.  The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. 
Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination in relation to the Veteran’s lumbar spine.  If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination.
The examiner should also, to the extent possible, provide a retrospective opinion addressing prior range of motion of the Veteran’s lumbar spine, painful motion (and at what point it started), additional loss of motion after repetitions, and function loss due to pain -considering active and passive motion as well as weight-bearing and nonweight-bearing considerations-throughout the claims period.  If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination.
The examiner should also state whether the Veteran’s spondylosis of the lumbar spine results in incapacitating episodes manifested by physician-prescribed bed rest.  If so, the examiner should report the dates and durations of these incapacitating episodes.
As to the Veteran’s spondylosis of the lumbar spine, the examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. 
Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss.  The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
The examination report should also identify all neurological manifestations of the Veteran’s lumbar spine, if any.
Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Abdelbary, Associate Counsel 
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