Citation Nr: 18160423
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 17-23 612
DATE:	December 27, 2018
ORDER
As new and material evidence has been received, the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened.
As new and material evidence has not been received, the previously denied claim of entitlement to service connection for a lumbar strain remains denied.
As new and material evidence has not been received, the previously denied claim of entitlement to service connection for a left ankle strain remains denied. 
REMANDED
Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded.
Entitlement to service connection for folliculitis is remanded.
FINDINGS OF FACT
1. By a March 2011 rating decision, the Regional Office (RO) denied the Veteran’s claim for PTSD. The Veteran did not initiate an appeal of the RO’s decision within one year, nor was new and material evidence received within a year. 
2. Additional evidence received since the RO’s March 2011 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim.
3. By a March 2011 rating decision, the RO denied the Veteran’s claims for lumbar strain and left ankle strain. The Veteran did not initiate an appeal of the RO’s decision within one year, nor was new and material evidence received within a year.
4.  Additional evidence received since the RO’s March 2011 rating decision is cumulative or redundant of the evidence of record at the time of that decision, it does not satisfy an unestablished fact necessary to substantiate the claims for service connection for a lumbar strain and left ankle strain, and it does not raise a reasonable possibility of substantiating the claims. 
CONCLUSIONS OF LAW
1. The March 2011 rating decision denying service connection for PTSD, lumbar strain, and left ankle strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
2. Evidence received since the March 2011 decision in support of the claim of service connection for PTSD is new and material; thus, the claim is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156.
3. Evidence received since the March 2011 decision in support of the claims of service connection for lumbar strain and left ankle strain is not new and material; thus, the claims remain denied. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served in the United States Army from July 1999 to May 2004 and separated with a general discharge. This matter is before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision.
New and Material Evidence
Regardless of the actions of the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim.  That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).
A final decision cannot be reopened unless new and material evidence is presented. 38 U.S. C. § 5108. “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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017).
At the time of the March 2011 rating decision, the evidence of record included: the Veteran’s service treatment records; the Veteran’s service personnel file; the Veteran’s DD-214; a July 2010 memorandum of formal finding of a lack of information required to corroborate stressors with a claim for service connection for PTSD; the June 2010 Veteran’s statement in support of claim; a November 2010 VA examination; February to March 2011 treatment records from Dublin VAMC; March 2008 treatment records from Phoebe Family Medical Center; and March 2008 treatment records from Archibald Medical Center. 
Records associated with the claim since the March 2011 rating decision include: the March 2011 rating decision; a February 2013 VA examination; July 2011, August 2011, May 2012, August 2012, and December 2016 treatment records from Phoebe Family Medical Center; April 2014 treatment records from Gainesville VAMC; February 2015 treatment records from Dublin VAMC; a November 2017 private opinion from Dr. P.S.; a February 2013 memorandum of formal finding of a lack of information required to corroborate stressors with a claim for service connection for PTSD; a February 2017 lay statement by the Veteran explaining why he believes he is entitled to compensation; and altered photocopies of the Veteran’s service treatment records. 
1. As new and material evidence has been received, the previously denied claim of entitlement to service connection for PTSD is reopened.
In August 2012, the Veteran requested that VA reopen his previously denied claim to service connection for PTSD. The March 2011 rating decision denied the claim for lack of medical nexus to the Veteran’s time in service. 
The February 2013 VA examination and the November 2017 private opinion by Dr. P.S. are both new and material to the Veteran’s claim to service connection for PTSD. The February 2013 VA was not previously before agency decision makers. Additionally, it relates to an unestablished fact by discussing the medical nexus between the Veteran’s condition and his service. The November 2017 private opinion by Dr. P.S. was also not previously before agency decision makers. Further, it relates to the unestablished medical nexus between the Veteran’s condition and his service. 
In February 2017, the Veteran submitted altered and falsified photocopies of his service treatment records, which will be discussed below.
As the new evidence, in particular the November 2017 private opinion, is material to this appeal, the Veteran’s claim to service connection for PTSD is reopened. 
2. As new and material evidence has not been received, the previously denied claim of entitlement to service connection for a low back disability remains denied.
In August 2012, the Veteran requested that VA reopen his previously denied claim to service connection for a low back disability. The March 2011 rating decision denied the claim for no in-service incurrence. 
While the August 2011 Phoebe Family Medical Center treatment records and February 2015 Dublin VAMC treatment records are new, they are not material. The August 2011 and February 2015 treatment records show that the Veteran has been treated for lower back pain; however, they are not related to the unestablished element. Neither treatment record indicates that the Veteran’s low back disability originated in service. Consequently, the treatment records are not material. 
In February 2017, the Veteran submitted a lay statement indicating he injured his back while in Iraq in 2003. Additionally, the Veteran submitted altered, falsified photocopies of his service treatment records to include an addition to his separation examination reading “service member left ankle lumbar strain due to injury in Iraq.” However, the Veteran’s original March 2004 separation examination shows the spine clinical examination to be within normal limits and no notation of this alleged injury in Iraq. This evidence, although new, is not material. The altered service records cannot be relied upon by the Board because they have been falsified.  As this is the only new evidence added with regard to this specific matter, service connection for a low back disability cannot be reopened and remains denied because new and material evidence has not been received. 
3. As new and material evidence has not been received, the previously denied claim of entitlement to service connection for a left ankle strain remains denied.
In August 2012, the Veteran requested that VA reopen his previously denied claim to service connection for a left ankle strain. The March 2011 rating decision denied the claim for lack of medical nexus to the Veteran’s time in service. 
The August 2011, May 2012, August 2012, and December 2016 Phoebe Family Medical Center treatment records are new. The February 2015 Dublin VAMC treatment records are also new. However, neither are material. These treatment records show that the Veteran has been treated for left ankle strains and pain. Material evidence relates to an unestablished fact. The evidence does not relate to the lack of medical nexus; therefore, it is not material. 
In February 2017, the Veteran submitted a lay statement indicating he injured his ankle while in Iraq in 2003. Additionally, the Veteran submitted altered, falsified photocopies of his service treatment records to include an addition to his separation examination reading “service member left ankle lumbar strain due to injury in Iraq.” However, the Veteran’s original March 2004 separation examination shows the lower extremities clinical examination to be within normal limits and does not contain this added sentence.  In addition, the Veteran submitted a falsified service record that changed a prior notation of a left ankle basketball injury dated in July 2000 to now suggest that the left ankle was treated instead in November 2003 and was the result of a fall from a truck while the Veteran was in Iraq.  This evidence cannot be relied up by the Board because it is falsified.  As there is no other new evidence that is also material, service connection for left ankle strain cannot be reopened and remains denied. 
REASONS FOR REMAND
Entitlement to service connection for folliculitis is remanded. 
In August 2012, the Veteran filed a claim to service connection for folliculitis. The Veteran sought treatment for this condition multiple times during service, and the Veteran has been treated for folliculitis intermittently since service. 
The Board cannot make a fully-informed decision on the issue of folliculitis because no VA examiner has opined whether the Veteran’s diagnosis is related to or caused by his time in service. 
Entitlement to service connection for acquired psychiatric disorder is remanded.
The Veteran has filed a claim of service connection for PTSD. More information is needed to allow the Board to make a fully-informed decision. A February 2013 VA examination was conducted under the DSM-IV and did not diagnose the Veteran with PTSD.  Subsequently, diagnoses of a history of PTSD were noted in VA treatment records.  However, these were give by internal medicine and emergency room physicians and not VA psychiatrists or psychologists.  Therefore, they cannot be relied upon with regard to finding that PTSD is related to any stressor claimed as hostile military or terrorist activity.  
A November 2017 private opinion was conducted under the DSM-5 and diagnosed the Veteran with PTSD and major depressive disorder. However, it cannot be relied upon by the VA.  This opinion relies heavily upon the Veteran’s assertion that he fell off a truck when incurring incoming fire in service and witnessed the injury of a fellow servicemember at that time.  As noted above, the Veteran submitted falsified copies of his service treatment records aimed at reflecting that this incident occurred.  This evidence is certainly not credible and cannot be relied upon by the Board.  While the psychologist that provided the November 2017 opinion indicated that she reviewed the Veteran’s claims file, she made no mention of these falsified records or their impact on determining whether the Veteran had experienced a qualifying stressor.  As such, the Board cannot conclude that the review of the file by this individual was comprehensive, and the opinion fails to address a signficant fact associated with the claims file.  Therefore, this opinion cannot be afforded more than the bare minimum of probative weight.
Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, and replacing them with references to the recently updated “DSM-5.” It was specifically noted that the Secretary did not intend for the provisions to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015). As the instant appeal was first certified to the Board in May 2017, the DSM-5 is applicable. 
Since the Board cannot rely upon the private opinion, and there is evidence in the VA outpatient treatment records of a diagnosis of PTSD since the VA examination that found no such diagnosis, the Board finds that remand is necessary here.  However, in light of the Veteran’s submitted falsified documents, his assertion of having fallen out of a truck is not credible and cannot serve as the basis of a PTSD diagnosis.  The examiner will be instructed to disregard this claimed stressor. However, the Veteran did have verified service in Iraq, and his separate descriptions of receiving incoming fire and fearing for his life are related to hostile military or terrorist activity and are consistent with the circumstances of his service.  In addition, the Veteran had submitted documents that were falsified and suggested that he experienced nightmares and anxiety attacks due to PTSD while he was still in service.  However, since this was not contained on the original records, this information is not credible as well.  An examination conducted coincident with separation showed the absence of any psychiatric symptomatology, and the Veteran indicated on his initial claim in April 2010 that he had been experiencing his symptoms for the last five years, which dates to nearly one year after separation.  As such, the examiner will also be instructed to disregard any suggestion that the Veteran experienced any psychiatric symtpoms during service.
The matters are REMANDED for the following actions:
1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD) or other acquired psychiatric disorder.  If the Veteran is diagnosed with PTSD using the DSM-5, the examiner should explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to exposure to hostile military or terrorist activity during service in Iraq.  
(a.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include his service in Iraq. 
(b.) For the purposes of providing any of these opinions, the examiner is instructed that the specific stressor of the Veteran having fallen off a truck and witnessing the injury of a fellow servicemember at that time is not credible and cannot serve as the basis for a PTSD stressor.
(c.) In addition, any assertion by the Veteran that he experienced PTSD symptoms in service is not credible and also cannot be relied upon in rendering an opinion.
2. Schedule the Veteran for an examination to determine the nature and etiology of any folliculitis.  The examiner must opine whether it is at least as likely as not related to service, including treatment for folliculitis.  

 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. N. Fournier, Law Clerk  

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.