Citation Nr: 0809812 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-07 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial or staged rating for post- traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for heart disease, to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran had active service from August 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In that rating decision, in pertinent part, the RO granted service connection for PTSD, assigning a 30 percent rating, and denied service connection for a heart disability. The veteran has perfected an appeal regarding the rating assigned to the PTSD disability and the claim for service connection for a heart disability. As discussed more fully below, the claim for service connection for a heart disability had previously been denied in an unappealed February 2000 rating decision. Therefore, this issue is properly styled as an application to reopen a claim of service connection for heart disease. The veteran testified for the undersigned Veterans Law Judge in June 2007. A transcript of this hearing has been associated with the claim file. The reopened claim for service connection for heart disease (as the result of the instant Board decision) and the claim for an increased rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied entitlement to service connection for heart disease and hypertension in a February 2000 rating decision. 2. Evidence obtained since the February 2000 rating decision denying service connection for heart disease is not cumulative of previously considered evidence, it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2000 rating decision denying service connection for heart disease is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.160(d), 20.1103 (2007). 2. New and material evidence has been received since the February 2000 rating decision denying service connection for heart disease; accordingly, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In this case, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the VCAA. Inasmuch as the determination below constitutes a full grant of that portion of the claim that is being addressed, there is no reason to address VCAA's duties to notify and assist on this matter. The reopened claim is further addressed in the remand appended to this decision. Factual Background, Legal Criteria and Analysis The veteran contends that he has a heart disability attributable to service. In a February 2000 unappealed rating decision, the RO denied service connection for a heart disability. The February 2000 rating decision, therefore, became final. See 38 U.S.C.A. § 7105. In December 2002, the veteran filed to reopen the claim. The Board notes that at the time of the February 2000 decision the RO considered the claim on a direct service incurrence basis only, and that the veteran has now asserted that his heart disease is secondary to the service connected PTSD. The Board highlights, however, a new etiological theory does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). In the July 2004 rating decision on appeal, the RO either implicitly found that new and material evidence had been received or did not consider the claim to have been previously denied. Regardless of the RO's action regarding reopening the veteran's claim, however, the Board must independently address the issue of reopening the veteran's previously denied claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board does not have jurisdiction to review the claim on a de novo basis in the absence of a finding that new and material evidence has been submitted). Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The evidence that must be considered in determining whether there is a basis for reopening the claim is that evidence added to the record since the last disposition in which the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). For claims filed on or after August 29, 2001, such as this claim, new evidence means existing evidence not previously submitted to agency decisionmakers. 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). With these considerations, the Board must now review all of the evidence which has been submitted by the veteran or otherwise associated with the claims file since the last final decision in February 2000. In the February 2000 rating decision, the RO found that there was no medical evidence that the veteran was diagnosed as having heart disease, no evidence of such during service and no evidence of a link between a current diagnosis of heart disease and any incident of service. In this regard, although the RO found that the veteran did not have a current heart disability, in a September 1996 VA general examination report of record, the examiner documented that the veteran had a myocardial infarction in 1996 and had a defibrillation implant. Since the February 2000 rating decision, additional evidence has been associated with the claims file. This evidence includes evidence of a current heart disability. The veteran was provided with a VA heart examination in December 2003. The examiner diagnosed coronary artery disease, but found there was not enough evidence to find a nexus between the veteran's PTSD and coronary artery disease. In the February 2000 rating decision, one basis for denial of the claim was that there was no current disability. The evidence discussed above relates to this unestablished fact. As this fact is necessary to substantiate the claim of whether the veteran has a current (chronic) disability related to service or to a service-connected disability, and given the claim that the veteran's heart disease is either linked to service or was caused or aggravated by his service- connected PTSD, the Board finds that new and material evidence has been received. This evidence is neither cumulative nor redundant of the evidence of record at the time of the February 2000 rating decision and it raises a reasonable possibility of substantiating the claim. The claim is reopened. ORDER New and material evidence having been received, the claim for entitlement to service connection for heart disease is reopened. The appeal is granted to this extent only. REMAND The Board finds that before the claims on appeal are ripe for adjudication the veteran must be provided with additional notice and assistance. As noted above, the veteran was provided with a Board hearing in June 2007. The veteran has submitted additional evidence after the Board hearing. Although the RO issued supplemental statements of the case in July 2007 and October 2007, after the Board hearing, it appears that the veteran has submitted additional evidence since the October 2007 supplemental statement of the case. Upon remand, if the benefits sought on appeal are not granted, the AMC/RO should consider all evidence of record, to include all evidence received after a supplemental statement of the case (SSOC) was issued in October 2007, when issuing the current SSOC. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. The veteran contends that his PTSD is more disabling than currently evaluated. The psychiatric evidence currently of record is conflicting as to the nature and severity of the veteran's psychiatric disorders, to include PTSD. The Board will briefly outline some of the competent evidence of record in this regard, to include the wide range of Global Assessment of Functioning (GAF) scores reported. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). In this regard, the Board notes that the veteran was last provided a VA psychiatric examination in September 2005. In the examination report, the examiner assigned a GAF score of 46. The claims file includes other medical documents in which the veteran was assigned a GAF in the 40s. A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Further in a December 2006 "Medical Assessment" form, the clinician completing the document indicated that due to PTSD the veteran was "permanently damaged and unemployable." In contrast, the claims file also includes medical records that indicate that the veteran has less severe symptoms due to his PTSD. In a January 2007 psychiatric examination performed by Industrial Medicine Associates, Inc, the veteran was assigned a GAF of 60. In addition, in an earlier VA examination, performed in December 2003, the veteran was assigned a GAF of 59. This examiner reviewed the claims file as part of the examination. A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Consideration has been given to the question of whether a staged rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when an initially assigned disability evaluation has been disagreed with, as in this case, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period). However, after review of the medical evidence of record, the Board finds conflicting evidence to such a degree that an additional VA psychiatric examination is warranted not only to determine the currently severity of the veteran's PTSD but also to attempt to reconcile some of these conflicting findings. 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). In the instant decision, the Board reopened the claim for service connection for heart disease. The veteran, however, has not been provided notice regarding secondary service connection. As to this aspect of the claim, the Board notes that, under 38 C.F.R. § 3.310, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury and secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). A recent amendment to 38 C.F.R. § 3.310, effective October 10, 2006, was enacted. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice- connected disease or injury must be established by medical evidence created before the onset of aggravation. The veteran has not been provided VCAA notification regarding secondary service connection. The veteran should be provided the text of 38 C.F.R. § 3.310 that was effective October 2006. Upon remand, in a VCAA notification letter, the veteran should be sent a copy of 38 C.F.R. § 3.310 and the amendment to that regulation, effective October 10, 2006. See 38 C.F.R. § 19.9 (2007). As to the question of whether any VCAA notice is required with respect to the other claim on appeal, a higher initial or staged rating for PTSD, such claim for increase is a "downstream issue" from the claim for service connection for post-traumatic stress disorder. In this type of circumstance, if the claimant has received a VCAA letter for the underlying claim and raises a new issue (i.e., a higher initial rating) following the issuance of the rating decision that awarded the underlying claim, VA is not required to issue a new VCAA letter. VAOPGCPREC 8-2003 (Dec. 2003). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case if the disagreement is not resolved. Id. This was completed, when VA issued a statement of the case, wherein it provided the veteran with the evidence necessary to establish a higher evaluation for post-traumatic stress disorder. Notwithstanding the foregoing, the Board finds that, since this issue must be remanded for additional development, the RO should ensure that the veteran has been provided VCAA notice regarding the claim for an initial or staged rating in excess of 30 percent for PTSD. The VCAA letter issued upon remand should address both claims on appeal. 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez- Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). Further, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. The veteran should be provided a notification letter that satisfies the requirements set forth in the above discussion. After this development has been completed, the AMC/RO should consider whether another examination regarding the claim of secondary service connection for heart disease, to include as secondary to PTSD is warranted. See 38 C.F.R. §§ 3.310; Allen, supra. See also 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO must review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA by issuing the veteran an additional notification letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159; see also Vazquez-Flores, slip op. at 5-6. The notification letter should inform the veteran of the evidence needed to substantiate the underlying claims. Specifically, the letter should: (a) inform the veteran about the information and evidence not of record that is necessary to substantiate the claims for the benefits sought; (b) inform the veteran about the information and evidence that VA will seek to provide; (c) inform the veteran about the information and evidence the veteran is expected to provide; and (d) request that the veteran provide any evidence in the veteran's possession that pertains to the claims. The VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must be consistent with the information or evidence needed to establish an increased rating as outlined by the Court in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). (See holding of this decision above.) Further, the AMC/RO should provide the veteran with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the benefits sought as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran must also be notified of the information and evidence needed to substantiate the claim for secondary service connection. The veteran should be provided with a copy of 38 C.F.R. § 3.310 and the amendment to that regulation, effective October 10, 2006. 2. All VA medical examination and treatment reports, and any private medical records that have not been obtained, which pertain to the claims on appeal must be obtained for inclusion in the record. 3. The AMC/RO should afford the veteran a comprehensive psychiatric examination for the purpose of determining the current severity of his PTSD. The claims file should be sent to the examiner and the examiner should review the relevant evidence in the claims file. The psychiatrist must assign a GAF score for the veteran's PTSD. 4. After the directed development has been completed regarding the claim for service connection for heart disease, to include as secondary to the veteran's service-connected PTSD, the AMC/RO should consider whether another examination is warranted with respect to this claim. 38 C.F.R. § 3.159(c)(4). 5. Thereafter, the veteran's claim for an initial or staged rating in excess of 30 percent for PTSD and for service connection for heart disease on direct incurrence and secondary bases must be adjudicated on the basis of all of the evidence of record and all governing legal authority. If any benefit sought on appeal remains denied or the rating assigned for PTSD is not granted to the veteran's satisfaction, the veteran and his representative must be provided with a supplemental statement of the case. This supplemental statement of the case must include 38 C.F.R. § 3.310 and the amendment to that regulation, effective October 10, 2006. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the AMC/RO. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). The purpose of this remand is to obtain evidentiary development and to preserve the veteran's due process rights. No inference should be drawn as to the outcome of these matters by the actions herein requested. ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs