Citation Nr: 1122017 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 10-28 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) or depression. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back condition. 3. Entitlement to service connection for bilateral elbow arthritis. 4. Entitlement to service connection for a left knee condition. ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Hartford, Connecticut. With regard to the Veteran's application to reopen his claim for an acquired psychiatric disorder, the Board notes that the Veteran's claim was originally for service connection for PTSD, and that the Board has recharacterized the issue on appeal more broadly in light of the medical evidence of record as well as statements submitted by the Veteran as one for service connection for an acquired psychiatric disorder, to include PTSD and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2010, the Veteran testified before the undersigned Veteran's Law Judge at a Travel Board hearing in Hartford, Connecticut. A transcript of the proceeding has been associated with the claims file. Despite a determination reached by the RO in the Statement of the Case to reopen the claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. With regard to the Veteran's application to reopen his claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder or depression, as will be discussed below, the Board has determined that new and material evidence has been received, and, therefore, the claim is reopened. The issues of whether new and material evidence have been submitted sufficient to reopen claims of entitlement to service connection for a heart/chest condition ("pain"), hearing loss, and high blood pressure have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See Form 21-526, October 2010; Rating Decisions, May 1995, March 2010 Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. The Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD or depression, is reopened, and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In May 1995, an unappealed RO decision denied the Veteran's claim for service connection for PTSD. 2. Evidence received since the May 1995 RO decision is not cumulative and redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. CONCLUSIONS OF LAW 1. The unappealed May 1995 RO decision that denied the Veteran's claim for service connection for PTSD is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and depression, has been received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is reopened and remanded, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2010). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). New evidence means 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 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) (2010). According to the Court, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. After a review of the evidence of record, the Board finds that new and material evidence has been submitted, and the claim is reopened. An unappealed May 1995 RO decision denied the Veteran's claim for service connection for PTSD on the basis that that there was no current diagnosis. Since the final May 1995 RO decision, the Veteran's personnel records have been associated with the claims file, which reflect that he is the recipient of, among other decorations, the Army Commendation Medal with "V" device for valorous action during an enemy attack while serving in Vietnam. Also, since the final May 1995 RO decision, VA treatment records have been associated with the claims file dated from June 2009 to March 2010 that reflect treatment for diagnosed PTSD and a major depressive disorder, as well as the Veteran's reported history of combat in service. See, e.g., VA Treatment Records, September 2009, December 2009, February 2010. Also, since the final May 1995 RO decision, the Veteran was provided with a September 2009 VA examination relating to a separate claim for a total disability rating based on individual unemployability(TDIU) claimed as due to, among other things, PTSD, and which examination report reflects diagnosed PTSD. Because new evidence received since the final May 1995 RO decision includes evidence of combat in service, as well as medical evidence of currently diagnosed PTSD and a major depressive disorder that the Veteran relates to service, the Board finds that new and material evidence has been received, and, therefore, the Veteran's claim is reopened. At this point, however, the Board will not adjudicate the reopened claim, as further development is necessary as explained below. ORDER As new and material evidence has been received regarding the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD and depression, the Veteran's claim is reopened; to that extent only, the appeal is granted. REMAND The Veteran served on active duty from April 1969 to November 1970. He claims that he incurred an acquired psychiatric disorder, to include PTSD and depression, bilateral elbow arthritis, a low back condition, and a left knee condition as a result of result of service. After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to adjudication of the Veteran's claims. As an initial matter, the Board notes that while the claims file includes the Veteran's enlistment and separation examination reports that were associated with the claims file around October 1972, it effectively does not include any actual treatment records from the Veteran's active service of about 1 1/2 years (other than dental). The Board further notes that it is not entirely clear whether a follow-up request was ever submitted to the National Personnel Records Center (NPRC) for any outstanding service treatment records, nor is there any record of any negative response received after such time (although the Board acknowledges that a request was made in May 1996 to the Army Reserve Personnel Center for copies of any outstanding records, and notations reflect that a negative response was received). When records are in the custody of a Federal department or agency, VA will make as many requests as are necessary to obtain relevant records, including service treatment records; VA will end its efforts only if VA concludes that the records sought do not exist or that further attempts would be futile. See 38 C.F.R. § 3.159(c)(2). The M21-1MR provides that VA must receive a response from the custodian before assuming it has met its duty to assist. M21-1MR, Part I, Chapter 1, Section C, Subsection 5. In light of the fact that it is not entirely clear whether there are outstanding service treatment records at the NPRC, the Board finds that a remand is necessary so that another attempt may be made to obtain any outstanding service treatment records and associate them with the claims file. With regard specifically to the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and depression, the Veteran asserts that he served in Vietnam for 14 months, including combat service as a 155 mm howitzer gunner, and that he came under enemy fire several times, that he was shot by friendly fire sometime around October 12 or 13, 1969 (the Board acknowledges that the Veteran recently reported the date he was shot as being around September 25, 1969), that he witnessed two soldiers die, and that he was bitten once by a rat. See, e.g., Statements, October 1972; Notice of Disagreement, April 2010; VA Examination Reports, May 1995 and January 2010; Board Hearing Transcript, November 2010 at 3-4. The Veteran asserts that he was first diagnosed with or told that he had PTSD in 1972 at the VAMC in Fort Hamilton, New York. The Veteran was provided with a VA examination most recently in January 2010 (he was also provided with a prior May 1995 examination in connection with the claim that was denied in May 1995, which examination report reflects a diagnosis of chronic alcohol abuse). The January 2010 VA examiner opined that the Veteran did not meet the diagnostic criteria for PTSD, and recorded a diagnosis of depression, NOS. The examiner did not, however, provide any opinion as to whether the Veteran's depression is related to his active service. The Board also notes that the January 2010 VA examiner noted the Veteran's service in Vietnam as being from September 1970 to November 1970, as opposed to September 1969 to November 1970, and it is unclear whether such transcription was intentional by the examiner or merely a typographical error. In light of the above, the Board finds that a remand is necessary so that the Veteran may be provided with a new VA examination relating to his claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). With regard specifically to the Veteran's claim for service connection for bilateral elbow arthritis, the Board notes that a September 2009 VA examination report relating to a separate TDIU claim reflects that the Veteran was unable to fully extend his arms (at either elbow), and a diagnosis of multijoint degenerative changes was recorded, including his elbows. Also, recent VA treatment records reflect complaints of pain and that the Veteran was unable to fully extend his elbows. See VA Treatment Records, July 2009, January 2010. The Veteran testified at the November 2010 Board hearing that his right elbow began "locking up" in service, and that he underwent surgery on his right elbow in 1978. See Transcript at 13 and 15. The Veteran has apparently alleged that his elbow conditions are a result of herbicide exposure in Vietnam. See Form 21-526, October 2010. Also, the Board notes that the September 2009 VA examination report (TDIU) reflects that the Veteran had a second right elbow surgery in 1979 (the Board also acknowledges that recent VA treatment records reflect a history of right elbow surgery in 1980, although there is no indication that a third surgical procedure was performed, but rather that this date is an approximation). The Veteran testified that he began to experience problems with his left elbow a few years after he underwent surgery on his right elbow. See Transcript at 15; see also VA Examination Report (TDIU), September 2009 (left elbow problems began in 1984). The Veteran has not been provided with a VA examination relating to his claim for service connection for bilateral elbow arthritis. While the Board acknowledges that bilateral elbow arthritis was diagnosed on VA examination in September 2009 relating to a TDIU claim, the Board notes that the examiner never provided any opinion, however, as to whether the Veteran's bilateral elbow condition is related to service. Based thereon, and in light of the fact that there is evidence of current bilateral elbow arthritis, and the Veteran testified that his right elbow problems began in service and his left elbow problems had their onset shortly thereafter, the Board finds that the evidence meets the low threshold requirement for a VA examination, and that a remand is necessary so that the Veteran may be afforded a VA examination to address the nature and etiology of any bilateral elbow condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the Veteran's claims for service connection for an acquired psychiatric disorder and for bilateral elbow arthritis, the Veteran has identified VA treatment records at the Fort Hamilton, New York VAMC dated in 1972 as relating to his claim for an acquired psychiatric disorder, and dated sometime prior to 1980 as relating to his right elbow. See Board Hearing Transcript at 7, 14. None of these treatment records, however, have been associated with the claims file, and it appears that no request was ever made for these records (although the Board does acknowledge that certain VA treatment records relating to the Veteran's knee, back, and hip were requested back in June 1972, in response to which certain VA treatment records unrelated to the Veteran's present claim dated in 1971 were received). In light of the above, the Board finds that a remand is necessary to obtain copies of any outstanding VA treatment records relating to the Veteran's claimed acquired psychiatric disorder and bilateral elbow arthritis and associate them with the claims file. See 38 C.F.R. § 3.159(c) (2010). As a final matter, with regard to the Veteran's application to reopen his claim for service connection for a low back condition, and with regard to his original claim for service connection for a left knee condition, the Board acknowledges that these claims were denied by way of the March 2010 rating decision. The Board notes, however, that the Veteran filed a notice of disagreement by way of his June 2010 Form 9, yet no Statement of the Case (SOC) has been issued relating to either of these claims. "In cases before the Board in which a claimant has timely filed a Notice of Disagreement with a determination of the agency of original jurisdiction on a claim, but the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to prepare and issue a Statement of the Case." 38 C.F.R. § 19.9(c) (2011); see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Therefore, the Board finds that a remand is necessary so that the Veteran may be provided with a Statement of the Case with regard to his application to reopen his claim for service connection for a low back condition, and with regard to his original claim for service connection for a left knee condition. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding service treatment records from the National Personnel Records Center (NPRC) and associate them with the claims folder. If these records are found to be unavailable, this should be specifically noted in the claims file. 2. Obtain all relevant VA treatment records from the Fort Hamilton, New York VA medical center dated from January 1972 to December 1972 relating to any psychiatric disorder, and dated from November 1970 to December 1980 relating to any elbow condition, and associate them with the claims file. If any of these records are found to be unavailable, this should be specifically noted in the claims file. 3. After the above development has been completed, schedule the Veteran for a mental health examination to determine the nature and severity of any acquired psychiatric disorder, to include PTSD and depression, and to determine whether it is at least as likely as not that any depression or PTSD identified on examination is related to service. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should specifically indicate that it has been reviewed. All necessary tests and studies should be conducted. The examiner must provide a complete rationale for all findings. If the examiner concludes that any acquired psychiatric disorder diagnosed on examination is not related to service, the examiner should explain, in detail, the reasoning behind this determination. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. After the above development in paragraphs (1) and (2) has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral elbow arthritis. The claims folder should be provided to the examiner for review in conjunction with the examination. After reviewing the file, conducting a thorough examination, and identifying the nature of any right or left elbow arthritis (or "locking"), the examiner should render an opinion as to whether it is at least as likely as not that any right or left elbow condition diagnosed on examination is related to the Veteran's service, to include (but not limited to) presumed herbicide exposure in Vietnam. The VA examiner should provide a comprehensive report including a complete rationale for all opinions and conclusions. If the VA examiner concludes that the Veteran does not have a right or left elbow condition that is related to service, the examiner must explain, in detail, the reasoning behind this determination. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5. Provide the Veteran with an SOC addressing the issue of whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a low back condition, and addressing the issue of entitlement to service connection for a left knee condition. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. 6. Then, readjudicate the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD or depression, and to service connection for bilateral elbow arthritis. If his claims remain denied, he should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs