Citation Nr: 1125180 Decision Date: 07/01/11 Archive Date: 07/14/11 DOCKET NO. 07-17 271A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for multiple sclerosis (MS). 2. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling, prior to April 17, 2010. 3. Entitlement to an initial increased rating for PTSD, rated as 50 percent disabling, since April 17, 2010. 4. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to April 1970. He is the recipient of the Combat Infantryman's Badge and Silver Star. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 and September 2007 rating decisions of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in September 2009. A transcript of that hearing is of record and associated with the claims folder. The Board remanded the instant claims in January 2010 for further development. In August 2006, the Veteran filed a claim for an increased rating for diabetes mellitus. In July 2007, VA examinations for diabetes mellitus and its complications were obtained. In the January 2010 Board decision, the Board notified the RO of the failure to address this claim and referred it to the RO for appropriate action. It is noted that the issue has still not been adjudicated. The Board again refers the issue of an increased rating for diabetes mellitus and its complications for appropriate action. With respect to the Veteran's attempt to reopen the claim for service connection for MS, the Veteran's petition was denied in a September 2006 decision. The Veteran filed a December 2007 notice of disagreement. A July 2008 statement of the case was mailed to the Veteran. He subsequently filed a January 2009 substantive appeal (VA-9) addressing the claim, which was not timely as per 38 C.F.R. § 20.302(b) (2010). However, the RO continued to take action to indicate that this issue was on appeal, which included scheduling the Veteran for a personal hearing. The Veteran subsequently testified at a Travel Board hearing in September 2009 and the Board remanded the issue for further development in January 2010. Therefore, since continuing action and development has been performed in the instant claim, and no steps were previously taken to close the appeal, the requirement that there be a timely substantive appeal is deemed waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The issues of increased initial ratings for PTSD, before and after April 17, 2010 and TDIU being remanded 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. In an unappealed decision dated in July 2005, the RO denied the reopening of the Veteran's claim for service connection for MS, which had been previously denied on the basis of there being no evidence of incurrence of MS in service or within the 7 year presumptive period. 2. Evidence received since the July 2005 decision does not raise a reasonable possibility of substantiating the claim of service connection for MS. CONCLUSIONS OF LAW 1. The July 2005 rating decision which denied the petition to reopen the claim of service connection for MS is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(b) (2010). 2. Evidence submitted subsequent to the July 2005 rating decision denying the petition to reopen the claim for service connection for MS is not new and material. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1103 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the Veteran in December 2006 was compliant with Kent. The letter indicated the general criteria for reopening a previously denied claim, and information concerning why the claim was previously denied. He was told that the claim for MS was denied because there was no evidence showing his MS was incurred in service or within the 7 year presumptive period. With respect to the Dingess requirements, in December 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Service treatment records have been obtained. Identified VA and private treatment records and records from the Social Security Administration have also been added to the claims file. Neither the Veteran nor his representative has identified outstanding evidence that has not been obtained. The Board notes that the Veteran's treating social worker has indicated that the Veteran has been his patient at the Tampa Vet Center. Records from that facility have not been obtained. In that regard, recognition is given to the fact that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998). A remand for those records is not deemed necessary, however. The Veteran's therapist specifically noted that the Veteran's treatment from that facility was limited to individual and group psychotherapy for his PTSD since 2005. Such records would not be relevant to the Veteran's petition to reopen his claim for service connection for multiple sclerosis. As to his petition to reopen the claim of service connection for MS, VA need not conduct an examination with respect to the claim of whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). See also Woehlaert v. Nicholson, 21 Vet.App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.) The Veteran also testified at a Travel Board hearing in September 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer/Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ indicated the basis of the issue. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Here, during the hearing, the Veteran's representative stated that the diagnosis of the Veteran's MS occurred well after the presumptive period, and the VLJ asked the Veteran if he had any evidence or medical opinion relating the onset of his MS between 1970 or 1978. The claim was subsequently remanded in January 2010 in an effort to provide the Veteran the opportunity to obtain any additional information needed to substantiate the claim . Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Wakeford v. Brown, 8 Vet. App. 237 (1995). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, the new and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New " is evidence not previously submitted and "material" relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The Veteran's initial claim for service connection for MS was in May 2001. The claim was denied in a November 2001 rating decision. The RO determined that service connection was not warranted because it was not shown in service or until 1997, more than the 7 years after the presumptive period established for MS. He was notified of the denial in a letter of that same month, and did not appeal that decision. The decision became final. In December 2004, the Veteran indicated that he was applying for service connected disability compensation. In January 2005, the RO sent the Veteran a letter indicating that he must indicate in his communication the benefit sought. In a letter of that same month, the Veteran indicated, in pertinent part, that he was claiming service connection for MS, which included the argument that his MS was due to Agent Orange exposure. In this regard, it is noted that in Ashford v. Brown, 10 Vet. App. 120 (1997), the Court held that when a Veteran attempts to reopen a claim by bringing a new etiological theory for the causation of his disease than that which was previously addressed in the earlier final denial, such new theory of causation does not itself constitute a new claim, obviating the necessity of presenting new and material evidence for that same claim. By rating decision of July 2005, the request to reopen the claim for service connection for MS was denied. VA conceded his exposure to Agent Orange, but there was no evidence presented that he had MS related to service, within the presumptive period of 7 years of service discharge, or due to Agent Orange exposure. No new and material evidence was presented to reopen the claim. The Veteran received notice by letter of the same month and did not appeal that decision. That decision became final. It bears noting that some treatment records and a statement from T.T.M. appear to have been associated with the claims file within the year following the July 2005 decision. The Board recognizes that the Court has held that, if new and material evidence has been submitted within a year of the RO decision, 38 C.F.R. 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim. Buie v. Shinseki, 24 Vet. App. 242, 242-52 (2010). Thus, the July 2005 decision is final unless the evidence submitted within a year of that date is new and material to the claim. Accordingly, the Board has reviewed this evidence, but concludes that none of it is both new and material to the claim. Specifically, neither the outstanding treatment records nor the statement from T.T.M. were material to the Veteran's claim, i.e., established the Veteran's MS had its onset in service or within 7 years of service discharge. Accordingly, this evidence is not new and, as the Veteran did not appeal this decision, it became final one year later. The Veteran attempted to reopen the claim for service connection for MS in August 2006. By rating decision of September 2007, the attempt to reopen the claim for service connection for MS was denied. The Veteran was provided notice of the denial in a letter of October 2007. He appealed this denial and the claim is before the Board at this time. Evidence received since the most recent denial in July 2005 included a September 2005 private medical statement from G.O.B., a June 2006 letter written on behalf of the Veteran's claim by the Vet Center Clinical Coordinator (T.T.M.), duplicate service treatment records, Social Security disability records which were used to make a social security determination on the Veteran's behalf, VA outpatient treatment records, and September 2009 Travel Board hearing testimony from the Veteran on behalf of his claim. A September 2005 private medical statement from Dr. G.O.B. in support of the Veteran's claim is not new and material. This medical statement indicates, in pertinent part, that the Veteran has been a patient of Dr. G.O.B. for several years. The statement also indicated that an August 1997 CT scan, performed after a head injury, and a subsequent follow-up examination by a neurologist, confirmed that the Veteran had MS. This statement, which is new, as it has not previously been of record, is not material. This medical statement indicates that the Veteran has had MS since August 1997, which is many years since the Veteran's service discharge and many years since the 7 year presumptive period for MS. Therefore, new and material evidence has not been submitted to reopen the claim for service connection for MS. A June 2006 letter written on behalf of the Veteran's claim by T.T.M. is not new and material. T.T.M. referenced a claim of a different veteran that resulted in the grant of service connection for MS. He indicated that the favorable outcome had been based, in part, on an October 2000 medical opinion written by C.N.B., MD. He not that Dr. C.N.B. had indicated that early symptoms and manifestations of MS are often mild and temporary and often do not result in a patient seeking care, and that the diagnosis is often not made because it is a difficult disease to diagnose. He added that Dr. C.N.B. also related optic neuritis as an early symptom of MS. T.T.M. then attempted to compare the Veteran's symptoms and medical findings with the medical opinion provided by Dr. C.N.B. in a different case. This evidence, which has not been presented before, is new. However, this evidence is not material, as it does not apply to an unestablished fact necessary to substantiate the claim. The findings provided in a different case by Dr. C.N.B. do not relate to the findings specific to the Veteran's claim. There is also no evidence that T.T.M. has the medical expertise to draw a correlation between the findings made by Dr. C.N.B. and the facts presented in the Veteran's medical history. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Neither the statement from T.T.M. nor the medical opinion from Dr. C.N.B., which is not an opinion of the Veteran's medical evidence, raise a reasonable possibility of substantiating the claim. Duplicate service treatment records are not new and material to reopen the Veteran's claim for service connection for MS. Those records, which were previously reviewed in connection with the Veteran's claim, do not relate to an unestablished fact necessary to substantiate the claim. Social Security disability records which were used to make a social security determination on the Veteran's behalf, are not new and material to reopen the claim. These records, which were essentially duplicates of previously reviewed medical records, show that the Veteran has had MS, diagnosed since 1997. These records cannot be considered to reopen the claim of service connection for MS. VA outpatient treatment records are not considered new and material. These records show a history of, and ongoing treatment for, MS. This evidence is new in that it is not evidence that was previously of record. However, it is not material as it does not relate to a showing of MS in service or within 7 years of service discharge. Therefore, this evidence does not raise a reasonable possibility of substantiating the claim. Additionally, the Veteran testified before the undersigned VLJ in September 2009. He testified that he received treatment for visual problems and dizziness between 1970 and 1977 from a physician, Dr. R.M., in Plant City, Florida. This physician, is now deceased, and his records are not available. He also testified that he and his wife have been married since 1970, and that she was aware of his symptoms and could address those symptoms in a letter. The Board has considered his testimony provided in connection with his claim and these lay statements are essentially duplicative of his contentions all along; and, therefore they are not new. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). Particularly, the Veteran was given an opportunity to have his wife present her statement of his symptoms on behalf of his claim. Based on his contentions raised at his Travel Board hearing, the Board remanded his claim in January 2010, to provide him an opportunity to submit a statement from his wife and a medical opinion from Dr. C.N.B. Neither the medical opinion nor his wife's statement have been submitted on behalf of his claim. As such, the testimony of the Veteran is not new and material. As the evidence received since the last final denial in July 2005 is not both new and material, the application to reopen the previously denied claim must fail. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. ORDER New and material evidence to reopen the claim of service connection for MS has not been submitted, and the claim is denied. REMAND The Veteran claims that his initial rating for PTSD is more severe than the current evaluations reflect. Another remand is unfortunately required in this case. A review of the record reveals that a December 2006 statement from the Vet Center Clinical Coordinator indicates that the Veteran has been receiving individual and group psychotherapy from the Tampa Vet Center since January 2005, for treatment for chronic PTSD. He compiled a list of the Veteran's PTSD symptoms from the Vet Center treatment notes. Those records are not associated with the claim. Those records, in connection with the Veteran's treatment received from the Vet Center, should be obtained and associated with the claim folder. Additionally, previously raised on the Veteran's behalf in the January 2010 Board remand, was that the Veteran claimed to be unemployable as a result of his service-connected PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Based on the Veteran's assertions, the Board found that the issue of TDIU was reasonably raised by the record and as, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice. Having determined that the issue of TDIU is properly raised by the record, the Board finds that further development is necessary prior to adjudicating the claim. In this regard, the law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). The Board acknowledges that in addition to PTSD, the Veteran is also currently service connected for diabetes mellitus, type II, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts of both eyes, tinnitus, and bilateral hearing loss. Given the evidence of record demonstrating that the Veteran is currently unemployed and may be unemployable, a VA examination and opinion should be provided to determine whether his service-connected disability(ies), render him unable to secure or follow a substantially gainful occupation. Therefore, a VA examination and opinion is also required to determine, to the extent possible, whether his service-connected disability(ies) preclude substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Contact the Tampa Vet Center and obtain all of the treatment notes related to the Veteran's individual and group psychotherapy since January 2005 and associate those records with the claims folder. 2. The RO must provide the Veteran with examinations (psychiatric, endocrinology, optical, audiology) to determine the effects of his service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The claims file must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case and the claims file, the examiner must provide opinions as to whether the Veteran's service- connected disabilities alone, or in the aggregate, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. The report must be typed. 3. Then, readjudicate all the issues on appeal, to include the issue of entitlement to TDIU, and entitlement to an initial increased rating for PTSD, prior to and since April 17, 2010. If the benefits sought on appeal are not granted, he and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. The Veteran 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. 2009). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs