Citation Nr: 1113147 Decision Date: 04/04/11 Archive Date: 04/13/11 DOCKET NO. 09-20 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a prostate disorder. 2. Entitlement to service connection for a skin disorder to include as due to exposure to Agent Orange. 3. Entitlement to service connection for a respiratory or throat disorder. 4. Entitlement to service connection for an eye disorder to include as secondary to service-connected diabetes mellitus. 5. Entitlement to service connection for a heart disorder to include as secondary to service-connected diabetes mellitus. 6. Entitlement to service connection for impotence to include as secondary to service connected diabetes mellitus. 7. Entitlement to service connection for peripheral neuropathy of the right upper extremity to include as secondary to service connected diabetes mellitus. 8. Entitlement to service connection for peripheral neuropathy of the left upper extremity to include as secondary to service connected diabetes mellitus. 9. Entitlement to service connection for peripheral vascular disease of the right lower extremity to include as secondary to service connected diabetes mellitus. 10. Entitlement to service connection for peripheral vascular disease of the left lower extremity to include as secondary to service connected diabetes mellitus. 11. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD) and if so whether service connection is warranted. 12. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder and if so whether service connection is warranted. 13. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1966 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2010, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. The issues of entitlement to service connection for a prostate disorder, entitlement to service connection for a skin disorder to include as due to exposure to Agent Orange, entitlement to service connection for a respiratory or throat disorder, entitlement to service connection for an eye disorder to include as secondary to service-connected diabetes mellitus, entitlement to service connection for a heart disorder to include as secondary to service-connected diabetes mellitus, entitlement to service connection for impotence to include as secondary to service connected diabetes mellitus, entitlement to service connection for peripheral neuropathy of the right upper extremity to include as secondary to service connected diabetes mellitus, entitlement to service connection for peripheral neuropathy of the left upper extremity to include as secondary to service connected diabetes mellitus, entitlement to service connection for peripheral vascular disease of the right lower extremity to include as secondary to service connected diabetes mellitus, entitlement to service connection for peripheral vascular disease of the left lower extremity to include as secondary to service connected diabetes mellitus, entitlement to service connection for post-traumatic stress disorder (PTSD), entitlement to service connection for a low back disorder, and whether new and material evidence has been received to reopen a claim of entitlement to service connection for a head injury 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 June 2002, the RO denied service connection for PTSD. The Veteran did not appeal the decision. 2. The evidence received since the RO's final denial of service connection for PTSD in June 2002 relates to an unestablished fact necessary to substantiate the claim and creates a reasonable possibility of substantiating the claim. 3. In June 2002, the RO denied service connection for a low back disorder. The Veteran did not appeal the decision. 4. The evidence received since the RO's final denial of service connection for a low back disorder relates to an unestablished fact necessary to substantiate the claim and creates a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2002 RO decision that denied service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2010). 2. New and material evidence has been received since the June 2002 decision and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002). 3. The June 2002 RO decision that denied service connection for a low back disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2010). 4. New and material evidence has been received since the June 2002 decision and the claim for service connection for a low back disorder is reopened. 38 U.S.C.A. § 5108 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA On the VCAA notice requirements for a new and material evidence claim, pursuant to Kent v. Nicholson, No. 04-181 (Vet. App. March 31, 2006), given the favorable outcome on the claims to reopen noted below, no conceivable prejudice to the Veteran could result from reopening the claims. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Regardless of the RO's actions, the Board must make an independent determination on whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). The United States Court of Appeals for Veterans Claims (Court) has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Post-traumatic Stress Disorder In June 2002 the RO denied service connection for PTSD. The Veteran did not timely appeal the decision and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2010). Evidence considered in the June 2002 decision included the Veteran's service treatment records, his personnel records, and VA outpatient treatment records. The service treatment records showed no complaint, diagnosis or treatment for a psychiatric disorder. His service personnel records showed that he served in Vietnam for one year and nine days. His MOS was rifleman. The RO denied the claim finding that there was no showing of PTSD and no finding of any relationship to service. Evidence associated with the claims file since the June 2002 decision includes private medical records, VA treatment records, and Board hearing testimony. Among this evidence are several diagnoses of PTSD as well as testimony regarding combat related stressors. This evidence must be accepted at face value now; in general, for the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In particular a current diagnosis now exists and credible evidence regarding a stressor is now of record. This evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Thus the claim is reopened. Low Back Disorder In June 2002 the RO denied service connection for a low back disorder. The Veteran did not timely appeal the decision and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2010). Evidence considered in the June 2002 decision included the Veteran's service treatment records, his personnel records, and VA outpatient treatment records. The service treatment records showed that the Veteran was treated for back pain on several occasions. The RO denied the claim finding that there was no showing of a current low back disorder. Evidence associated with the claims file since the June 2002 decision includes private medical records, VA treatment records, and Board hearing testimony. Among this evidence is a finding on private records of small broad based disc protrusion eccentric to the left at L5-S1 on MRI in May 2004. In a letter received by VA in July 2007, a private examiner reported that the Veteran had lumbar radiculopathy. This evidence must be accepted at face value now; in general, for the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In particular a current diagnosis now exists as to a low back disorder. This evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Thus the claim is reopened. ORDER New and material evidence has been received and the claim for service connection for PTSD is reopened; to this extent, the claim is granted. New and material evidence has been received and the claim for service connection for a low back disorder is reopened; to this extent, the claim is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA records indicate that the Veteran is receiving Social Security Administration (SSA) disability benefits. (See VA outpatient record of May 2007). The decision and any related medical records have not yet been associated with the claims file, a remand is necessary to obtain these records. Thus, the Board finds that the RO should obtain and associate with the claims file a copy of SSA's disability determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. The Veteran seeks service connection for PTSD. Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Regarding the verification of the Veteran's reported stressors, the Board observes the recent amendment to 38 C.F.R. § 3.304 concerning stressors based on a Veteran's "fear of hostile military or terrorist activity." The amendment provides that if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "fear of hostile military or terrorist activity" means that "a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, . . . , and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 75 Fed. Reg. at 39,852. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Here, the Veteran's service personnel records under "combat history" show that the Veteran participated in Operation Prairie II, Com Lo District , Quang Tri Province, R.V.N. from February 19, 1967 to March 3, 1967. The Veteran has been diagnosed with PTSD. (See, e.g. VA outpatient record of August 2008 and April 2009). He has testified at his August 2010 Board hearing that he saw combat in Vietnam. He stated that he was about five miles from the DMZ and that he participated in Operation Prairie II. He has stated that he had to go out into the field and fight and that all that participated with him were killed. The evidence verifies that he was in the area where this incident would have occurred in Vietnam. Resolving any doubt in the Veteran's favor, the Board finds that it is likely that the Veteran participated in combat with his unit; hence, corroboration of a specific in-service stressor associated with such service-if the stressor is consistent with the circumstances with that service-is unnecessary. Here, the Board finds that the Veteran's assertion of participating in combat missions is consistent with his likely combat service. Significantly, there is nothing of record to directly contradict the Veteran's account of his in-service experiences. See Pentecost v. Principi, 17 Vet. App. 257 (2003); Suozzi v. Brown, 10 Vet. App. 307 (1997). Given the Board's findings as to the Veteran's likely combat and the PTSD assessment currently of record, the Board finds that VA psychiatric examination to obtain clear medical evidence as to whether the Veteran meets the diagnostic criteria for PTSD due to combat service in Vietnam is warranted. See 38 U.S.C.A. § 5103A. The Veteran is claiming service connection for peripheral neuropathy of the upper extremities, a heart disorder, and peripheral vascular disease secondary to his service connected diabetes mellitus. He has been treated for upper extremity neuropathy and numbness of the hands on VA outpatient treatment, and with swelling of the hands and feet. (See, e.g. VA outpatient record of August 2007). He has also been noted to have an abnormal EKG and a history of heart disease. (See, e.g., VA outpatient record of May 2007 and October 2007) An opinion regarding the etiology of the claimed disorders has not been requested. He has also claimed that he has a skin condition secondary to exposure to Agent Orange in Vietnam. The record shows that he did serve in Vietnam. He has been diagnosed with a skin disorder. (See, e.g. VA outpatient record of December 2009 diagnosing verrucous papules on the back and seborrheic keratosis). An opinion regarding the etiology of this disorder has not been obtained. The Veteran is also claiming service connection for a low back disorder. The record shows that he was treated in service for low back complaints and that he has a current low back diagnosis. He has testified that he has had back pain since service and that this occurs in the same area that was treated in service. An opinion regarding the etiology of this disorder has not been obtained. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2010). Accordingly, the case is REMANDED for the following actions: 1. Obtain from the Social Security Administration (SSA) the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. If medical evidence utilized in processing such claim is not available, that fact should be documented by SSA and such notice entered in the claims folder. 2. Schedule the Veteran for a VA psychiatric examination to determine if the Veteran has PTSD related to his reported stressor. Psychological testing should be conducted with a view toward determining whether the Veteran in fact meets the criteria for a diagnosis of PTSD. The examiner should thereafter review the Veteran's claims file and test results, examine the Veteran, and provide an opinion as to whether the Veteran has symptomatology that meets the diagnostic criteria for PTSD. If a diagnosis of PTSD is deemed appropriate, the psychiatrist should comment upon the link between the current symptomatology and the Veteran's in-service stressor(s). The claims folder and a copy of this remand must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given. 3. Schedule the Veteran for a neurological examination. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The examiner should evaluate the Veteran's complaints of peripheral neuropathy of the upper extremities. If a diagnosis is made, the examiner should offer an opinion as to the etiology of the disorder(s) to include whether it is at least as likely as not (a 50 percent probability or greater) that the disorder(s) is related to the Veteran's service or to his service-connected diabetes mellitus. The examiner should provide a complete rationale for any opinion given. 4. Schedule the Veteran for a cardiology examination. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The examiner should evaluate the Veteran's complaints and indicate whether he has a heart disorder. If a diagnosis is made, the examiner should offer an opinion as to the etiology of the disorder to include whether it is at least as likely as not (a 50 percent probability or greater) that the disorder is related to the Veteran's service or to his service-connected diabetes mellitus. The examiner should provide a complete rationale for any opinion given. 5. Schedule the Veteran for a vascular examination. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The examiner should evaluate the Veteran's complaints of peripheral vascular disease of the lower extremities. If a diagnosis is made, the examiner should offer an opinion as to the etiology of the disorder(s) to include whether it is at least as likely as not (a 50 percent probability or greater) that the disorder(s) is related to the Veteran's service or his service-connected diabetes mellitus. The examiner should provide a complete rationale for any opinion given. 6. Schedule the Veteran for a dermatology examination. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The examiner should evaluate the Veteran's skin complaints. If a skin disorder is found, the examiner should offer an opinion as to the etiology of the disorder(s) to include whether it is at least as likely as not (a 50 percent probability or greater) that the disorder(s) is related to the Veteran's service to include exposure to Agent Orange. The examiner should provide a complete rationale for any opinion given. 7. Schedule the Veteran for an orthopedic examination to determine the nature and etiology his back complaints. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The examiner should offer an opinion as to the etiology of any diagnosed back disorder(s) to include whether it is at least as likely as not (a 50 percent probability or greater) that the disorder(s) is related to the Veteran's service. The examiner should provide a complete rationale for any opinion given. 8. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010); See also Stegall v. West, 11 Vet. App. 268 (1998). 9. Following completion of the above, and the accomplishment of any further development deemed appropriate, the claims should be readjudicated. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs