Citation Nr: 1300002 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 07-21 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder. 4. Entitlement to an effective date prior to September 27, 2007, for the award of service connection for peripheral neuropathy of the bilateral lower extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In August 2005, the Veteran submitted a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). However, the evidence of record includes diagnoses of more than one psychiatric disorders, including PTSD, major depression, bipolar disorder and mood disorder, among others. Although an appellant may only seek service connection for PTSD, a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, an appellant does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, such as PTSD, but instead makes a general claim for compensation for the difficulties posed by the appellant's mental condition. Id. Previously, the Veteran filed a claim of entitlement to service connection for depression in June 1995, which was denied in an October 1995 rating decision. As such, the Veteran's August 2005 claim will be addressed herein as captioned above. The reopened issue of entitlement to service connection for a psychiatric disorder and the issue of entitlement to an effective date prior to September 27, 2007, for the award of service connection for peripheral neuropathy of the bilateral lower extremities, are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The evidence of record does not show a current diagnosis for peripheral neuropathy of the left upper extremity. 2. The evidence of record does not show a current diagnosis for peripheral neuropathy of the right upper extremity. 3. The Veteran's claim for service connection for a psychiatric disorder was last denied in an October 1995 rating decision, and no appeal was initiated from that decision. 4. Evidence received since the October 1995 rating decision is new and material, and raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left upper extremity was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Peripheral neuropathy of the right upper extremity was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. New and material evidence has been submitted since the October 1995 rating decision, and the Veteran's claim for service connection for a psychiatric disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, the Board is taking action favorable to the Veteran by reopening the claim. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the Veteran. 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 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. The RO's September 2005 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the RO's March 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.). In addition, the duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also 38 C.F.R. § 3.159(c)(4)(iii) (the duty to provide an examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence). The Board finds that a VA examination is not required in this case. The evidence of record does not show a current diagnosis of peripheral neuropathy of the upper extremity. Further, no continuity of symptomatology has been argued or shown. Thus, a VA medical examination addressing the etiology of the claimed disorders is not required. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Peripheral Neuropathy of the Bilateral Upper Extremities The Veteran filed his claim of service connection for peripheral neuropathy of the bilateral arms, to include as secondary to his service-connected diabetes mellitus, in August 2005. He does not claim any specific symptoms regarding this claim. Service connection for diabetes mellitus, type II, with erectile dysfunction, diabetic retinopathy and cataractous changes, was granted in a March 2007 rating decision, on the basis of exposure of herbicide during the Veteran's service in the Republic of Vietnam. There is simply no evidence of record showing a current diagnosis of peripheral neuropathy of the upper extremities. Further, no continuity of symptomatology has been argued or shown. The Veteran's service treatment records are silent as to any complaints or diagnoses concerning peripheral neuropathy of the left or right upper extremity. A February 1995 VA hospital record noted that the Veteran had a questionable history of right arm weakness and numbness that was evaluated in 1982 and attributed to migraine at that time. The Veteran underwent a VA general medical examination in November 1996 and diabetes examinations in May 2007 and January 2008. He reported a history of diabetes since October 1988 but did not report any symptoms pertaining to the upper extremities. The May 2007 VA examination report stated that no peripheral nerves were identified in the Veteran's hands as he denied and there were no symptoms of diabetic neuropathy of the hands. On the January 2008 VA examination, the Veteran complained of intermittent cramping in the arches of his feet, bilaterally, but denied burning, numbness, and tingling of the toes, feet, and hands. Additionally, an April 2012 VA treatment report stated that the Veteran was closely monitored for autonomic dysfunction secondary to his diabetes but he had no symptoms at this time. Although the record shows a diagnosis of peripheral neuropathy since 2007, the January 2008 VA examination report noted that this diagnosis was made by the Veteran's primary care physician, Dr. C., after an abnormal monofilament examination of the left and right foot. In June 2008, Dr. C. stated that the Veteran had an unsteady gait secondary to his autonomic neuropathy. However, no upper extremity peripheral neuropathy was ever diagnosed. Nor do the findings of the VA examinations reflect any signs of peripheral neuropathy of the upper extremities. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With no evidence of a current disability, service connection for peripheral neuropathy of the upper extremities is not warranted. Accordingly, the preponderance of the evidence is against this claim for service connection and the doctrine of reasonable doubt is not for application. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for peripheral neuropathy of the left and right upper extremity is not warranted. Psychiatric Disorder A finally decided claim may be reopened if the claimant presents new and material evidence with respect to a claim which has been previously denied and which is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. If the claim is so reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). "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); but cf. Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that regulations do not require new and material evidence as to each previously unproven element of a claim). An October 1995 rating decision denied the Veteran's original claim for service connection for mental condition on the basis that the service treatment records were negative for complaint of or treatment for the identified mental condition. Although notified of this decision by the RO in the same month, the Veteran did not file an appeal of this issue, and the October 1995 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.200 (2012). Because the October 1995 rating decision is the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). In this case, in its April 2005 rating decision, the RO reopened the Veteran's claim of service connection for a psychiatric disorder and denied the claim on the merit without first discussing whether new and material evidence has been submitted. Such a decision, however, is not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). Evidence received since the October 1995 rating decision includes VA treatments records, dated from February 1996 to July 2012; VA psychiatric examination reports dated in November 1996 and March 2006; and a June 2008 letter the Veteran's primary care physician, Dr. N.C. All of the evidence received since the October 1995 rating decision is "new" in that it was not of record at the time of the October 1995 rating decision. Furthermore, the VA treatment records now show diagnoses of PTSD. In March 2006, the Veteran's VA psychiatrist, Dr. K.K., stated that the Veteran and she discussed for the first time in years some of the traumatic events that the Veteran experienced while in combat in Vietnam. The Veteran reported that he came under direct fire from the Viet Cong and recollected one event that was quite terrifying for him. Based on the reported history, the diagnosis was possible PTSD. Subsequent VA psychiatric treatment records show diagnoses of PTSD. Thus, the evidence received since the October 1995 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a psychiatric disorder, specifically PTSD. Therefore, the evidence raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R § 3.156(a). As such, the Veteran's claim of entitlement to service connection for a psychiatric disorder is reopened. ORDER Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the right upper extremity is denied. New and material evidence having been submitted to reopen the claim of service connection for a psychiatric disorder, the claim is reopened, and to this extent only, the appeal is granted. REMAND During the pendency of this appeal, effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 38 C.F.R. § 3.304(f) was amended to redesignate former paragraphs (f) (3) and (f) (4) as paragraphs (f) (4) and (f) (5), respectively, and by adding a new paragraph (f) (3) that reads: (f)(3) If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Board observes that the primary effect of the amendment of 38 C.F.R. § 3.304(f)(3) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA or VA-contracted psychiatrist or psychologist. In this case, the Veteran claims stressors involving his Vietnam service while aboard U.S.S. TOM GREEN COUNTY. Specifically, he contends that when his ship was in the MeKong Delta and he was ascending stairs, he almost lost his foot when a rocket came through the commander's room, only two inches from his foot. He also contends that although he did not come in direct fire or get injured, he experienced firing on the shore when his ship was in the river in the Mekong Delta and they were fired upon by enemy in small boats. The Veteran's service in the Republic of Vietnam has been conceded in this case. As the Veteran's claimed stressors relate to his fear of hostile military activity, if a VA psychiatrist or psychologist confirms that a claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressors, the claim must be granted in the absence of clear and convincing evidence to the contrary. Although the Veteran was afforded a VA examination in March 2006 and the VA examiner reported that the Veteran did not meet the criteria for a diagnosis of PTSD, subsequent medical evidence of record includes diagnoses of PTSD. Specifically, VA treatment reports noted diagnoses of PTSD by the Veteran's long-time psychiatrist, Dr. K.K. since 2006. Furthermore, because the scope of this claim is expanded herein to include psychiatric disorders other than PTSD, the Board finds that a remand is required to obtain a medical opinion as to whether any degree of the Veteran's currently diagnosed psychiatric disorder, to include major depression, mood disorder or bipolar disorder, as well as PTSD, is related to his military service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Finally, the issue of an effective date prior to September 27, 2007, for the award of service connection for peripheral neuropathy of the bilateral lower extremities must be remanded for issuance of a statement of the case. Concerning this, the Board observes that in a December 2009 rating decision, the RO granted service connection for peripheral neuropathy of the left and right lower extremities, effective September 27, 2007. This was a complete grant with regard to the Veteran's claims of service connection for peripheral neuropathy of the bilateral lower extremities. However, in a December 2009 supplemental statement of the case, the RO adjudicated a new claim of entitlement to an earlier effective date for the award of service connection for peripheral neuropathy of the bilateral lower extremities that was not pending at that time. The Board also observes that the RO incorrectly listed the effective date as December 6, 2007, instead of September 27, 2007. However, in response to the December 2009 supplemental statement of the case, the Veteran appealed in August 2012 the issue of entitlement to an effective date prior to September 27, 2007 for the award of service connection for peripheral neuropathy of the bilateral lower extremities. Although the Veteran expressed his disagreement in a VA Form-9, this, at best, constitutes a notice of disagreement to the RO's December 2009 supplemental statement of the case. See 38 C.F.R. §§ 20.201, 20.302 (2011). When a notice of disagreement has been filed, the RO must issue a statement of the case, and therefore a remand is required for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). Accordingly, the case is remanded for the following actions: 1. The RO must request that the Veteran identify all VA and non-VA medical providers who have treated him for psychiatric disorder. The RO must then obtain copies of the related medical records that are not already in the claims file. Regardless of his response, the RO must obtain and associate with the claims file all updated VA treatment records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA psychiatric examination to determine the existence and etiology of any psychiatric disorder found, to include PTSD. The claims file and all records on Virtual VA must be made available to an appropriate examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Thereafter, based upon review of the service and post-service medical records, and consideration of the Veteran's statements, the examiner must provide an opinion as to whether any psychiatric disorder is related to the Veteran's military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria of the Diagnostic and Statistical Manual for Mental Disorders are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the stressors. If PTSD is found to be related to an in-service stressor, the examiner must specifically state whether that stressor was related to the Veteran's fear of hostile military or terrorist activity. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain how the diagnostic criteria for PTSD of the Diagnostic and Statistical Manual for Mental Disorders have not been met. In rendering the diagnosis, the VA examiner must take into account and attempt to reconcile other medical psychiatric diagnoses of record, specifically, the diagnosis of PTSD made by the Veteran's VA psychiatrist, Dr. K.K. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. If an additional examination is necessary to provide the requested opinions, one must be scheduled. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The medical opinion report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for a psychiatric disorder must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. The RO must also issue a statement of the case, as well as notification of the Veteran's appellate rights on the claim of entitlement to an effective date prior to September 27, 2007, for the award of service connection for peripheral neuropathy of the bilateral lower extremities. 38 C.F.R. § 19.26 (2012). The Veteran and his representative are reminded that to vest the Board with jurisdiction over the issue of entitlement to an effective date prior to September 27, 2007, for the award of service connection for peripheral neuropathy of the bilateral lower extremities, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2012). If the Veteran perfects the appeal as to this issue, the claim must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs