Citation Nr: 1303379 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 05-39 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to a service-connected lumbar spine disability. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected lumbar spine disability. 3. Entitlement to service connection for psychiatric condition, to include posttraumatic stress disorder (PTSD), to include as secondary to a service-connected lumbar spine disability. 4. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a bladder disorder, to include as secondary to a service-connected lumbar spine disability, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing at the RO in Columbia, South Carolina in July 2008. This transcript has been associated with the file. The case was before the Board in October 2008 and May 2011, and remanded to allow the RO to further assist the Veteran in the development of his appeal, to include obtaining treatment records and VA medical opinions. The Veteran's most recent VA treatment records were obtained and associated with the claims file. In June 2011 the RO requested the Veteran complete an authorization form for any private treatment providers. The Veteran did not indicate there were any additional outstanding private treatment records. VA examiners each offered an opinion as to the etiology of the Veteran's psychiatric condition in August 2011 and July 2012. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran originally filed a claim seeking entitlement to service connection for a depressive disorder, and as secondary to his service-connected lumbar spine disability. See e.g., July 2008 Board hearing transcript. The medical evidence indicates treatment and diagnoses for PTSD as well as other psychiatric conditions, such as depression. The U.S. Court of Appeals for Veterans Claims held in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. As will be discussed more thoroughly below, the record reasonably raises the issue of whether there are other mental disabilities that may be related to the Veteran's military service. Accordingly, the Veteran's psychiatric condition claim has been appropriately recharacterized above. The reopened claim for entitlement to service connection for a bladder disorder and the claims of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, erectile dysfunction, and depression are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a bladder disorder was denied in a March 1995 rating decision which the Veteran did not appeal. 2. Evidence associated with the claims file since March 1995 is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bladder disorder. CONCLUSION OF LAW Evidence received since the March 1995 rating decision that denied service connection for a bladder disorder, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the issue of whether new and material evidence has been received, since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence The Veteran contends that he has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for a bladder disorder and that service connection is warranted. Previously denied claims may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2012). 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decisionmakers, and "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. The 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is 'low.' Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran sought service connection for a bladder disorder which was denied in a March 1995 rating decision, and the Veteran was notified of the denial in that same month. The Veteran did not complete an appeal for this decision and the March 1995 RO decision is final. 38 U.S.C.A. §§ 7103, 7266. The Veteran filed his petition to reopen his claim in October 2003. At the time of the March 1995 denial, the evidence of record included VA treatment records, private treatment records, and the Veteran's personal statements. The RO denied the claim due to a lack of a nexus between an in-service injury or disease, or a service-connected disability, and the Veteran's current bladder disorder. The evidence received since the March 1995 rating decision includes private treatment records, VA examination reports, and the Veteran's testimony. Significantly, an August 2001 VA examination report linked the Veteran's bladder disorder to his lumbar spine disability. This evidence is new, as it was not previously of record at the time of the March 1995 rating decision. It is also material, particularly the Veteran's testimony that his bladder disorder has been linked to his lumbar spine disability, and the claim are reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for a bladder disorder is reopened; to this extent only, the appeal is granted. REMAND The Board has determined that new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a bladder disorder. The Board will consider whether service connection is warranted for peripheral neuropathy of the bilateral lower extremities, erectile dysfunction, a psychiatric disorder, and a bladder disorder, all as secondary to a service-connected lumbar spine disability. The Veteran has been afforded multiple medical examinations for the above claimed conditions. However, the examiners have not provided adequate opinions as to the etiology of the Veteran's peripheral neuropathy, erectile dysfunction, and bladder disorder. The examiners must determine if these conditions are related to his service-connected lumbar spine disability, or if they were caused by his January 1990 post-service lumbar spine injury. When it is not possible to separate the effects of a service-connected disability from a non-service-connected disability, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor, thus attributing such signs and symptoms to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (emphasis added). A VA mental disorders examination must be conducted to determine if the Veteran has a psychiatric condition, to include PTSD, that is related to service or a service-connected lumbar spine disability. The Veteran has claimed that he was assaulted in-service. See e.g., June 2002 VA treatment record. According to 38 C.F.R. § 3.304(f)(3), VA will not deny a PTSD claim that is based upon an in-service personal assault without first advising the Veteran that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and then allowing him the opportunity to furnish this type of evidence or to advise VA of the potential sources of such evidence. The Veteran has not been provided sufficient notice regarding the 'other types of evidence' that might verify his claimed physical assault stressor. In light of this notification error, this appeal must be remanded to provide such notice to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice which details the potential sources of evidence that might help to verify his claimed personal assault stressor. See 38 C.F.R. § 3.304(f)(3) (2012). The Veteran should also be informed that he should provide as much information as possible, including dates and places of events. 2. Schedule the Veteran for a VA examination(s) at an appropriate location to determine the etiology of his peripheral neuropathy of the bilateral extremities, erectile dysfunction, psychiatric condition, and bladder dysfunction. The following considerations will govern the examination: a. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. b. The examination report must reflect review of pertinent material in the claims folder. After reviewing the claims file and interviewing the Veteran, the examiner must state whether the Veteran's peripheral neuropathy of the bilateral lower extremities was caused or aggravated by his service-connected lumbar spine disability OR related to his post-service January 1990 injury. The examiner 's attention is called to the following: i. A January 1996 VA examination report where the examiner concluded he could not determine the etiology of the Veteran's peripheral neuropathy. ii. An August 2001 VA examination report linking the Veteran's peripheral neuropathy to diabetes. c. The examination report must reflect review of pertinent material in the claims folder. After reviewing the claims file and interviewing the Veteran, the examiner must state whether the Veteran's bladder disorder and erectile dysfunction were caused or aggravated by his service-connected lumbar spine disability OR related to his post-service January 1990 injury. The examiner's attention is called to the following: i. A December 1990 private treatment record opining the Veteran's bladder disorder and erectile dysfunction are related to his back injury. ii. An August 2001 VA examination report linking the Veteran's neurogenic bladder and erectile dysfunction to diabetes. d. The examination report must reflect review of pertinent material in the claims folder. After reviewing the claims file and interviewing the Veteran, the examiner must state whether the Veteran is diagnosed with any mental disorder; and if so, identify the disorder and: i. Whether the disorder is related to service, and ii. Whether the disorder was caused or aggravated by his service-connected lumbar spine disability OR by his post-service January 1990 injury. The examiner's attention is called to the following: i. An October 1990 private treatment record diagnosing the Veteran with adjustment disorder with depressed mood secondary to his physical condition. ii. A November 2000 VA examination report diagnosing the Veteran with conversion disorder which could have originated as early as 1969. iii. A June 2002 VA treatment record noting the Veteran's statements of experiencing a military sexual trauma. iv. A January 2003 VA treatment record diagnosing the Veteran with PTSD. v. A November 2003 VA physician's statement that the Veteran's back injury, incontinence, and erectile dysfunction contribute to his depressive episodes. vi. An August 2007 VA examination report noting the Veteran had multiple stressors which may have led to his major depressive disorder. e. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. If the examiner is unable to render an opinion without resort to speculation, he or she must explain why and so state. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After completing the above, and any other development deemed necessary, the RO should readjudicate the Veteran's claims. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is 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. 2011). ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs