Citation Nr: 1317561	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  07-18 408	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizophrenia.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia

3.  Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151, for a right knee disability.

4.  Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151, for a left foot disability.

5.  Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151, for a dental disability.



REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel


INTRODUCTION

The Veteran has qualifying active duty service with the United States Marine Corps from July 1967 to July 1971, to include a tour of duty in Vietnam.  His subsequent service, from February 1975 to October 1993, resulted in an Other Than Honorable (OTH) discharge and a bar to benefits based on that period of service.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Los Angeles, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought.

With regard to an acquired psychiatric disability, the April 2006 decision declined to reopen a previously denied claim of service connection for PSTD.  The April 2006 denial was itself a reconsideration of a September 2005 rating decision.  The Board notes that in January 2010, the RO issued a rating decision denying service connection for schizophrenia, which the Veteran has expressed disagreement with. A statement of the case (SOC) has been issued.  However, the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  His claims for PTSD and schizophrenia are therefore considered to be a single claim, and both are perfected on appeal.  The Board has recharacterized the matter accordingly.  

The issues involving entitlement under 38 U.S.C.A. § 1151 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.  Service connection for PTSD was most recently denied on the merits in an April 2000 Board decision, on the grounds that there was no verified stressor event in service or other evidence of a nexus to qualifying service.

2.  The RO declined to reopen a previously denied claim of service connection for PTSD in a June 2001 rating decision; the Veteran initiated, but did not perfect, an appeal of that decision.  Finality attached in June 2002.

3.  Evidence received since June 2001 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim.

4.  The Veteran failed to report for a necessary VA contract examination scheduled in connection with his reopened claim of service connection for an acquired psychiatric disorder.


CONCLUSIONS OF LAW

1.  The June 2001 decision denying service connection for PTSD is final.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160 (2012).

2.  The criteria for reopening the previously denied claim of service connection for an acquired psychiatric disorder are met.  38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012).

3.  The criteria for service connection for an acquired psychiatric disorder are not met.  38 C.F.R. § 3.655(b) (2102).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  With regard to the reopening of the previously denied claim of service connection for an acquired psychiatric disorder, the Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

With regard to the underlying merits of the service connection claim, the enumerated duties are not applicable, as the claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

New and Material

Rating actions from which an appeal is not timely perfected become final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  An appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  Reopening of the claim of service connection for PTSD was denied in a June 2001 decision.  The RO accepted an August 2002 statement as an NOD, despite it being filed outside the one year appeal period.  38 C.F.R. § 20.302.  The RO then issued an SOC on August 6, 2003; the Veteran had until October 6, 2003 to perfect his appeal.  38 C.F.R. § 20.302.  He did not do so, and hence the June 2001 decision became final.

A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).  

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).  

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).  

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).

Service connection for PTSD has been persistently denied on the merits based on findings that no verified stressor has been shown.  The June 2001 rating decision declined to reopen the claim because the Veteran had merely reiterated his previously considered allegations of stressful events, including specific rocket and mortar attacks, and the deaths of pilots for whom he served as a crew chief in Vietnam.  These allegations had been rejected as unconfirmed or unverifiable, or VA had found them to be not fully credible in light of variations and contradictions in the Veteran's statements.

However, effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity.  See Stressor Determinations for Posttraumatic Stress Disorder, Final Rule, 75 Fed. Reg. 39843 -01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3).  The amendment provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary.  The Supplementary Information in the announcement of the Final Rule indicated that "VA will not apply the rule to claims that were finally denied before the effective date of the rule unless new and material evidence is submitted," and "The change in the evidentiary standard for establishing occurrence of an in-service stressor would not constitute a basis on which to reopen a finally denied claim for service connection for PTSD because it is procedural in nature and does not effect a substantive change in the law governing service connection for disabilities."  75 Fed. Reg. at 39851.  

Further, VBA Training Letter 10-05 (July 16, 2010) provides: "To reopen a claim under new § 3.304(f)(3), VA will accept a Veteran's lay statement regarding an in-service stressor - 'fear of hostile military or terrorist activity' - as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to 'hostile military or terrorist activity.'  If review of the record discloses a previously submitted lay statement demonstrating 'fear of hostile military or terrorist activity,' such statement will be sufficient for reopening a claim if the Veteran's record otherwise demonstrates service in a location involving exposure to 'hostile military or terrorist activity.'"

Here, in connection with a previously denied claim of service connection for PTSD, the Veteran had submitted a December 1999 statement.  He argued then that regardless of whether any of his alleged stressor events, to include rocket and mortar attacks were actually verified, he was in a hostile environment, within range of such attacks, and "this in itself is a stressor."  The Board views this previously considered statement as an allegation of a stressor under the amended regulation, and hence finds that reopening of the claim is required.  38 C.F.R. § 3.304(f)(3); Training Letter 10-05 (July 16, 2010).

Service Connection

Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received.  This matter must now be addressed on a de novo basis.  Normally this would involve remand of the merits of the claim, to permit the Veteran an opportunity for the initial adjudication of the matter at the Agency of Original Jurisdiction.

Here, however, no remand is required.  "[W]hen the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of the...claim, this court has treated the question...as a matter of law that we are authorized by statute to address."  Texas Instruments, Inc. v. United States, 922 F.2d 810, 815 (Fed. Cir. 1990) (There is no need to remand a case to determine an issue "which legally [could] be decided in only one way" (citations and internal quotation marks omitted)).

The RO determined in February 2013 that a VA examination was required with regard to the Veteran's psychiatric claims.  Although no formal finding is reflected in the file, it appears the RO had elected to reopen the claim under the amended regulation at 38 C.F.R. § 3.304(f)(3), and recognized that a medical opinion was required to determine if any diagnosis was related to a fear of hostile enemy or terrorist activity during the Veteran's qualifying service, sufficient to be stressor event.  Such an opinion is required by the regulation. 

Accordingly, an examination was scheduled with a VA contract examiner.  The examination request listed the Veteran's current address (with his state-appointed guardian), and it is presumed that in the regular course of business the VA contractor contacted him at that address and informed him of the time and place of examination.  VA Adjudication Manual M21-1MR, III.iv.3.B.14.d; Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992); see also Sthele v. Principi, 19 Vet. App. 11, 17 (2004); Jones v. West, 12 Vet. App. 98, 100-102 (1998).  Moreover, even if VA for some unknown reason deviated from normal practice in this case, the Veteran and his guardian were notified of the failure in the April 2013 supplemental statement of the case, and of the consequences of such.  He did not, however, request rescheduling or offer any explanation of his failure.  No mail sent to the address used has been returned to VA as undeliverable.  Where a Veteran fails to report for a necessary examination in connection with a reopened claim, the claim "shall be denied."  38 C.F.R. § 3.655(b).  Therefore, the Board must deny the appeal based on the failure to report.

ORDER

New and material evidence having been received, the previously denied claim of service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, is reopened; to this extent only, the appeal is granted.

Service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, is denied.


REMAND

With regard to the claims for payment of compensation benefits under 38 U.S.C.A. § 1151, remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Benefits under 38 U.S.C.A. § 1151 are paid for disabilities which are treated "as if" service-connected.  Entitlement arises for qualifying additional disabilities which are incurred in the course of VA treatment, and result from "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of" VA or where the additional disability resulted from an event or circumstance which was not reasonably foreseeable.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.

The Veteran alleges that his current right knee, left foot, and dental conditions are worse than they would have been in the absence of past VA treatment.  A review of the record confirms that the Veteran did receive treatment in relation to each of the disabilities at some point in the past.

With regard to the right knee, VA records from 2003 verify that the Veteran was diagnosed with a torn medial meniscus, which predated his entry into a VA compensated work therapy (CWT) program as a patient escort.  In July 2003, he underwent surgery for the damage.  He now alleges that he experiences increased right knee problems as a result of his treatment, to include participation in the CWT program.

The Veteran underwent surgery for a left foot and ankle disability in February 1996.  The ankle joint was fused and several pins were placed to ameliorate the effects of nerve damage in the area.  The Veteran alleges that the surgery was not necessary, and that he now has increased pain as a result of the operation.

Regarding his allegations of a dental condition, the Veteran maintains that he is now prevented from receiving implanted dental prosthetics because there is insufficient bone in the jaw for placement of anchors.  He relates the bone loss to the June 1995 extraction of his teeth at a VA facility.  He had been receiving private treatment, but ran out of funds and sought VA assistance.  Due to the progression of decay, extraction was undertaken and the Veteran received dentures.  It is unclear if the dentures were supplied privately or by VA, but in the course of treatment, VA did propose some grinding to accommodate better fit.  
In all instances, the record shows a current disability, which the Veteran competently alleges is worsened, and VA treatment.  The possibility exists of a link between them.  


In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The threshold for determining a possibility of a nexus to service is a low one.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Because 38 U.S.C.A. § 1151 benefits are treated "as if" service-connected compensation, the 38 U.S.C. § 5103A(d) standard applies.  Trafter v. Shinseki, No. 10-3605 (Vet. App. Apr. 29, 2013)

No VA examinations have been provided here with regard to any of the Veteran's 38 U.S.C.A. § 1151 claims, though they are required.  Further, an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Findings by the RO that current manifestations represent "natural progression" improperly intrude on the medical arena.  Remand for provision of appropriate examinations, with medical opinions by qualified medical professionals, is therefore required.

Updated treatment records may be relevant to the claims, as they can establish the present severity of any current disability.  It is unclear if the Veteran is receiving VA and/or private treatment for any of the claimed conditions.  He must be contacted to determine the existence and identity of any care providers, and then steps must be taken to secure records of such.
Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and ask that he identify all care providers, both VA and private, who have treated him for right knee, left foot/ankle, and dental conditions since 2010.  

Request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for all private providers.  Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete records.  The Veteran should be informed that in the alternative, he may obtain and submit the records himself.

Further, ensure that complete, updated VA treatment records are associated with the claims file, from the VA medical center in West Los Angeles, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of February 2011 to the present.

2.  Schedule the Veteran for a VA joints examination.  The claims folder must be reviewed in conjunction with the examination.

The examiner must describe the current status of the right knee and left foot/ankle disabilities.  The examiner must opine as to whether the current state of disability represents the natural progression of the underlying conditions, or was caused or aggravated by VA treatment (to include July 2003 knee and February 1996 foot surgeries).

If VA treatment played a causal role of any degree, the examiner must state whether there is any evidence of "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of" VA, or if any current manifestation was not reasonably foreseeable as a result of the VA treatment.

A full and complete rationale for any stated opinion is required.

3.  Schedule the Veteran for a VA dental examination.  The claims folder must be reviewed in conjunction with the examination.

The examiner must describe the current status of the Veteran's dental disabilities.  The examiner must opine as to whether the current state of disability represents the natural progression of the underlying condition(s), or was caused or aggravated by VA treatment (to include June 1995 extractions or subsequent denture fittings).

If VA treatment played a causal role of any degree, the examiner must state whether there is any evidence of "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of" VA, or if any current manifestation was not reasonably foreseeable as a result of the VA treatment.

A full and complete rationale for any stated opinion is required.

4.  Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated.  Then readjudicate the claims on appeal.  If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  

The appellant has the right to submit additional evidence and argument on the 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. 2012).




______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs