Citation Nr: 1321968 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-43 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for osteoarthritis. 2. Entitlement to service connection for prostate disorder. 3. Entitlement to service connection for eye disorder. 4. Entitlement to service connection for foot disorder. 5. Whether new and material evidence has been received to reopen the claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for gastroesophageal reflux disease (GERD). 8. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Lawrence Kibler, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to August 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2008, a statement of the case was issued in October 2009, and a substantive appeal was received in November 2009. The Veteran and his spouse presented testimony at a Board hearing in October 2012, and a transcript of the hearing is associated with his claims folder. At the hearing, evidence was received with a waiver of initial RO consideration of it. The Board has described the underlying issue as one of service connection for a psychiatric disability, to include PTSD, in recognition of the judicial guidance offered in Clemons v. Shinseki, 23 Vet.App. 1 (2009). Specifically, that decision noted that although a claimant may describe only one particular mental disorder in a service connection claim, the claim should not necessarily be limited to that disorder. The issues of service connection for a psychiatric disorder, to include PTSD (under a merits analysis), as well as service connection for hypertension and for GERD, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. Osteoarthritis or degenerative joint disease was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 2. The Veteran does not have a current prostate disorder. 3. The Veteran does not have a current eye disorder. 4. The Veteran does not have a current foot disorder. 5. The RO denied service connection for PTSD in September 2005 and notified the Veteran of its decision in October 2005. The Veteran did not appeal, nor was new and material evidence received within one year of notification of the determination. 6. Since the final September 2005 decision, certain evidence relating to unestablished facts necessary to substantiate the claim which is neither cumulative nor redundant of evidence previously considered has been received to reopen the claim for service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoarthritis or degenerative joint disease are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for prostate disorder are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for eye disorder are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for service connection for foot disorder are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 5. The September 2005 RO decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 6. The criteria to reopen the claim for service connection for a psychiatric disorder, to include PTSD, based on new and material evidence are met. 38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In this decision, the Board reopens the Veteran's claim for service connection for a psychiatric disorder, to include PTSD, and remands it to the RO. Thus, a discussion of VA's duties to notify and assist is not necessary with respect to the issue at this time. With regard to the issues of service connection for prostate disability, for eye disability, and for foot disability, the provisions of VCAA must be considered before the Board may proceed with a merits analysis. Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in November 2007. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran the opportunity to give testimony before the Board. With regard to osteoarthritis, there is no indication that the Veteran suffered an event, injury, or disease in service or had their symptoms manifesting during the 1-year presumptive period for them. Regarding prostate, eye, and foot disorders, there is no competent evidence of a current diagnosed disability or of persistent or recurrent symptoms of disability. Accordingly, no VA examinations are necessary for these claims. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Service connection law The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as a cardiovascular-renal disease, including hypertension, and arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD, in particular, requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM- IV). Id.; see also 38 C.F.R. § 4.125 (2012). There is a recent amendment to 38 C.F.R. § 3.304(f) that does not require corroboration of a stressor if it is related to a Veteran's fear of hostile military or terrorist activity. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002). Applicable 38 C.F.R. § 3.156 provides that 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. The Court has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is not bound by an RO determination that new and material evidence has not been received and makes an independent determination in this regard. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board bases its decision on all the evidence of record. No relevant evidence is currently found in Virtual VA (VA's electronic data storage system). Arthritis, prostate, eye, foot Service treatment records are silent for reference to joint, prostate, eye, and foot problems, and the Veteran's July 1964 service discharge examination was normal. Service treatment records from post-service are similarly silent and/or normal, through February 1976, except for a May 1968 service treatment record which reports a right foot and ankle problem since the prior Friday, and which shows a ligament injury to the right foot. On VA evaluation in January 2006, problems reported included degenerative joint disease/osteoarthritis of the ankles, wrists, and hips. The Veteran denied eye problems. Degenerative joint disease, and an elevated PSA test result were found at that time. The prostate was normal. It appears that the Veteran has osteoarthritis or degenerative joint disease at this time. However, this was shown in service or manifest to a degree of 10 percent within 1 year of separation, no evidence relates it to service, and continuity since service is not alleged by the Veteran or otherwise demonstrated by the evidence. Accordingly, service connection is not warranted for osteoarthritis/degenerative joint disease. Regarding prostate, eye, and foot disorders, none are shown currently. An elevated prostate test result is not a disorder, and no eye or foot disorders are shown. The medical evidence does not show these disorders, and it does not even appear that the Veteran has advance pertinent contentions. To the contrary, the Veteran denied eye problems on January 2006 VA evaluation. Since the evidence shows no current prostate, eye, or foot disorder, service connection cannot be granted for prostate, eye, or foot disorder. The Court has held that in the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). PTSD The RO denied service connection for PTSD in September 2005, and the Veteran was notified of this decision and of his appellate rights by a letter dated in October 2005. He did not appeal. No additional evidence was received within one year of notification of the determination. Thus, the September 2005 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The RO's denial of the claim was on the basis that there was no established diagnosis of PTSD nor any confirmed PTSD stressors. Certain evidence submitted since the last final denial of service connection for PTSD in September 2005 is sufficient to reopen the claim. Previously, there was no diagnosis of a psychiatric disorder of record, there was no corroborated stressor of record (or evidence that the Veteran served in combat), and there was no nexus shown between any psychiatric disorder and service. Since that time, medical evidence has been submitted which indicates that the Veteran may have PTSD which may be related to military sexual trauma. He gave details of military sexual trauma to a VA health care provider in January 2008, and in April 2008, PTSD was diagnosed, with sexual trauma listed on Axis IV. Moreover, N.T. has submitted a February 2010 statement tending to corroborate the Veteran's February 2008 and more recent assertions that he was sexually assaulted in service. The Board finds that evidence relating to unestablished facts which is necessary to substantiate the Veteran's claim and which is neither cumulative nor redundant has been received. In sum, new and material evidence has been received to reopen the claim for service connection for a psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Further action will be taken with respect to this claim on remand below. ORDER Service connection for osteoarthritis is denied. Service connection for prostate disorder is denied. Service connection for eye disorder is denied. Service connection for foot disorder is denied. New and material evidence has been received to reopen the claim of service connection psychiatric disorder, to include PTSD. To this extent, the appeal is granted, subject to the directives set forth in the following remand section of this decision. REMAND The Veteran seeks service connection for psychiatric disorder which he feels is PTSD, and which he feels is due to a sexual assault which occurred while he was in service in the Fall of 1960 There are VA medical records contained in the claims folder. Some suggest that he has PTSD, and others suggest that he has no acquired psychiatric disorder. A diagnosis of a current psychiatric disorder under DSM-IV is necessary for a grant of service connection. Accordingly, a VA psychiatric examination should be conducted to determine what psychiatric diagnosis or diagnoses are appropriate under DSM-IV, and whether any such current psychiatric disorder is related to the in-service sexual assault which is to be assumed to have occurred in the Fall of 1960. This is necessary under 38 C.F.R. § 3.159. If service connection is granted for a psychiatric disorder, the Veteran should be examined for hypertension, and an opinion with reasons as to whether it has been caused, or aggravated, by that psychiatric disorder, should be rendered, as the Veteran's representative indicated in March 2010 that the Veteran is claiming service connection for hypertension as secondary to PTSD. This would be necessary under 38 C.F.R. § 3.159. Furthermore, the Veteran should be provided with VCAA notice regarding secondary service connection. Service treatment records show treatment for acute gastroenteritis in January 1961 and for heartburn in February 1964. The Veteran was normal on July 1964 service discharge examination, and on service examinations in March 1969, May 1968, September 1975, February 1976, and July 1996. He reported no pertinent problems when asked on reports of medical history during this period and he reported being in good health and on no medications in September 1975 and July 1996. VA treatment for GERD is shown in 2007, and on VA examination in July 2008, the Veteran reported a hiatal hernia and nervous stomach in the past, and then being diagnosed with GERD in 2001 and being started on Prilosec at that time. In February 2010, the Veteran reported post-service symptomatology and treatment, starting within a year after service. During his October 2012 hearing, he testified that he had had continued problems after service, and that he had taken over-the-counter medications for them. No specific attempts have been made to obtain the records of treatment which he received, including from when he was reportedly diagnosed with GERD in 2001. An attempt to obtain all available records of treatment the Veteran received for GERD prior to 2007 will be made, as those records may be helpful to his claim. Thereafter, a VA examination should be conducted, as one is necessary under 38 C.F.R. § 3.159. The examiner in July 2008 did not review the claims folder, and perhaps because this is so and due to the absence of records being sought in this remand, stated that he could not render a nexus opinion without resorting to speculation. Appellate adjudication of the issue of entitlement to TDIU is deferred until after the above development is completed, as the Veteran indicated in February 2008 that he is unemployable due to PTSD. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with the notice regarding secondary service connection in connection with his claim for service connection for hypertension. Make arrangements to obtain all available medical records of treatment which the Veteran received for GERD prior to 2007, including the report diagnosing GERD in 2001. 2. After record development is completed, the Veteran should be scheduled for an appropriate VA examination with regard to his claim for service connection for GERD. It is imperative that the claims file and a copy of this remand be made available to the examiner for review in connection with the examination. If GERD is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the GERD is causally related to the Veteran's service, to include symptoms documented in service treatment records. The examiner should furnish reasons for the opinion. 3. The Veteran should also be scheduled for a VA psychiatric examination with regard to his claim for service connection for a psychiatric disorder, to include PTSD. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All current psychiatric disorders diagnosed under DSM-IV should be clearly reported. The examiner should offer responses to the following: a) are there indications of behavioral changes during the Veteran's service which suggest that the claimed personal assault occurred? b) is a diagnosis of PTSD warranted? If so, is it at least as likely as not (a 50% or higher degree of probability) that the PTSD is related to an inservice stressor? c) as to any other acquired psychiatric disability found on examination, is it at least as likely as not (a 50% or higher degree of probability) that such disorder is causally related to the Veteran's active duty service? The examiner should furnish reasons for the opinion. 4. If the VA psychiatric examiner renders an opinion that any current psychiatric disorder is at least as likely as not (a probability of at least 50 percent) related to service, a VA examination for the Veteran's hypertension should be scheduled. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's current hypertension is proximately due to the psychiatric disorder which was found to be related to service. b) Is it at least as likely as not (a 50% or higher degree of probability) that his current hypertension has been aggravated by the psychiatric disorder which was found to be related to service? The examiner should furnish reasons for the opinion. 5. Thereafter, the RO should review the expanded record and undertake a merits analysis of the claim for service connection for a psychiatric disorder to include PTSD, as well as a merits analysis of the claims for service connection for hypertension and for GERD, and for a TDIU. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate 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. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs