Citation Nr: 1328476 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-22 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability. 3. Entitlement to service connection for a psychiatric disability. 4. Entitlement to service connection for headaches. 5. Entitlement to an increased rating for sarcoidosis with moderate restrictive lung disease, currently rated 30 percent disabling. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 7. Entitlement to an earlier effective date than October 21, 2009, for the grant of nonservice-connected pension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas and from a January 2010 rating decision by the RO in St. Paul, Minnesota. The issues of entitlement to an increased rating for sarcoidosis with moderate restrictive lung disease, entitlement to service connection for headaches, entitlement to service connection for a psychiatric disability, whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, and entitlement to a TDIU are REMANDED to the RO via the Appeals Management Center in Washington, D.C. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection for PTSD was last denied by a rating decision dated in November 2006. The Veteran did not appeal the denial. 2. The evidence received since the prior final rating decision is new and raises a reasonable possibility of substantiating the underlying claim of service connection for a psychiatric disability. 3. The Veteran first filed a claim of entitlement to nonservice-connected pension benefits in October 2009. 4. In a January 2010 rating decision, entitlement to nonservice-connected pension benefits was granted effective October 21, 2009. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for a psychiatric disability has been received. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for entitlement to an effective date earlier than October 21, 2009, for the grant of nonservice- connected pension have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran originally submitted a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) in December 2003. The claim was denied by the RO in a rating decision dated in April 2004. Notice of the denial and notice of appellate rights were provided in May 2004. The Veteran did not perfect an appeal of that decision and that decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). The Veteran submitted an application to reopen a claim of entitlement to service connection for PTSD in December 2005. The RO declined to reopen the claim of entitlement to service connection for PTSD in rating decisions dated in June 2006 and November 2006. Notice of the denial and notice of appellate rights were provided at those times. The Veteran did not perfect an appeal of either decision and the November 2006 decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). As a result, service connection for a psychiatric disability, to include PTSD, may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. 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) (2012). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). At the time of the prior final denial, the evidence before VA consisted of the Veteran's service medical records; VA outpatient treatment reports dated through October 2006; private treatment reports from various providers; VA examination reports dated in May 1982, May 1984, May 1986, May 1988, June 1990, and November 1991; and statements from the Veteran. The service medical records are negative for any complaints, findings, or treatment for any psychiatric disabilities. The VA outpatient treatment reports show treatment for various psychiatric disabilities including PTSD and depression. The private treatment reports from S. Afridi, M.D., show treatment for depression. Private treatment reports from B. Wheeler, M.D., J. Burks, M.D., and L. Paul, M.D., are unrelated to treatment for psychiatric disabilities. The VA examination reports dated in May 1982, May 1984, May 1986, May 1988, June 1990, and November 1991 do not include any objective findings related to any psychiatric disabilities. The Veteran reported depression at the November 1991 VA examination. The RO declined to reopen the claim for PTSD in the November 2006 rating decision because the evidence submitted by the Veteran was not new and material. The basis of the original denial of the claim in the April 2004 rating decision was that there was no diagnosis of PTSD. The Veteran submitted the current application to reopen his claim for service connection for PTSD in January 2009. Evidence associated with the claims file since the final prior denial consists of additional VA outpatient treatment reports, private treatment reports from Crossroads Pulmonary Diagnostic Clinic and Lab and Citizens Medical Center, a VA examination report dated in August 2009, and statements from the Veteran. Because the evidence received since the prior denial was not previously of record, and because it addresses specifically the issue before the Board, the Board finds that the new evidence is material. 38 C.F.R. § 3.156 (2012). Since the final prior denial, the Veteran has submitted evidence of treatment for various psychiatric disabilities. The Veteran has also submitted statements indicating that he has had psychiatric symptoms which began in service and have continued since that time. The Veteran is competent as a lay person to provide testimony regarding continuity of symptoms and self-treatment. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the evidence shows treatment for and diagnoses related to psychiatric disabilities and the broadened scope of the claim means that service connection for those psychiatric disabilities must be considered. Consequently, the Board concludes that the evidence is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim of service connection for a psychiatric disability, including PTSD and depression is reopened. To that extent only, the claim is allowed. The claim will be remanded for additional development. Earlier Effective Date The Veteran filed a claim of entitlement to nonservice- connected person benefits in October 2009. The claim was granted in a January 2010 rating decision effective October 21, 2009, the date the claim was received by the RO. The Veteran argues that he is entitled to an effective date prior to October 21, 2009, for the grant of entitlement to nonservice-connected pension benefits. Where disability pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim unless the Veteran specifically claims entitlement to retroactive benefits. The claim for retroactivity may be filed separately or included in the claim for disability pension, but it must be received by VA within one year from the date on which the Veteran became permanently and totally disabled. 38 C.F.R. § 3.151(b) (2012). If within one year from the date on which the Veteran became permanently and totally disabled, he files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of his willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which he became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which he became permanently and totally disabled, whichever is to his advantage. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented filing the claim. 38 C.F.R. § 3.400(b)(1)(ii)(B) (2012). A claim is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). Review of the record shows that the earliest document that can be construed as either a formal or informal claim of entitlement to nonservice-connected pension benefits was received by the RO on October 21, 2009. That is the earliest date from which the Veteran's claim for nonservice- connected pension benefits can be granted. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). In addition, the Veteran did not file a specific claim seeking retroactive benefits. Even if he had filed a claim specifically seeking retroactive benefits, the Veteran has not submitted evidence to show that within one year from the date on which the Veteran became permanently and totally disabled, he filed a claim for a retroactive award and established that a physical or mental disability, which was not the result of his willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which he became permanently and totally disabled, There is no evidence of record indicating that the Veteran was incapacitated and unable to file a claim. Therefore, the Board finds that an effective date earlier than October 21, 2009, is not warranted under applicable law and regulation. In summary, the Board finds that the criteria for the assignment an effective date earlier than October 21, 2009, for the grant of nonservice-connected pension benefits are not met. In essence, the Board believes that this is a case in which the law and not the evidence is dispositive, and thus, that the appeal must be terminated because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has considered whether the notice provisions are applicable to this claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004) (VA not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). In addition, the Board notes that the claim for nonservice-connected pension was granted. Therefore, the claim was substantiated. The Veteran was notified of the required information, including the criteria for establishing effective dates. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Accordingly, the Board finds that the duties to notify and assist were met. ORDER The claim of entitlement to service connection for a psychiatric disorder, including PTSD and depression is reopened. To that extent only, the appeal is granted. Entitlement to an earlier effective date for the grant of nonservice-connected pension is denied. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the remaining claims can be reached. With regard to the claim for an increased rating for sarcoidosis, the Veteran was last provided a VA examination to assess the disability in August 2009, over four years ago. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate rating of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Veteran's last VA examination is stale. The Veteran's service- connected disability may have worsened since the date of the last examination. In order to properly adjudicate the increased rating claim, another examination should be scheduled. With regard to the claim for service connection for psychiatric disabilities, the Veteran should be afforded a VA examination to determine the etiology of any diagnosed psychiatric disabilities. With regard to the claim for service connection for headaches, the Veteran claims that he had headaches in service and has had headaches since that time. In initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded a VA examination to determine the etiology of his claimed headache disability. A VA examination should be obtained in order to ascertain the etiology of the claimed headache disability. Associated with the claims file is a letter from the Social Security Administration (SSA) dated in December 2006 which indicates that the Veteran was determined to be disabled by SSA. No records used by the SSA to render the determination were associated with the claims file. As VA's duty to assist extends to obtaining SSA records where they may be relevant to the issues under consideration, remand is required to obtain the Veteran's SSA records. Murinscak v. Derwinski, 2 Vet. App. 363 (1992). The claim to reopen a claim for service connection for diabetes mellitus, and the other claims being remanded, cannot be adjudicated until the SSA records are obtained and must be remanded. Additionally, VA outpatient treatment reports dated through July 2012 are associated with the Virtual VA claims file. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claims, an attempt to obtain outstanding VA records should be made. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The claim for TDIU is inextricably intertwined with the other pending claims for service connection and increased ratings. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Obtain the Veteran's VA treatment reports dated since July 2012. 2. Obtain any determinations rendered by the SSA and the medical records used to render those decisions. Make as many requests as are necessary to obtain the SSA records and unless it is determined that the records sought do not exist or that further efforts to obtain the records would be futile. If, after all procedurally appropriate actions to locate and secure the SSA records have been made and that further efforts to obtain the SSA records would be futile, make a formal finding to that effect. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected sarcoidosis. The examiner must review the claims file and should note that review in the report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies, to include pulmonary function tests, must be conducted by the examiner to properly evaluate the Veteran's service-connected sarcoidosis. Following the examination and a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must record pertinent medical complaints, symptoms, and clinical findings, and comment on the extent to which the Veteran's service-connected sarcoidosis is manifested by chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment; pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids; pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control; or cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. 4. Schedule the Veteran for a VA mental disorders examination. The examiner must review the claims file and must note that review in the report. The report of examination should include a complete rationale for all opinions expressed. Any necessary tests, including psychiatric testing, if appropriate, should be obtained. The examiner should provide the following information: a.) Provide a full multiaxial diagnosis pursuant to DSM-IV. Specifically state whether or not each criterion for a diagnosis of PTSD is met. b.) If a diagnosis of PTSD is appropriate, comment upon the link between the current symptomatology and any in-service stressor reported by the Veteran and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's active service. c.) With regard to the diagnosed psychiatric disorders of record, including depression, the examiner should specifically state whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability is related to the Veteran's active service. The examiner must consider the Veteran's statements regarding continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 5. Schedule the Veteran for a VA examination for the claimed headache disability. The examiner should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible. The examiner must review the claims file and note that review in the report. In addition to the service medical records which show treatment for headaches, the examiner should consider the Veteran's statements regarding his symptoms in service and his statements of continuous symptoms of headaches since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should provide a diagnosis for the Veteran's claimed headache disability and opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed headache disability began during, is due to, or was caused by the Veteran's active service. 6. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs