Citation Nr: 1328840 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-08 299A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression. 3. Entitlement to an increased evaluation for service-connected bronchial asthma, currently evaluated at 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to December 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the RO, which denied service connection for PTSD and continued the 30 percent disability rating for service-connected bronchial asthma. The Veteran was initially denied service connection for PTSD in an October 2002 rating decision, which he did not timely appeal. The RO continued the denial in September 2004 and in August 2009. The Veteran testified at a Travel Board hearing in August 2012 before the undersigned. A transcript of the hearing is associated with the case file. The Veteran waived RO consideration of the additional evidence submitted. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); 38 C.F.R. § 3.159(c)(3). In light of Brokowski and Clemons, as the Veteran is noted to have other diagnoses for psychiatric disorders in addition to PTSD, such as depression and bipolar disorder, the Board has recharacterized the claim as indicated on the title page. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, to include VA treatment records from 2008 to 2011 (some duplicates included), The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression; and an increased evaluation for service-connected bronchial asthma, currently evaluated at 30 percent 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. An unappealed October 2002 rating decision denied service connection for PTSD; the Veteran was notified of this decision and apprised of his appellate rights, but did not file a timely appeal. 2. The evidence received since the October 2002 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression. CONCLUSION OF LAW New and material evidence has been added to the record since the October 2002 decision to reopen the previously denied claim of service connection for PTSD. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, to the extent the action taken hereinbelow is favorable to the Veteran, further discussion of the VCAA is not necessary at this time. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Application to Reopen Generally, a claim which has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). The prior final decision denying service connection for PTSD was in October 2002 and was unappealed. The basis for the denial was because although the evidence showed a diagnosis of PTSD, there was no evidence to show that it was linked to a confirmed stressful event during service. The evidence of record at the time of the initial denial consisted of service treatment records, post-service VA treatment records, and the Veteran's contentions. In general, rating decisions that are not timely appealed are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). Moreover, there was no additional evidence or information received within one year of the issuance of the October 2002 rating decision that pertained to a psychiatric disorder. See 38 C.F.R. § 3.156(b). Therefore, the Board finds that the October 2002 rating decision became final. In September 2008, the Veteran submitted an application to reopen his claim. The pertinent evidence received since the October 2002 rating decision consists of extensive VA psychiatric treatment records, lay statements from the Veteran regarding specific details of his stressors, and importantly, a letter from his treating VA psychiatrist linking the Veteran's PTSD to his stressor. The Board does acknowledge that VA amended the regulations pertaining to PTSD during the pendency of the appeal. See 38 C.F.R. § 3.304(f)(3). However, 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 affect a substantive change in the law governing service connection for disabilities." Routen v. West, 142 F.3d 1434, 1440, 1442 (Fed.Cir.1998). Regardless, the Board finds that the evidence received since the October 2002 rating decision, particularly with respect to the VA psychiatrist's letter providing a positive nexus opinion, is neither cumulative nor redundant and relates to an unestablished fact necessary to substantiate the claim of service connection. Specifically, the additional evidence addresses a link between the Veteran's claimed stressor and his PTSD diagnosis. See 38 C.F.R. § 3.156(a). Thus, the Veteran's application to reopen his claim for service connection for PTSD is hereby granted and the reopened claim (as recharacterized on the title page) will be addressed in the Remand hereinbelow. ORDER As new and material evidence has been submitted to reopen the claim of service connection for an acquired psychiatric disorder, to include PTSD and depression, the appeal to this extent is allowed subject to further action as discussed hereinbelow. REMAND The reopened claim of service connection and the claim for increase must be remanded to the RO for further development prior to adjudication. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has contended that his current psychiatric disorders, including his claimed PTSD, are related to various stressful and traumatic events in service. Specifically, the Veteran claims the following stressors: (1) accidentally killing a pilot instead of a drone while he was aboard the USS Goldsborough and in charge of the missile launcher; (2) having his ship hit by a non-warhead dummy torpedo during training exercises with the Singapore Navy; (3) being delivered the head of a U.S. soldier while being stationed in the Philippines; (4) watching a fellow serviceman get electrocuted while performing his tasks; and (5) after a Russian warship caused a collision off of the coast of Africa in the Indian Ocean, almost causing the USS Goldsborough to sink, "general quarters" were called and the Veteran was stationed in launch and control for 41 days in combat-ready mode as he feared Russian attack and control over neighboring African countries. He was in fear for those 41 days. By way of history, the Veteran's service treatment records are negative for any complaints or diagnoses of psychiatric disorders. Post-service treatment records document various diagnoses of psychiatric disorders over the course of treatment from 1989 to 2011. Specifically, the Veteran complained of PTSD symptomatology since 1996. He again reported PTSD and depression symptoms in March 1989 and was referred for psychiatric evaluation at that time. The Veteran was also diagnosed with bipolar disorder in 2008. VA psychiatric treatment records beginning in 2001 indicate that the Veteran was diagnosed with depression, not otherwise specified (NOS) and PTSD. Among the symptoms reported were daily nightmares of killing, getting killed, or falling with occasional flashbacks and startled responses. A brief summary of his stressor as told to his treating physician at the time revealed that the Veteran spoke of being involved in an internal war with Russia at the time in the Indian Ocean while he was a missile technician in the Navy. He described this involvement as a combat situation. The Board concludes that a VA examination and medical opinion are necessary to determine whether the Veteran has a current psychiatric disorder, to include PTSD, bipolar disorder, and depression, and if so, whether such disorders are related to his military service. Moreover, as previously noted, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. However, the Veteran has not been provided the revised provisions of 38 C.F.R. § 3.304(f). Therefore, upon remand, the Veteran should be notified of the amended regulation, and the claim should be considered under those provisions. The Board finds that further development is necessary with respect to the issue of entitlement to an increased evaluation for service-connected bronchial asthma, currently rated at 30 percent. In September 2009, the Veteran contended that his asthma has worsened and requested an examination to assess the current level of severity. In July 2009, the Veteran underwent a VA examination where the VA examiner indicated that the Veteran is on a downhill course and will be on supplemental oxygen in the future. Pulmonary Function Tests (PFTs) were conducted at this time, and the Veteran's bronchial asthma was unchanged. In October 2009, the Veteran indicated that previous medications and breathing treatments are no longer successful in addressing his asthmatic condition, and he has to take steroids regularly to address his worsening symptoms. As a result, the Veteran was afforded a VA examination in November 2010 at which time the Veteran avers his lung condition is "about 25 percent worse now" with daily flare-ups of asthma. He reported only being able to walk about 40 feet before getting more short of breath. He reported using a nebulizer and an oxygen machine at home. The VA examiner indicated that PFTs were conducted and an impression was made based upon the results. However, the PFT records note that the Veteran was unable to perform the tests and thus the testing was technically inadequate without meaningful data. In April 2011, a VA notes that actual PFT results are required to make a rating of the issue. As such, the Board finds that based on the inadequacy of the previous November 2010 examination and based on the Veteran's contentions that his asthmatic condition has worsened, a new examination must be ordered to assess the current severity of his service-connected bronchial asthma. Contemporary examinations are required for accurate rating assessment. Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should take appropriate steps in order to request that the Veteran identify the names, addresses, and approximate dates of treatment for any VA and non-VA health care providers who have treated him for a psychiatric disorder or a respiratory disorder. After obtaining any necessary authorization from the Veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the Veteran in response to this request that are not already contained in the claims file. Any negative search result should be noted in the record and communicated to the Veteran. The RO should undertake appropriate development to obtain any outstanding medical records pertaining to treatment or examination of the Veteran for his service-connected asthma or any psychiatric condition. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any and all psychiatric disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should identify all current psychiatric disorders, to include whether the Veteran has bipolar disorder, depression, and PTSD. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not the disorder is causally or etiologically related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor or there is a stressor related to fear of hostile military or terrorist activity consistent with his service, the examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO should have the Veteran scheduled for a VA respiratory examination in order to determine the current nature and severity of the service-connected asthma. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including a pulmonary function test, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examining physician must provide pulmonary function test results. The examiner must also address the following: (a) Whether and how often the Veteran uses oral inhalational, bronchodilator or inhalational anti-inflammatory medication therapy (i.e., on a daily basis or less). (b) Whether and how often the Veteran requires physician care for exacerbations. (c) Whether and how often the Veteran requires use of oral or parenteral corticosteroids or immunosuppressive medications; and if such is used, whether or not such medications are considered "high dose." (d) Whether and how often the Veteran has asthma attacks with episodes of respiratory failure. A rationale for all opinions expressed should be provided. If the examiner cannot respond without resorting to speculation, she/he should explain why a response would be speculative. 4. After completing all indicated development, the RO should be readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. This SSOC should set forth the provisions of the amended version of 38 C.F.R. § 3.304. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs