Citation Nr: 1331426	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-35 370	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

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

2.  Entitlement to service connection for mesothelioma, claimed as due to asbestos exposure in service.  

3.  Entitlement to service connection for gastroesophageal reflux disease (GERD).

4.  Entitlement to service connection for neuropathy of both lower extremities.

5.  Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus.

6.  Entitlement to service connection for an eye disability, to include cataracts, claimed as secondary to diabetes mellitus.

7.  Entitlement to a rating in excess of 20 percent for diabetes mellitus.

8.  Whether the Veteran is competent for the purpose of direct receipt of VA compensation benefits.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The appellant is the conservator of a Veteran who served on active duty from November 1978 to December 1981 (and was found to be incompetent to manage his own financial affairs).  This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2009, August 2010, and July 2011 rating decisions of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO).  In a February 2011 VA Form 9 (Substantive Appeal) the Veteran requested a hearing before the Board.  In a statement received in February 2013, he withdrew the hearing request.  

[Regarding the Veteran's application to reopen a claim of service connection for PTSD, the Board observes that the Veteran has established service connection for schizophrenia, which is rated 100 percent disabling.  Because PTSD is rated under the same criteria as schizophrenia (and because a governing regulation, 38 C.F.R. § 4.14, prohibits pyramiding), no monetary benefit would flow from an award of service connection for PTSD at this time.  Nonetheless, the Veteran is entitled to establish service connection for the specific psychiatric diagnosis of PTSD, if warranted.  Therefore, the appeal in the matter is not being dismissed as moot.]  

All issues other than that of whether new and material evidence has been received to reopen a claim of service connection for PTSD are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran and his conservator if further action on his part is required.


FINDINGS OF FACT

1.  An October 1999 rating decision denied the Veteran service connection for PTSD based essentially findings that there was not diagnosis of PTSD and no credible evidence supporting an underlying stressor event in service; he did not appeal that decision (or submit  new and material evidence within a year thereafter).  

2.  Evidence received since the October 1999 decision includes new allegations of a "fear of hostile military or terrorist activity" during service which under 38 C.F.R. §  3.304(f)  may constitute a stressor event underlying a diagnosis of PTSD; relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating such claim. 


CONCLUSION OF LAW

The October 1999 rating decision is final; however, new and material evidence has been received, and the claim of service connection for PTSD may be reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  It applies to the claim to reopen.  However, there is no need to belabor the impact of the VCAA on the matter as any notice or duty to assist omission is harmless.

Legal Criteria, Factual Background, Analysis 

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. §§ 5108, 7105. 

"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(a). 

The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement.  Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).
When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).  In Vargas-Gonzales v. West, 12 Vet. App. 321, 327 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material.  If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. 

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. 1131; 38 C.F.R. § 3.303.  In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f). 

Effective July 12, 2010, 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.  Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and adding a new paragraph (f)(3) that states:
If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire; including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

The provisions of this amendment apply to the instant claim as it was filed in January 2010 and has been pending since.  

VA's guidelines for applying the revised 38 C.F.R. § 3.304(f) in a claim to reopen provide that it will accept a Veteran's lay statement regarding an in-service stressor-related- "fear of hostile military or terrorist activity" - as sufficient to constitute new and material evidence sufficient to reopen the previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to "hostile military or terrorist activity."  (emphasis added).  If review of the record discloses a previously submitted lay statement demonstrating "fear of hostile military or terrorist activity," such statement will also be sufficient for reopening a claim if the Veteran's record otherwise shows service in a location involving exposure to "hostile military or terrorist activity."  See VBA Training Letter No. 10-05 (July 16, 2010).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. §  5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA" (which at this time contains no pertinent evidence or information), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 

In May 1982, the Veteran was awarded service connection for schizophrenia (which, as noted above, is rated 100 percent disabling)..
 
An October 1999 rating decision denied the Veteran's claim of service connection for PTSD, essentially on findings that he did not have a diagnosis of PTSD; and that there was no credible supporting evidence of a stressor event in service.  He did not appeal that decision (or submit new and material evidence within a year following), and it is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  

The record in October 1999 included the Veteran's DD Form 214 which shows that he served in the Navy, with 1 year, 1 month, and 6 days of sea service.  Service personnel records show that he served aboard the U.S.S. LEXINGTON (AVT 16) from October 1979 to June 1980, and aboard the U.S.S. GUAM (LPH-9) from February  to December 1981. 

In connection with his claim to reopen, in January 2010 the Veteran related that he served on a Navy vessel that was involved in the Iran hostage crisis.  He reported that he was serving on the U.S.S. GUAM (a helicopter carrier) when it provided support for a failed attempt to rescue the hostages.  In February 2010 he indicated that the alleged events occurred in May 1980, and that casualties for the rescue attempt were brought aboard the ship.  He also described reports of imminent hostilities, and training for a missile attack; which he found overwhelming.  [Research on the internet found that a failed mission (such as he describes), Operation Eagle Claw, apparently took place in April 1980.]   

The Veteran's new assertions that he was overwhelmed by the threat of hostilities and a fear of his ship being hit by a missile during the Iran missile crisis (a known historical event) constitute, allegations of fear of hostile military or terrorist activity.  For purposes of reopening, they are deemed credible.  Under VA's guidelines for applying the revised 38 C.F.R. § 3.304(f)(outlined above), they are new And material evidence sufficient to reopen his claim of service connection for PTSD.  Accordingly, the claim of service connection for PTSD may be reopened.


ORDER

The appeal to reopen a claim of service connection for PTSD is granted.



REMAND

While the notice provisions of the VCAA appear to be satisfied, the Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims.  See 38 C.F.R. § 3.159.

For an informed decision on a claim, it is necessary to have assembled all information and evidence pertinent to such claim.  In a service connection claim, this includes a complete record/history of the disability; in a claim for increase it includes all evidence pertaining to the degree of disability.  

Regarding de novo review of the claim of service connection for PTSD it is noteworthy initially that the Veteran's accounts were presumed credible for purposes of reopening.  However, there are apparent inconsistencies between those accounts and data in official records which place the credibility of the accounts in question.  Specifically, he has alleged he was serving on the helicopter carrier U.S.S. Guam when is provided support for a failed hostage rescue attempt (and this placed him in circumstances consistent with a fear of hostile action/terrorist activity).  However, his service personnel records reflect that his service on the U.S.S. Guam was not until June 1980, and internet research found that the failed hostage rescue attempt took place in April 1980.  (He related the event took place in May 1980.)  His accounts must be reconciled with official records.  Furthermore, if he is found to have served in circumstances consistent with such, a psychiatric evaluation to determine whether or not he has a diagnosis of PTSD based on a fear of hostile enemy/terrorist activity would be necessary.  
 
Furthermore, in April 2011, a VA examiner indicated that she reviewed VA's Computerized Patient Record System (CPRS), and that found that the Veteran had GERD diagnosed in 2004.  A review of the Veteran's claims file and Virtual VA (VA's electronic data storage system) did not find a 2004 VA medical record with a diagnosis of GERD cited.  Regarding the claim of service connection for a mesothelioma, a December 2009 VA medical record shows that a chest X-ray was obtained to rule out pneumonia.  It was noted that there had been a prior chest X-ray on December 3, 2009.  The complete records of treatment at that time are not associated with the record (including Virtual VA); there are no corresponding treatment records showing December 3, 2009 chest X-ray findings, referral for the X-rays and what, if any, respiratory disorder was ultimately diagnosed.  The claim has been denied on the basis that the disability was not shown.  Because the record before the Board pertaining to this matter is incomplete (as evidence cited is not associated with the record) the Board cannot properly consider the matter.   

In addition, in August 2013, the Veteran indicated that he was, and continued to be, treated for all the claimed disabilities (other than PTSD) at the Milwaukee, Wisconsin VA hospital.  The most recent medical record from that facility in the record are dated in June 2011.  As the record appears to be incomplete, action on the remaining claims must be deferred until all pertinent evidence is assembled.   

Regarding the rating for diabetes mellitus, the next higher (40 percent) rating requires regulation of activities in addition to diet and insulin treatment.  There is no contemporaneous medical evidence of record as to whether the Veteran's diabetes mellitus requires regulation of activities.  Accordingly, a VA examination is necessary.  38 C.F.R. § 3.159. 

The Veteran has appealed the RO's May 2009 determination that he is incompetent for the purpose of direct receipt of VA compensation benefits.  There is no current medical opinion of record on the matter of his competency to handle his own financial affairs.  An examination to for such assessment is necessary.  

The Board notes that the Veteran failed to report for a VA eye examination in June 2011.  He is advised that under governing regulation, when a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record (and if the examination is in connection with a claim to reopen or for increase, the claim is to be denied).  38 C.F.R. § 3.655.

The case is REMANDED for the following:

1.  The RO should secure for the record the complete updated (to the present) clinical records (i.e., those not already in the record) of all evaluations and/or treatment which the Veteran has received for each disabilities at issue, specifically including the (cited by the April 2011 VA examiner) record showing a VA diagnosis of GERD in 2004; complete VA medical records generated when December 2009 chest X-rays were ordered on 2 occasions in December 2009, and complete updated records of the Veteran's evaluations and treatment for the claimed at the Milwaukee VA Medical center . 

If  such records suggest a need for a reexamination of the Veteran with respect to GERD, mesothelioma, or any other claim, such an examination should be arranged.  

2.  The RO should arrange for exhaustive development to verify the Veteran's accounts of being placed in circumstances consistent with a fear of hostile military/terrorist activity by virtue of serving on Navy vessels in the Persian Gulf during the Iran hostage crisis, and specifically whether the Veteran was on a U.S. Navy vessel that participated in support of the events, as he describes (in particular participation in support of a failed hostage rescue attempt).  The Veteran's accounts must be reconciled with official records showing when the alleged events occurred (and describing what took place) as well as with service personnel records showing the dates of his assignments to the U.S.S. LEXINGTON (AVT-16) and the U.S.S. GUAM (LPH-9.  The development should include, if suggested by initial findings, searches of archival materials/ships logs.  The RO should then make formal findings of fact for the record assessing the credibility of each of the Veteran's accounts, and whether the Veteran's service placed him in circumstances of a fear of hostile military action/terrorist activity.

3.  With the Veteran's cooperation the RO should assemble all pertinent information bearing on his competency to manage his own financial affairs-receive directly his monthly VA compensation, his current financial status, his living circumstances, and assessments by his conservator, as well as a social worker's assessment of his daily functioning.  

4.  Thereafter, the RO should arrange for the Veteran to be evaluated by an appropriate psychologist of psychiatrist.  If it is found that the circumstances of the his service placed him in circumstance of a fear of hostile action/terrorist activity (the RO must advise the examiner of its findings), the examiner must review the entire record, examine the Veteran, and determine whether of not he has a diagnosis of PTSD in accordance with DSM-IV based on such fear (as provided under the revised 38 C.F.R. § 3.304(f)(3).  If PTSD is diagnosed the examiner must identify the stressor and symptoms that support the diagnosis.  If PTSD is not diagnosed, the examiner must identify the symptoms necessary for such diagnosis found lacking.  

The examiner must also evaluate the Veteran regarding his competency to manage his own financial affairs.  In that regard, the examiner must be provided with all pertinent materials assembled by the RO (as instructed above).   Based on review of the record, and the and interview of the Veteran  the examiner should offer an opinion that responds to the following:

Does the Veteran have the mental capacity to manage his own finances, and in particular to directly (i.e., without a designated conservator) receive payments of his VA benefits ?  The examiner must explain the rationale for all opinions (citing to supporting clinical findings/factual data).  If the Veteran is deemed not competent to receive direct payments of VA benefits, the examiner must identify specifically what it is that renders him so.

The examiner must explain the rationale for all opinions offered.

5.  The RO should also arrange for the Veteran to be examined by an appropriate physician to ascertain the current severity of his diabetes mellitus.  The record must reviewed by the examiner in conjunction with the examination.  Any indicated tests or studies should be completed.  All pertinent findings should be described in detail.  The examiner must specifically state whether or not (in addition to diet and insulin the Veteran's diabetes requires regulation of activities (avoidance of strenuous occupational and recreational activities.  

The examiner must explain the rationale for all opinions. 

5.  The RO should then review the record, arrange for any further development indicated,  and readjudicate the remaining claims.  If any remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran, his conservator, and his representative the opportunity to respond.  The case should then be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs