Citation Nr: 1331430	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  11-03 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim of service connection for a nervous condition/depressive condition.

2.  Entitlement to a compensable rating for onychomycosis involving all toenails (claimed as a skin condition). 

3.  Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1965 to June 1967 with a period of Active Duty for Training (ACDUTRA) from July to December 1962.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico.

The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2011); 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; hence, what the RO may have determined in this regard is irrelevant.  Barnett, 83 F.3d at 1383.  The Board has characterized the issue accordingly. 

Applicable law provides that absent a waiver, a claimant seeking a disabling rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The Veteran has not withdrawn the appeal as to the issue of the disability rating greater than assigned, and the issue of an increased rating for onychomycosis therefore remains in appellate status.  

The matter of service connection for PTSD is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  In a September 1980 rating decision, the RO denied the Veteran's claim of service connection for a nervous condition based primarily on a finding that such condition was not incurred in service.  The Veteran did not initiate a timely appeal for this matter, and no new and material evidence was received within one year of the notification of that denial.

2.  Evidence associated with the claims file since the September 1980 denial, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the service connection claim for a nervous condition/depressive condition, is cumulative or redundant of evidence previously received, and does not raise a reasonable possibility of substantiating the claim.

3.  The Veteran's onychomycosis affects less than 5 percent of his body, and there is no evidence of disfigurement, scars or associated limitation of function.


CONCLUSIONS OF LAW

1.  As new and material evidence has not been received since the RO's September 1980 rating decision, the criteria to reopen the Veteran's claim of entitlement to service connection for a nervous condition/depressive condition have not been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012).  

2.  A compensable rating for onychomycosis is not warranted.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code (Code) 7813 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act (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).  The VCAA applies to the instant claims.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits.  A December 2009 letter provided notice in accordance with Kent, and also explained the evidence VA was responsible for providing and the evidence he was responsible for providing.  

VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  The December 2009 VCAA letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal.

With respect to the higher initial rating claim, as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The appellant has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate.

A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal.  Service treatment records and VA treatment records pertaining to his claim have been obtained and associated with his claims file.  Regarding the Veteran's claim for onychomycosis, a VA examination was obtained in December 2009.  

VA need not conduct an examination with respect to the claim of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a nervous condition/depressive condition because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured.  Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened).  Therefore, a remand for a VA examination is not warranted for this matter.  38 C.F.R. § 3.159(c)(4)(iii).

As for other evidence worth noting, the Veteran's November 2009 VA Form 21-526 notes that he either claimed or is receiving disability benefits from the Social Security Administration (SSA).  The file, however, does not show that VA has contacted SSA to obtain any SSA records.  In some instances, VA has a duty to obtain such records.  Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002).  But in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that VA's duty to assist was limited to obtaining relevant SSA records.  The Federal Circuit Court rejected the argument in Golz that SSA records are always relevant and that VA always is required to obtain them.  Relevant records were defined under 38 U.S.C.A. § 5103A as those relating to the injury for which the claimant is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim.  Golz, 590 F.3d at 1321.  The Federal Circuit Court also pointed out that, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim."  Id.  The Federal Circuit Court thus concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant."  Id., at 1323.

Here, neither the Veteran nor the record provide a reason to believe any SSA records may be relevant.  Thus, a remand for their procurement would serve no useful or meaningful purpose and only instead result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The appellant has not identified any evidence that remains outstanding.  VA's duty to assist is also met.  Accordingly, the Board will address the merits of the claims.

New and Material Evidence

Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence.  38 U.S.C.A. §§ 5108, 7105(c).  In determining whether evidence is new and material, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

VA regulation defines "new" evidence as existing evidence not previously submitted.  "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 clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.  See id., at 117.

As an initial matter, the Board notes that it has reviewed not only the Veteran's physical claims file, but also the "Virtual VA" system to ensure a complete assessment of the evidence relevant to the present appeal.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

Historically, a claim for a nervous condition was denied in a September 1980 rating decision.  The Veteran was advised of the September 1980 rating decision and of his appellate rights in an October 9, 1980 letter.  The Veteran did not file any document that could be construed to express disagreement with the September 1980 rating decision within one year from issuance of the notice of that decision, and no new and material evidence was received within one year of the notification of that denial.  See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  Thus, the Board finds that the September 1980 rating decision became final.  38 U.S.C.A. § 7105.  

In November 2009, the Veteran sought to reopen his claim of entitlement to service connection for a nervous condition/depressive condition.  A March 2010 rating decision found that new and material evidence has not been received to reopen the claim.  

Evidence submitted after the RO's September 1980 rating decision includes January 2009 VA treatment records showing a negative neuropsychiatry assessment and showing a negative depression screen.  Service personnel records were also obtained in December 2009.

None of the new evidence added to the record since the September 1980 rating decision, either by itself or when considered with the previous evidence of record, provides medical evidence reflecting that the Veteran has a nervous condition/depressive condition that was incurred in or aggravated during his active service.  In addition, although service personnel records were received since the September 1980 rating decision, the Board notes that no information contained within such records is applicable to the Veteran's claim for service connection for a nervous condition/depressive condition.  Thus, the provisions of 38 C.F.R. § 3.156(c) are not applicable.
 

Consequently, the Board concludes that the additional evidence does not constitute new and material evidence sufficient to reopen the claim of entitlement to service connection for a nervous condition/depressive condition.  No medical professional has provided any opinion showing that the Veteran has a nervous condition/depressive condition that is related to service.  In reaching this determination, the Board is cognizant of the holding in Shade v. Shinseki, 24 Vet. App.110 (2012).  In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a claimant's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a claimant's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  Id.  See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

Here, it is unclear whether the Veteran is even pursuing an appeal as to reopening his claim for a nervous condition/depressive condition.  See April 2010 notice of disagreement limiting contentions to the PTSD issue.  However, assuming the Veteran is interested in pursuing such appeal, the Board notes that his statements received since the September 1980 rating decision do not provide information showing how a nervous condition or depressive condition was incurred in service, and further, merely reiterate the Veteran's previous contentions.

Accordingly, and based on this evidentiary posture, the Board must deny the Veteran's application to reopen this previously denied issue.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

"Staged" ratings may be warranted if the claim involves the initial rating assigned with a grant of service connection.  See Fenderson v. West, 12 Vet. App. 119 (1999).  As the appeal regarding onychomycosis is from the initial rating assigned with the grant of service connection, "staged" ratings are for consideration. The Board finds that the record does not reflect any further distinct periods of time when the criteria for the next higher rating were met for this disability.

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. § 4.3.

As noted above, the Board again notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this 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 analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's onychomycosis has been assigned a 0 percent rating under Code 7813.  38 C.F.R. § 4.118.  Pursuant to that Code, onychomycosis is rated as disfigurement of the head, face, or neck, (Code 7800), scars (Codes 7801-7805), or dermatitis (7806), depending upon the predominant disability.  Id.

During his December 2009 VA skin examination, the Veteran reported fungus in his toenails.  On physical examination, the examiner found that all of the Veteran's toenails were atrophied with fungus, but that less than 5 percent of the exposed area (and the total body) was affected.  The examiner specifically noted that there has been no skin disease treatment in the past 12 months.  Onychomycosis involving all toenails was diagnosed and the examiner opined that such was likely related to service.  

Based on these findings, the RO granted service connection and awarded the Veteran a 0 percent rating.  See March 2010 rating decision.  Since this examination, there has been no additional evidence or statements from the Veteran (or his representative) to indicate a worsening of such disability.  In fact, it is not even clear that the Veteran is seeking a higher rating.  See April 2010 notice of disagreement limiting contentions to the PTSD issue.

Accordingly, as the evidence fails to show onychomycosis affects more than 5 percent of his body, or that there is any evidence of disfigurement, scars, or associated limitation of function, a compensable rating for onychomycosis is not warranted.

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis for onychomycosis.  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R.      § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, comparing the Veteran's disability level due to onychomycosis to the applicable rating criteria, the Board finds that the degree of disability shown is entirely contemplated by the rating schedule.  This disability does not present an exceptional disability picture.  Notably, the December 2009 VA examination report noted that the Veteran has not sought skin disease treatment in the past 12 months.  The schedular rating assigned is, therefore, adequate; referral of this claim for extraschedular consideration is not required.

Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009) , the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The evidence reflects that the Veteran was employed as a delivery driver by the same employer from 1980 until June 2008.  See VA Form 21-526, received in November 2009.  He indicated "over 65" in response to the question "[w]hat disability(ies) prevent you from working?".  He has not reported, and the evidence does not otherwise reflect, that he retired due to any service-connected disability or that he is prevented from securing and following gainful employment due to any such disability.  As there is no evidence of unemployability, the question of entitlement to a TDIU is not raised under Rice in this instance.


ORDER

New and material evidence has not been received to reopen a claim of entitlement to service connection for a nervous condition/depressive condition.

A compensable rating for onychomycosis is denied.


REMAND

The Veteran contends that he developed PTSD as a result of his experiences in Vietnam.  The Veteran submitted a statement in April 2010 identifying two stressors.  This statement was originally submitted in Spanish and was translated for the Board in June 2013.  First, he stated that he was involved in a conflict with the B-52 enemy in March 1967, where many American soldiers died.  Second, he stated that in May 1967 (the Board notes that his original statement in Spanish stated May 1967; however, the translated statement incorrectly listed March 1967), they were attacked by the Vietnamese and a mortar fell on the bunker killing two soldiers, including a soldier from Puerto Rico with the last name of Rivera.

For non-combat stressors, service connection for PTSD requires credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f)(2012). 

The Veteran's service personnel records reveal that he served in Vietnam from February 24, 1966 to February 23, 1967.  This is prior to the period identified by Veteran as to when his stressors occurred.  The Board acknowledges that the statement was filled out many years after his service, and further, that the statement may have been written by someone other than the Veteran (as the handwriting appears different than that previously submitted by the Veteran).

Given that there may have been an error in transcription regarding the dates the alleged stressors took place and in order to fulfill VA's duty to assist the Veteran in the development of facts pertinent to his PTSD claim, the Board finds an attempt should be made to further verify his claimed stressors. 

Accordingly, the case is REMANDED for the following actions:

1.  The RO should provide the Veteran an opportunity to verify the dates his stressors occurred.  The Veteran should be notified that specific dates, locations and names of the people involved will better allow for verification of these stressors.

2.  If the Veteran responds with an updated stressor statement, the RO should assess whether this information is adequate to provide to the Joint Services Records Research Center (JSRRC).  

3.  If the Veteran does not respond or if the information is inadequate to send to JSRRC, the RO should make a formal finding of a lack of information required to corroborate stressors.  This finding should be associated with the claims folder.

4.  If the information is adequate, the RO should prepare a letter asking the JSRRC to provide any available information that might corroborate the Veteran's alleged stressors in service, specifically a conflict with the B52 enemy and an attack by the Vietnamese in which a mortar fell on the bunker killing two soldiers.  Any available, pertinent, service personnel records should be enclosed with that request.  Any available unit records and histories should be requested from the JSRRC.  If indicated by the JSRRC, the RO should also contact the National Personnel Records Center (NPRC) and/or the National Archives and Records Administration (NARA).  VA will end its efforts to obtain records from a Federal Department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.

5.  If (and only if) there is at least one objectively confirmed stressor (or sufficient evidence of combat such that a stressor does not need to be independently verified), request that a VA PTSD examination be scheduled to determine whether the Veteran meets the criteria for a diagnosis of PTSD as set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  If the examiner concludes that the Veteran meets the criteria for a PTSD diagnosis, the examiner is asked to also express an opinion as to whether the PTSD is at least as likely as not (a 50 percent or greater probability) related to the Veteran's military service, and specifically, to a confirmed stressor.  (Note: only a confirmed stressor, or a combat stressor not needing to be independently verified, can serve as a viable basis for the diagnosis).  The claims folder should be made available to the examiner for review.  The examiner should provide a complete rationale for all opinions.

6.  Thereafter, the RO should readjudicate the Veteran's claim for PTSD.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given an opportunity to respond.  The case should then be returned to the Board, if in order, for further appellate review.

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




______________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs