Citation Nr: 1338923 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-30 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for gastroesophageal reflux disorder (GERD), claimed as secondary to PTSD. 3. Entitlement to service connection for chronic depression. 4. Entitlement to service connection for a bilateral knee disability, claimed as secondary to back disability. 5. Whether new and material evidence has been received to reopen a claim for service connection for a back disability. 6. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 7. Whether new and material evidence has been received to reopen a claim for service connection for a skin disability, claimed as due to exposure to herbicides in electrical transformers 8. Whether new and material evidence has been received to reopen a claim for service connection for ulcerative colitis/Barrett's esophagus, to include as secondary to PTSD. 9. Whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability, claimed as secondary to back disability. 10. Whether new and material evidence has been received to reopen a claim for service connection for a right shoulder disability, to include as secondary to back disability. 11. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral arm disability, claimed as secondary to back disability. 12. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL Appellant and his wife and daughter ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1964 with subsequent Air National Guard service. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that denied service connection for PTSD, GERD, chronic depression and mild art, bilateral knees. It is also on appeal from a December 2011 rating decision of the RO that reopened and denied claims for service connection for bilateral hearing loss, a skin disability, a back disability, ulcerative colitis/Barrett's esophagus, a left shoulder disability, a right shoulder disability, and a bilateral arm disability. The rating decision also denied a TDIU. The Board notes that regardless of this RO determination reopening the Veteran's claims, it will adjudicate the initial issues of new and material evidence in the first instance, because these initial issues determine the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 196), aff'g 8 Vet. App. 1 (1995). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for PTSD, GERD, chronic depression, a bilateral knee disability and a back disability; whether new and material evidence has been received to reopen claims for service connection for ulcerative colitis/Barrett's esophagus, a left shoulder disability, a right shoulder disability and a bilateral arm disability; and entitlement to a TDIU 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 April 2009 rating decision denied service connection for spinal stenosis, claimed as a back condition; the Veteran did not submit a substantive appeal for that decision, and it became final. 2. Evidence added to the record since the April 2009 rating decision does relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a back disability, and does raise a reasonable possibility of substantiating that claim. 3. An April 2009 rating decision denied service connection for bilateral hearing loss; the Veteran did not submit a substantive appeal for that decision, and it became final. 4. Evidence added to the record since the April 2009 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for bilateral hearing loss, and does not raise a reasonable possibility of substantiating that claim. 5. An April 2009 rating decision denied service connection for a skin disability, claimed as due to exposure to herbicides in electrical transformers; the Veteran did not submit a substantive appeal for that decision, and it became final. 6. Evidence added to the record since the April 2009 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a skin disability, claimed as due to exposure to herbicides in electrical transformers, and does not raise a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied service connection for spinal stenosis, claimed as a back condition, is final. 38 U.S.C.A. § 7105 (West 2002). 2. Evidence received since the April 2009 rating decision is new and material, and the claim for service connection for a back disability is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). 3. The April 2009 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002). 4. Evidence received since the April 2009 rating decision is not new and material, and the claim for service connection for bilateral hearing loss is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). 5. The April 2009 rating decision that denied service connection for a skin disability, claimed as due to exposure to herbicides in electrical transformers, is final. 38 U.S.C.A. § 7105 (West 2002). 6. Evidence received since the April 2009 rating decision is not new and material, and the claim for service connection for a skin disability, claimed as due to exposure to herbicides in electrical transformers, is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Notice for the Veteran's claims, including Kent notice, was provided in a February 2011 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records, statements by the Veteran and his witnesses, the transcript of a July 2011 Decision Review Officer hearing and the transcript of a June 2013 video conference hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA is not obligated to provide a medical examination if the appellant has not presented new and material evidence to reopen a final claim. 38 U.S.C.A. § 5103A(f). Thus, in this case a VA examination is not necessary. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). The Court has 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (finding that the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). Back Disability The April 2009 rating decision denied service connection for spinal stenosis, claimed as a back condition; the Veteran did not submit a substantive appeal for that decision, and it became final. The rating decision noted that service treatment records reflected that in 1968 the Veteran was treated for low back strain after he fell off a ladder descending from an aircraft. An April 2009 VA examination report stated that it would be merely speculative to nexus a relationship between an injury approximately 40 years prior in the military to the Veteran's current back condition. Evidence of record at that time included the Veteran's service treatment records, post-service VA and private medical records, a relevant VA examination report and the Veteran's own contentions. Evidence received since the April 2009 rating decision includes a May 2013 private medical report from the Veteran's treating physician. The physician referred to the Veteran's 1968 fall from a ladder, as well as other claimed inservice injuries. The physician stated that he felt within a reasonable degree of medical certainty that, given the Veteran's history of numerous back injuries and his persistence of low back pain throughout all these years, there was a clear-cut temporal connection between those injuries, his work, and injuries in the military and his current disability. The physician stated that he did feel, therefore, that those injuries [including the 1968 low back injury show in the Veteran's service treatment records] were significant aggravating factors to the Veteran's current medical condition of severe back pain. The Board finds that this medical opinion constitutes new and material evidence. It is presumed credible for the purpose of reopening the Veteran's claim. Kutscherousky, supra. It is new evidence that was not previously submitted to VA. It is material because it constitutes evidence that a medical doctor believes that the Veteran's 1968 back injury is related to a current back disability. It weighs against the opinion set forth in the April 2009 VA examination report. Thus, the medical opinion also triggers VA's duty to obtain a medical opinion. See Shade, supra; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Bilateral Hearing Loss and a Skin Condition The April 2009 rating decision denied service connection for bilateral hearing loss and a skin disability; the Veteran did not submit a substantive appeal for these decisions, and they became final. The rating decision noted that service treatment records reflected that the Veteran's hearing was within normal limits at separation. An April 2009 VA examination report provided the opinion that the Veteran's current hearing loss was not caused by or a result of noise exposure during active military service. The examiner noted that she could not resolve the issue of whether the Veteran's current hearing loss was caused by or a result of noise exposure during Air National Guard service without resort to mere speculation. The rating decision also noted that service treatment records were negative for treatment complaints, or diagnoses related to a skin disorder. Post-service private medical records included a notation that the Veteran had a skin condition most likely related to dermatitis, but were negative for any evidence linking it to the Veteran's service. Evidence of record at that time included the Veteran's service treatment records, post-service VA and private medical records, a relevant VA examination report, medical texts from the internet and the Veteran's own contentions. Evidence received since the April 2009 rating decision includes additional medical records. Many of these records were in the record at the time of the prior final rating decision, and therefore are not new. The remaining medical records are simply negative for any evidence that the Veteran's bilateral hearing loss or skin disability are related to active duty in any way. Evidence received since the April 2009 rating decision also includes additional contentions by the Veteran, some made during the June 2013 hearing before the undersigned Veterans Law Judge. The Veteran continues to assert that he has bilateral hearing loss related to inservice noise exposure, and that he has a skin disability due to exposure to herbicides (specifically polychlorinated biphenyl (PCB)) in electric transformers. The Board finds that these assertions are redundant of the prior contentions that were already considered and rejected by the April 2009 rating decision. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). In addition, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case of whether the Veteran has bilateral hearing loss or a skin disability as a result of active duty falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the assertions by the Veteran do not raise a reasonable possibility of substantiating the claims, and are not material within the meaning of 38 C.F.R. § 3.156(a). In sum, the evidence received raises no reasonable possibility of substantiating the claims for service connection for bilateral hearing loss or a skin disability. Thus, it is not material within the meaning of 38 C.F.R. § 3.156(a) and the claims are not reopened. ORDER New and material evidence having been received, the application to reopen a claim for service connection for a back disability is granted; to this extent only, the appeal is granted. New and material evidence not having been received, the application to reopen a claim for service connection for bilateral hearing loss is denied. New and material evidence not having been received, the application to reopen a claim for service connection for a skin disability is denied. REMAND A preliminary review of the record indicates that the remaining claims require additional development. Inasmuch as the claim for service connection for a back disability has been reopened, it must be considered de novo. On review, the Board finds that this claim requires additional development. Since the May 2013 private medical report raises the possibility that the Veteran incurred a back disability during active duty, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion. See McLendon, supra. In addition, the VCAA requires that VA assist a claimant by 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. The issues of whether new and material evidence has been received to reopen claims for service connection for a left shoulder disability, claimed as secondary to a back disability, a right shoulder disability, to include as secondary to a back disability; a bilateral knee disability, claimed as secondary to a back disability; and a bilateral arm disability, claimed as secondary to a back disability, are inextricably intertwined with the issue of service connection for a back disability being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Turning to the Veteran's claims for service connection for PTSD and chronic depression, the Veteran asserts that each disability is due to a military stressor or stressors. The Board notes that VA has not properly developed the record with respect to two claimed stressors. The Veteran and a witness state that an aircraft crash near an antenna tower, the aftermath of which was stressful for him to see for many months afterward, took place in December 1962 at Duluth, Minnesota. The Veteran stated that the name of an engine mechanic whose fatal accident he had to clean up was George Ion, and it took place in 1975 during an Operational Readiness Inspection, apparently also in Duluth. In addition, a July 2009 report and June 2011 letter from a private psychologist provide that the Veteran now has PTSD as a result of several active duty incidents, including the two identified above. Since this report and letter raise the possibility that the Veteran incurred PTSD as a result of incidents during active duty, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion. See McLendon, supra. In addition, the duty to assist requires that VA assist a claimant by 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. The issues of service connection for GERD, claimed as secondary to PTSD; service connection for chronic depression; and whether new and material evidence has been received to reopen a claim for service connection for ulcerative colitis/Barrett's esophagus, to include as secondary to PTSD, are inextricably intertwined with the issue of service connection for PTSD being remanded. See Harris, supra (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Finally, the issue of entitlement to a TDIU is inextricably intertwined with all the issues being remanded. Id. Accordingly, the case is REMANDED for the following action: (Please note, 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. Using all appropriate sources, attempt to verify whether or not an aircraft crashed near an antenna tower in December 1962 in Duluth, Minnesota, while the Veteran was stationed there, and whether or not a George Ion incurred a fatal head injury in 1975 during an Operational Readiness Inspection while serving with the Veteran in the Air National Guard in Duluth. 2. After completion of the foregoing, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any psychiatric disability that may be present, to include PTSD or chronic depression. The claims file must be made available to the examiner. The AMC must specify for the examiner the stressor or stressors which it has determined are established by the record. The examiner must be instructed that only those events that have been verified (or otherwise accepted by the AMC) may be considered for the purpose of determining whether the Veteran was exposed to a stressor in service. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner must do the following: (1) Specifically identify all psychiatric diagnoses. (2) If PTSD is diagnosed (under DSM-IV criteria), the examiner should identify the specific stressors upon which the diagnosis is based and whether the Veteran's symptoms are related to the claimed stressor(s). (b) If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's service. If the examiner determines a psychiatric disability is related to service, he or she is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any ulcerative colitis/Barrett's esophagus or GERD is proximately due to, the result of, or aggravated by the Veteran's PTSD or depression. The examiner is requested to provide a rationale for any opinion expressed. 3. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any back disability that may be present. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to answer the following question: (a) Is it at least as likely as not (50 percent or more likelihood) that any back disability that may be present was caused or aggravated by the Veteran's active duty, to include the injury incurred in 1968 described above. In providing the opinion, the examiner is requested to specifically address the May 2013 private medical report. (b) If, and only if, the examiner the answer to (a) is yes, is it at least as likely as not (50 percent or more likelihood) that any bilateral knee disability, left shoulder disability, right shoulder disability, or bilateral arm disability is proximately due to, the result of, or aggravated by the Veteran's back disability. The examiner is requested to provide a rationale for any opinion expressed. 4. Then, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs