Citation Nr: 1340118 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 10-42 768 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD), has been received. 2. Entitlement to service connection for a temporomandibular joint (TMJ) disorder. 3. Entitlement to service connection for a right shoulder disability, to include as secondary to service connected left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg INTRODUCTION The Veteran served on active duty from September 1993 to November 2001. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2010 rating decision by the RO that, inter alia, denied claims for service connection for depression as secondary to service connected disability and found that new and material evidence had not been received to reopen a claim for service connection for anxiety as secondary to service connected disability. In October 2010, a notice of disagreement (NOD) was filed with the denial of these claims. A statement of the case (SOC) was issued with respect to these claims in March 2012 and the Veteran filed a substantive appeal with respect to these claims (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in March 2012. This appeal to the Board also arose from an April 2009 rating decision that, inter alia, denied claims for service connection for a TMJ disorder and a right shoulder disability. An NOD was filed with respect to the denial of these claims in June 2009. An SOC with respect to these claims was issued in September 2010 and the Veteran filed a substantive appeal with respect to these claims via a VA Form 9 in October 2010. Following the receipt of additional evidence, a Supplemental SOC was completed with respect to these claims in March 2012. Given the multiple psychiatric diagnoses of record, the Board has recharacterized the claims with respect to service connection for anxiety and depression as encompassing one claim for service connection for any acquired psychiatric disorder (aside from PTSD for the reasons stated below), however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Also with respect to the claims for psychiatric disabilities, the Board has considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). In that decision, the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). As indicated, the Veteran was previously denied service connection for anxiety disorder as secondary to service connected disability. At the time of the prior denial, the Veteran made the same complaints made in connection with the current claim for service connection for depression; namely, that such disability (claimed at that time as anxiety and depressive disorder) was the result of service connected disability. As such, and consistent with the holding in Clemons, the psychiatric diagnoses that have been rendered do not constitute different disabilities, and new and material evidence is required to reopen the claim for service connection for depression. (Such action will not result in any prejudice to the Veteran as the decision below will reopen the claim for service connection for an acquired psychiatric disability and grant service connection for depression. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993)). With respect to PTSD, the April 2009 rating decision, in addition to denying the claim for service connection for a TMJ disorder and a right shoulder disability, denied a claim for service connection PTSD, and the Veteran specifically limited his notice of disagreement with respect to this decision to the denial of the claims for service connection for a TMJ disorder and a right shoulder disability and did not express disagreement with the denial of the claim for service connection for PTSD. As such, the claim withe respect to service connection for an acquired disability on appeal does not, as reflected in the manner in which the issue is characterized on the title page, encompass PTSD. In May 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In November 2013, the undersigned granted a motion to advance this appeal Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). . The Board notes that in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claims. The Virtual VA folder contains a transcript from the May 2013 hearing, a copy of which has been associated with the paper claims file. Also contained in the Virtual VA folder are VA outpatient treatment reports dated through January 2012 not contained in the paper claims file that are documented to have been considered by the RO in the March 2012 SSOC. The Board's decision on the request to reopen and the right shoulder claim is set forth below. The claim for service connection for a TMJ disorder is addressed in the remand following the order; this matter is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matters herein decided have been accomplished. 2. In an October 2008 rating decision, the RO, inter alia, denied service connection for anxiety to include as secondary to service connected disability; although notified of the denial in an October 2008 letter, the Veteran did not initiate an appeal of the decision. 3. Evidence associated with the claims file since the October 2008 rating decision includes new evidence that relates to an unestablished fact necessary to substantiate a claim for service connection for an acquired psychiatric disability other than PTSD, and raises a reasonable possibility of substantiating the claim. 4. There is competent medical evidence of record linking current disability due to depression to service connected disability. 5. The weight of the competent medical evidence as to whether the Veteran's impingement syndrome of the right shoulder was aggravated by his service connected left shoulder disability is in relative balance. CONCLUSIONS OF LAW 1. The October 2008 rating decision which denied service connection for an acquired psychiatric disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. As pertinent evidence received since the October 2008 rating decision is new and material, the criteria for reopening the claim for service connection for an acquired psychiatric disability other than PTSD are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for depression as proximately due to or the result of service-connected disability are met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for impingement syndrome of the right shoulder as proximately due to or the result of service-connected left shoulder disability, on the basis of aggravation, are met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the Board's favorable disposition of the issues adjudicated herein, the Board finds that all notification and development actions needed to fairly adjudicate such issues have been accomplished. II. Analysis A. Psychiatric Disability When there is an approximate balance in the 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Under the legal authority in effect at the time of the prior denial and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Also under the legal authority in effect at the time of the prior denial and currently, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). That regulation permits service connection not only for disability caused by service connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Historically, the Board notes that the Veteran's original claim for service connection for a psychiatric disability was received in August 2008, wherein the Veteran claimed that his major depressive disorder/anxiety was caused by his service connected left shoulder disability (listed on Rating Decisions as "Left Shoulder Pain, Status Post Anterior Shoulder Reconstruction and Capsular Shrinkage"). In an October 2008 rating decision, the RO denied service connection for anxiety (as well as a separate claim for service connection for PTSD). The evidence before the adjudicators at that time included the service treatment reports, which reflected no evidence of a psychiatric disability. Also of record were VA mental hygiene clinic reports dated in July 2008 reflecting a diagnosis of PTSD. Based on the information and evidence then of record-to include as summarized above-at the time of the October 2008 rating decision, the RO denied service connection for anxiety on the basis that the evidence did not show that anxiety was related to the service connected left shoulder disability, nor was there any evidence showing anxiety during service or evidence of a diagnosis of anxiety related to service. The Veteran was notified of the RO's denial in an October 2008 letter; however, he did not initiate an appeal of the decision. See 38 C.F.R. §§ 20.200, 20.201, 20.202 (2013). In addition, the record does not reflect that new and material evidence was received during the one year appeal period following the notice of the October 2008 rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The October 2008 denial of the claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c) (West 2002) 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran filed his request to reopen in November 2009. Regarding such petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the only final denial of the claim is the October 2008 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Evidence received since the October 2008 rating decision includes report from an October 2009 VA mental health clinic in which the Veteran reported that his "biggest stress right now" was his service connected shoulder disability. The diagnosis included mood disorder (anxiety and depression) associated with chronic pain and physical limitations. This diagnosis was also demonstrated on other VA mental health clinic reports dated in 2009. Also received since the October 2008 rating decision are reports from a May 2012 VA psychiatric examination, documented to have included a review of the claims file, in which the examiner stated "the [V]eteran's depression does appear [to be] a result of the pain he feels in his ankles and shoulders and the resultant limitations he experiences as a result of this pain." Testimony from the Veteran with respect to psychiatric disability at the May 2013 hearing was that his depression began in the military due to his not being able to progress as an infantryman as a result of his shoulder disability. The Veteran testified that he wanted to pursue a military career but that his shoulder disability prevented such a career, and that he became depressed because he had to retire from the military. The Veteran also testified that he suffered from depression due to the fact that he used to play sports and was otherwise active, but that service connected disabilities (disability of the shoulder and ankles and foot fungus) prevented such activity and otherwise negatively affected the quality of his life. [The Board notes that the record reflects that the Veteran's disabilities include (among others), tinea pedis, rated as 30 percent disabling; left shoulder impingement syndrome, rated as 20 percent disabling, chronic right ankle sprain with degenerative joint disease, rated as 10 percent disabling, and left ankle osteoarthritis, rated as 10 percent disabling.] The Board finds that this foregoing evidence is "new" in that it was not before agency decision makers at the time of the October 2008 final denial of the claim for service connection for an acquired psychiatric disorder (listed therein as "anxiety") and is not duplicative or cumulative of evidence previously of record. Moreover, and as one of the bases for the RO's October 2008 denial was that the evidence did not show that a psychiatric disability was related to the service connected left shoulder disability, the 2009 VA mental hygiene clinic reports linking psychiatric disability to physical problems and, of even more relevance, the May 2012 VA examination reports linking depression to service connected disability represent material evidence as these clinical reports relate a psychiatric disability to service connected disability. Hence, this evidence raises a reasonable possibility of substantiating the claim, as characterized herein, for service connection for an acquired psychiatric disability other than PTSD. See Shade v. Shinseki, 24 Vet. App. 110, 119-21 (2010) (holding that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim"). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for an acquired psychiatric disability other than PTSD are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. With respect to the reopened, underlying claim, the Board finds that entitlement to service connection for depression as secondary to service connected disability is warranted. 38 C.F.R. § 3.310(a). The Board makes this determination based on the 2009 VA mental hygiene clinic reports linking psychiatric disability to physical problems and, of even greater probative value, the conclusion following the May 2012 VA psychiatric examination linking depression to service connected disability. This evidence is not contradicted by any medical evidence of record, and when considered in conjunction with the Veteran's testimony to the undersigned with respect to the impact of his service connected disabilities on his mental health-testimony which the undersigned finds credible-is sufficient to warrant a grant of the reopened claim. B. Right Shoulder Disability The Board notes initially that the Veteran does not contend that he has a right shoulder disability that was incurred in or aggravated by service but instead has asserted, to include in sworn testimony to the undersigned, that service connection for such disability should be granted as secondary to his service connected left shoulder disability. In this regard, he has testified as to his belief that "overuse" of the right shoulder due to the inability to do things with his left shoulder has resulted in right shoulder disability. The medical evidence addressing the matter of whether right shoulder disability is related to the service connected left disability is in conflict, as the conclusion by a VA examiner following a March 2009 examination, after acknowledging the Veteran's belief that "overcompensating" with the right shoulder due to the left shoulder disability caused his right shoulder problems, was that the right shoulder disability diagnosed at that time (impingement syndrome and supraspinatus tendinosis) was less likely than not the result of his service connected left shoulder disability. In supporting the conclusion, the examiner noted MRI evidence in the right shoulder of an "os acromiale," which the examiner stated resulted in instability and hypertrophic changes over time, compression of the supraspinatus muscle and tendon, and consequent tendinosis and impingement syndrome. The above opinion did not specifically address whether any portion of impingement syndrome in the right shoulder was the result of aggravation attributable to the service connected left shoulder disability. In this regard, a private physician, who stated that he reviewed the Veteran's VA medical records, found in a December 2008 opinion that the impingement syndrome in the right shoulder was aggravated by the problems the Veteran has experienced in his left shoulder. The Board points out that, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises as to whether a claim should be granted, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet App. at 53-56. Given the facts noted above, the Board finds the probative weight of the positive and negative evidence as to whether the Veteran's right shoulder impingement syndrome was aggravated by service connected left shoulder disability to be in relative balance. As such, and after resolving all reasonable doubt in this regard in the Veteran's favor, the Board finds that the criteria for service connection for right shoulder impingement syndrome secondary to service-connected disability, on the basis of aggravation, are met. ORDER As new and material evidence to reopen the claim for service connection for an acquired psychiatric disability other than PTSD has been received, to this extent, the appeal is granted. Service connection for depression as secondary to service connected disability is granted. Service connection for impingement syndrome of the right shoulder disability on the basis of aggravation by service connected left shoulder disability is granted. REMAND Based on a review of the claims file and the contentions of record, the Board finds that further RO action on the claim for service connection for a TMJ disorder is warranted. The service treatment reports do not include the dental records but do include a reference to a TMJ disorder in September 1999 under the category of "Temporary (Minor) Problems" on a Master Problem List. At the May 2013 hearing, the Veteran testified that he was provided a mouth guard by a dentist during service for his TMJ disorder. Also at the May 2013 hearing, testimony was presented as to the Veteran being treated for a TMJ disorder "almost immediately after service" by a dentist by the name "N.C." in Columbia, South Carolina. The record reflects an October 2008 statement, but no earlier treatment records, by this dentist. This statement reflects the Veteran's report of a "long-standing" TMJ disorder that this dentist sated was "documented in military records." The Veteran also testified as to being scheduled for an up-coming appointment, by an unspecified medical professional, for treatment for his TMJ disorder. Given the contentions and relevant in-service and post service of record, some of which has been set forth above, the Board finds that a VA examination that includes an opinion as to whether the Veteran has a TMJ disorder that is etiologically related to service is necessary in this case in order to fulfill the duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While this matter is on remand, to ensure that all due process requirements are met, and that the record before the physician is complete, the RO should also conduct efforts to, should they exist, obtain the records of dental treatment during service; any records of earlier, in particular, shortly post service, treatment by N.C., D.D.S.; and any records from the upcoming appointment for treatment of a TMJ disability by an unspecified provider referred to at the hearing. The RO should also, by letter, provide the Veteran another opportunity to present information and/or evidence pertinent to the claim for service connection for a TMJ disorder. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, outstanding records of any pertinent private treatment. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for a TMJ disorder. Accordingly, this matter is hereby REMANDED for the following action: 1. Contact the National Personnel Records Center and any other appropriate repository of military records and obtain the Veteran's records of dental treatment during service. Any and all attempts to obtain these records must be documented in the Veteran's VA claims file. If the requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for a TMJ disorder that is not currently of record, to include any records from earlier treatment by N.C., D.D.S. or from the upcoming appointment for treatment of a TMJ disorder referenced at the hearing. In the letter, specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained or do not exist, notify the Veteran of the records that were not obtained or that do not exist, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or response(s) from each contacted entity have been associated with the claims file, or an appropriate time period for the Veteran's response has expired, arrange for the Veteran to undergo dental examination by an appropriate physician. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented history and assertions. The dentist should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran has a current a TMJ disorder that was first manifested during service. In rendering the requested opinion, the physician should consider and discuss all pertinent medical and lay evidence-to include argument advanced by and on the Veteran's behalf. The examiner should set forth the complete rationale for the conclusion reached-to include citation to any medical authority considered-in a printed (typewritten) report. 5. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for a TMJ disorder in light of pertinent evidence, argument submitted by and on behalf of the Veteran, and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs