Citation Nr: 1523729 Decision Date: 06/04/15 Archive Date: 06/16/15 DOCKET NO. 13-24 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a previously denied claim of service connection for hypertension. 4. Whether new and material has been received to reopen a previously denied claim of service connection for obstructive sleep apnea. 5. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 6. Entitlement to service connection for tinnitus, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Veteran represented by: John R. Worman, Attorney at Law ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The RO in Anchorage, Alaska has jurisdiction over the appeal. The Board has combined the claims for an acquired psychiatric disorder and PTSD into one issue as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record.) The issues of entitlement to service connection for tinnitus and an acquired psychiatric disorder and whether new and material evidence has been received to reopen the claims for hypertension and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed October 2008 rating decision, the RO denied the Veteran's claims of entitlement to service connection for tinnitus and an acquired psychiatric disorder. VA did not receive new and material evidence within a year of that decision. 2. The evidence received since the October 2008 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for tinnitus and acquired psychiatric disorder, and raises the reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The October 2008 rating decision denying the Veteran's claims of entitlement to service connection for tinnitus and an acquired psychiatric disorder, to include PTSD, is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2014). 2. Evidence received since the October 2008 rating decision is new and material and the claims of entitlement to service connection for tinnitus and an acquired psychiatric disability, to include PTSD, are reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claims for service connection for tinnitus and acquired psychiatric disorder were previously denied in a September 2007 rating decision. In response to a November 2007 request for reconsideration, the claims were again denied in an October 2008 rating decision. The Veteran did not appeal the October 2008 decision, and new and material evidence was not received within one year of that decision. Thus, the October 2008 rating decision became final. See 38 U.S.C.A. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. A claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence added to the record since the most recent final denial in October 2008 includes an undated statement of Dr. G.W. noting "the symptoms [the Veteran] displays do qualify as a diagnosis of PTSD," and a December 2010 VA examination report indicating that "[s]tatements provided by the veteran indicate that his military service aggravated psychological distress that existed previous to his military service." Regarding tinnitus, the new evidence of record includes the Veteran's March 2010 competent statement that his symptoms of tinnitus worsen coincident with his stress levels associated with his acquired psychiatric disorder. This evidence was not previously considered by decision makers, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Accordingly, the claims for service connection for an acquired psychiatric disorder and tinnitus are reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. REMAND First, the Veteran has asserted that, following active service, he served in the Air Force Reserves and the North Dakota and Montana Air/Army National Guard. See April 2007 Statement of the Veteran; February 2012 Letter to Veteran. Indeed, a June 1978 Report of Medical Examination conducted by the North Dakota Air National Guard is of record. However, no further treatment records from any National Guard service is of record, and efforts to locate them must be undertaken on remand. Additionally, the dates of the Veteran's Reserves/National Guard service and any periods of active duty for training (ACDUTRA)/inactive duty for training (INACDUTRA) should be verified on remand. Second, the Veteran has asserted that he received medical treatment at the Fargo VA Medical Center (VAMC). No treatment records from the Fargo VAMC are of record, and it is unclear whether the RO made efforts to obtain them. Additionally, a December 2010 VA examination report discusses a June 9, 2010, VA treatment record authored by Dr. K., where Dr. K. apparently indicates that some of the Veteran's psychiatric symptoms may have preexisted his service. No such record is located within the claims file. Likewise, the May 2011 rating decision notes that VA Montana treatment records dated from May 1996 until May 2011 were ". . . reviewed electronically." A review of the Veteran's virtual claims file (VBMS and Virtual VA) reveals no treatment records at all, and the last treatment note in the paper file is dated in May 2010. Therefore, upon remand, all outstanding VA treatment records, including those reviewed electronically by the RO and any updated records, must be obtained. In this regard, there is evidence that the Veteran has received treatment from the Anchorage VAMC, the Fort Harrison VAMC, the Fargo VAMC, the Kalispell Community Based Outpatient Clinic (CBOC), and the Anchorage Vet Center. Additionally, with any necessary assistance from the Veteran, complete records from Dr. G.W. should be obtained. Third, regarding the reopened claim for service connection for an acquired psychiatric disorder, a new VA examination is required, as the December 2010 VA examination report raises questions of a potential pre-existing disability, and the 2008 report from Dr. G.W. does not discuss how the Veteran meets the criteria for a diagnosis of PTSD as set forth in the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM-IV). Finally, consideration of the Veteran's claim for service connection for tinnitus, including as secondary to his acquired psychiatric disorder, remains deferred pending resolution of the Veteran's acquired psychiatric disorder claim, as the tinnitus claim is inextricably intertwined therewith. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's service treatment records from the Air Force Reserves and the North Dakota and Montana Air/Army National Guard. I 2. Verify the periods of the Veteran's service in the Air Force Reserves and the North Dakota and Montana Air/Army National Guard, to include any periods of ACDUTRA and INACDUTRA. Reports of retirement points do not contain the necessary information in this regard. 3. Obtain all treatment records from the Fargo VAMC, and all outstanding VA treatment records from the Anchorage VAMC (last document of record dated May 2010), the Fort Harrison VAMC (last document of record dated April 2010), the Kalispell CBOC (last document or record dated June 2004), and Anchorage Vet Center (last document of record dated July 2008). In this regard, all records dated from May 1996 until May 2011 described in the May 2011 rating decision as "viewed electronically," and the June 9, 2010 treatment report of Dr. K (as discussed in the December 2010 VA examination report) must be obtained. 4. With any necessary assistance from the Veteran, obtain complete records from Dr. G.W. 5. Then schedule the Veteran for a VA psychiatric examination to determine the existence, nature and etiology of any current psychiatric disorder. After examination and review of the claims file, the examiner should address the following: (a) Identify any acquired psychiatric disorder that is currently manifested or is indicated in the records at any time since February 2010. (b) For PTSD, if diagnosed, whether the Veteran's reported stressors support the diagnosis of PTSD under DSM IV. If PTSD is not diagnosed, the examiner should explain why the diagnosis is not supported, and must comment on Dr. G.W.'s February 2013 letter diagnosing PTSD and relating PTSD to the Veteran's purported stressor of assisting in the performance of autopsies during service. (c) (1) For any acquired psychiatric disorder other than PTSD diagnosed, to include depression, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that such disability existed prior to active service. (2) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing acquired psychiatric disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable that any increase was due to the natural progress of the disease. (d) If the examiner renders unfavorable opinions with respect to item (c) above, state whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder other than PTSD had its onset in service, or is otherwise related to service. The examiner should provide a complete rationale for any opinion given. If the examiner determines that an opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. 6. If and only if the action in item 5 above allows for an award of benefits for an acquired psychiatric disorder, the Veteran's claims folder should be forwarded to an appropriate VA examiner for a medical nexus opinion. The examiner must review the claims folder and note that review in the report of examination. The examiner shall address the following: (a) Is it at least as likely as not (50 percent or greater probability) that the current tinnitus was caused (in whole or in part) by the Veteran's service-connected acquired psychiatric disorder? (b) Is it at least as likely as not (50 percent or greater probability) that the current tinnitus was aggravated (made chronically worse) by the Veteran's service-connected acquired psychiatric disorder? The examiner should provide a complete rationale for any opinion given. If the examiner determines that an opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. 7. Then readjudicate the claim, and if the benefits sought on appeal remain denied, issue a supplemental statement of the case. 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). 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 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs