Citation Nr: 1602971 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 10-20 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Whether new and material evidence has been received to reopen a claim for service connection for bowel incontinence. 3. Whether new and material evidence has been received to reopen a claim for service connection for bladder incontinence. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. 5. Entitlement to service connection for bowel incontinence. 6. Entitlement to service connection for bladder incontinence. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from April 2008 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file. The Veteran specifically filed a claim to reopen his service connection claim for PTSD. However, the record also reflects a diagnosis and prior claim for depression. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has broadened the Veteran's claim from just PTSD to include any diagnosed acquired psychiatric disorder, including PTSD and depression. Further, the Veteran appealed the initially assigned ratings for peripheral neuropathy of the bilateral upper and lower extremities and the denial of service connection for elevated cholesterol, which were adjudicated in the April 2008 rating decision. However, on his May 2010 VA Form 9, the Veteran limited his appeal of the April 2008 rating decision to the issues of service connection for bowel and bladder incontinence and glaucoma. The glaucoma claim was subsequently granted in a May 2015 rating decision. Therefore, that issue is also no longer before the Board. Finally, in August 2015, a supplemental statement of the case was issued with regard to the effective date of the grant of entitlement to service connection for glaucoma. In a July 2015 rating decision, the RO determined that a clear and unmistakable error was made in the assignment of the original effective date. However, the review of the effective date appears to have been made sua sponte by the RO, rather than in response to an appeal filed by the Veteran. Thus, even though the RO noted that the earlier effective date was a partial grant of the benefit sought on appeal, the issue is not on appeal. However, the Veteran may still file a notice of disagreement with the effective date for the grant of entitlement to service connection for glaucoma if he so desires. The issues of entitlement to service connection an acquired psychiatric disorder, bowel incontinence, and bladder incontinence are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A March 2005 rating decision denied the claims of entitlement to service connection for PTSD and bowel and bladder incontinence, no new and material evidence was received within one year of the denial, and the Veteran did not appeal the decision. 2. Evidence received since the March 2005 decision is new, relates to unestablished facts necessary to grant the claims, and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for PTSD and bowel and bladder incontinence. CONCLUSIONS OF LAW 1. The March 2005 decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004); currently, 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection PTSD, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for bladder incontinence, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for bowel incontinence, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the Veteran's claims to reopen previously denied claims for service connection for PTSD and bowel and bladder incontinence. Thus, no discussion of VA's duty to notify or assist is necessary with respect to those issues. A March 2005 rating decision denied a claim of entitlement to service connection for PTSD on the basis that there was no currently diagnosed disability and claims of entitlement to service connection for bowel and bladder incontinence on the basis that there was no relationship between the current disabilities and service. The Veteran did not appeal this decision, and no new and material evidence was received within a year of the denial. Consequently, the March 2005 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004); currently, 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence need not address each previously unproven element of a claim to be sufficient to reopen the claim. Shade, 24 Vet. App. at 120. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record in March 2005 consisted of the Veteran's service treatment records and VA treatment notes. Since that time, additional VA and private treatment records have been received, as well as multiple lay statements, including testimony at an October 2015 hearing. The treatment evidence reflects diagnosis and treatment for PTSD. Further, at the hearing, the Veteran testified that his bowel and bladder incontinence first manifested after his diabetes mellitus was diagnosed. In addition, the private treatment records for his bowel and bladder complaints indicate that he has cauda equina secondary to a nonservice-connected lumbar spine disability, but also contain some indications that the Veteran's bowel and bladder incontinence symptoms are not consistent with cauda equina and may have a cause other than his back disability. This evidence is new in that it was not of record in March 2005, and it is material as it addresses the unestablished facts of a current acquired psychiatric disability and a relationship between the Veteran's bowel and bladder disabilities and his military service and/or a service-connected disability. Thus, the evidence raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that new and material evidence sufficient to reopen the claims of entitlement to service connection for an acquired psychiatric disorder and bowel and bladder incontinence has been received, and the claims to this extent only, are granted. ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder, to include PTSD and depression is reopened, and to that extent, the appeal is granted. New and material evidence having been received, the claim for service connection for bladder incontinence is reopened, and to that extent, the appeal is granted. New and material evidence having been received, the claim for service connection for bowel incontinence is reopened, and to that extent, the appeal is granted. REMAND At the August 2015 Board hearing, the Veteran testified to receiving regular VA treatment both at the Beaumont VA Clinic and Jefferson County Vet Center. The most recent VA treatment note in the file is dated in May 2015, and the only treatment notes from the Vet Center are dated in June 2012 and October 2014 even though the June 2012 note says the Veteran began treatment there in February 2012. Therefore, the Veteran should be asked to authorize release of these treatment notes, as necessary, and all treatment notes dated to the present should be associated with the claims file. With regard to the Veteran's bowel and bladder incontinence, the Veteran asserts that these disabilities are secondary to his service-connected diabetes mellitus. Treatment notes establish that the Veteran underwent back surgery and has a diagnosis of cauda equina with which his bowel and bladder disabilities have been associated. However, there is also evidence that indicates that the Veteran does not have cauda equina, to include a normal EMG in August 2003 and a March 2006 VA treatment note that relates that the Veteran's symptoms are not consistent with cauda equina. An October 2002 private treatment record suggests that the cause of the Veteran's sphincter weakness was uncertain and that he had no other symptoms of cauda equina. In light of these facts, the Board determines that the Veteran should be afforded a VA examination to assess the existence and etiology of his bowel and bladder incontinence. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran authorize release of his treatment records from the Jefferson County Vet Center. The Veteran may also submit these treatment notes to VA directly. 2. Associate with the claims file all VA treatment notes for the Veteran dated from May 2015 to the present. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for a VA examination to assess the etiology of his bowel and bladder incontinence. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's bowel incontinence was caused or aggravated beyond its normal progression by his service-connected diabetes mellitus? Is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's bladder incontinence was caused or aggravated beyond its normal progression by the Veteran's service-connected diabetes mellitus? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale must be provided for any opinion offered. 3. Notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of one or more of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). 4. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs