Citation Nr: 1603984	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  10-40 021	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for tinnitus.

2.  Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and, if so, whether service connection for an acquired psychiatric disorder, to include PTSD, should be granted.

3.  Entitlement to service connection for a disability caused by muscle stiffness.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

C. Samuelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 2001 to November 2004, including service in Iraq.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA).

As the record reflects diagnoses of anxiety and depression, the issue of entitlement to service connection for PTSD has been broadened to include other psychiatric disabilities and is recharacterized accordingly.  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.) 

The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and entitlement to service connection for a disability caused by muscle stiffness are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On December 9, 2015, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, requested withdrawal of the appeal of entitlement to a disability rating in excess of 10 percent for tinnitus.

2.  A rating decision issued in June 2007 denied service connection for PTSD.  Though the Veteran initiated an appeal of this decision, he did not timely perfect an appeal, and the decision became final. 

3.  Evidence added to the record since the final June 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of entitlement to a disability rating in excess of 10 percent for tinnitus have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

2.  The June 2007 rating decision that denied the Veteran's claim of service connection for PTSD is final.  38 U.S.C.A. § 7105(c) (West 2014).

3.  New and material evidence has been received to reopen the claim of service connection for PTSD.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawn Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2015).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.
At the Veteran's December 2015 travel board hearing, the Veteran, through his representative, requested to withdraw his appeal of the issue of entitlement to a disability rating in excess of 10 percent for tinnitus.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed.

II.  New and Material Evidence

New evidence is defined as evidence not previously submitted to agency decision makers, and 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. 38 C.F.R. § 3.156(a).  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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.

The Veteran's claim for service connection for PTSD was most recently denied in a June 2007 rating decision because the RO determined that there was no evidence of a current disability.  The Veteran did not file a timely Substantive Appeal and, therefore, the June 2007 rating decision became final.  38 C.F.R. §§ 20.200, 20.202.  Accordingly, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision.  38 U.S.C.A. § 7105.

The absence of evidence of a current disability was an element of service connection upon which the prior denial was based.  Since June 2007, new evidence has been added to the claims file which is material to the Veteran's claims for service connection for PTSD.  Specifically, an August 2008 examination by Dave Cole Ph.D. contained in the Social Security Administration records showed a diagnosis PTSD.  A June 2009 VA treatment record also showed a diagnosis of PTSD.

These records reflect the presence of current disability, which is an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim, as contemplated by the holding in Shade.  Accordingly, the Board reopens the Veteran's claim of entitlement to service PTSD for de novo review on the merits.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.


ORDER

The appeal of the issue of entitlement to a disability rating in excess of 10 percent for tinnitus is dismissed.

The Veteran's claim for service connection for PTSD is reopened, and, to this extent only, the appeal is granted.  


REMAND

The Veteran was afforded a VA PTSD examination in June 2007.  The June 2007 examiner determined that the Veteran did not have a diagnosis of PTSD. Since the June 2007 VA examination, the Veteran has been diagnosed with PTSD and depression.  In light of the treatment records showing diagnoses of PTSD, anxiety, and depression, the Board finds that a new VA medical examination is warranted to address these diagnoses and whether they are related to service.

The Veteran served in Southwest Asia.  Although he has not asserted service connection for a disability caused by muscle stiffness based on his service in the Persian Gulf, courts have held that because proceedings before VA are nonadversarial, VA's obligation to analyze claims goes beyond the arguments explicitly made.  See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing.).

Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. § 3.317(a)(1).  To date, the Veteran's claim for a disability caused by muscle stiffness has not been considered under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  In light of the foregoing, the Board finds that the AOJ must provide the Veteran with appropriate notice of the evidence needed to establish service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, and consider the matter accordingly.  

The case is REMANDED for the following action:

1.  Issue a notice letter that complies with the requirements of 38 U.S.C.A. §§ 1117, 5103(a) (West 2014) and 38 C.F.R. §§ 3.317, 3.159(b) (2015) that includes an explanation as to the information or evidence needed to establish a claim for service connection due to an undiagnosed illness, or medically unexplained chronic multi-symptoms illness.

2.  Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his acquired psychiatric disorder(s), to include PTSD, and muscle stiffness that are not already of record.  Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file.  Any negative response should be in writing and associated with the claims file.  

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of acquired psychiatric disorder(s), to include PTSD, and muscle stiffness condition.  He should be provided an appropriate amount of time to submit this lay evidence.

4.  After associating all outstanding records regarding the Veteran's psychiatric disorder(s) with the claims folder, afford the Veteran an appropriate VA examination.  The examiner should identify all psychiatric disabilities found to be present.  Thereafter, the examiner should opine as to whether it is at least as likely as not that the Veteran has a psychiatric disability that is related to an in-service disease or injury, or as to PTSD is related to an in-service stressor.  

In responding to this question, the examiner should note the Veteran's records showing diagnoses of PTSD, anxiety, and depression.

The examiner should give a reasoned explanation for all opinions provided.  If the examiner is unable to provide a medical opinion, then he or she should provide statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  

5.  After completing all development set forth in paragraphs 1 to 3 above, arrange for the Veteran to undergo a VA examination to address his claimed disability caused by muscle stiffness.

The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies.  Then, based on the results of the examination, the examiner is asked to indicate whether the Veteran has an undiagnosed illness or a medically unexplained chronic multi-symptom illness, and/or a disability due to presumed environmental exposures experienced by the Veteran during service in Southwest Asia.

In addressing this, the examiner is asked to articulate the reasons underpinning the conclusions expressed.  That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion.  

6.  Then readjudicate the appeal.  If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board.

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 2014).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals














Department of Veterans Affairs