Citation Nr: 1623849 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 10-05 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen the claim for service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus, type II, and if so, whether service connection is warranted. 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes mellitus, type II. 4. Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus, type II. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active military duty from January 1969 to April 1972. The appeal comes before the Board of Veterans Appeals (Board) from rating decisions dated in November 2008 and March 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issues on appeal were previously remanded by the Board in October 2015 in order to schedule the Veteran for a Board hearing. The Veteran testified before the undersigned in a March 2016 Travel Board hearing, the transcript of which is included in the record. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The issues of (1) an increased rating in excess of 50 percent for PTSD; (2) service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes mellitus; (3) service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus; (4) service connection for hypertension as secondary to service-connected diabetes mellitus; and (5) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed April 2009 rating decision denied service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus, type II; the Veteran did not submit a timely notice of disagreement to the rating decision and additional relevant evidence was not received within one year of the rating decision notice. 2. The evidence received since the April 2009 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for peripheral neuropathy of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The April 2009 rating decision, which denied service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The evidence received subsequent to the April 2009 rating decision is new and material; the claim for service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus 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 Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The Veteran's previously denied claim for service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus is reopened, as explained below. As such, there is no prejudice to the Veteran and no further discussion of the VCAA is required regarding those claims. New and Material Evidence Legal Criteria The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 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. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Reopening of Service Connection for Peripheral Neuropathy of the Bilateral Lower Extremities The Veteran was initially denied service connection for peripheral neuropathy of the bilateral lower extremities in an April 2009 rating decision because there was no evidence that the Veteran had a diagnosed disability of peripheral neuropathy. The Veteran was provided notice of the decision and of his appellate rights in May 2009, but he did not perfect a timely appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2015) (the regulations pertaining to the procedures for initiating and perfecting appeals to the Board of unfavorable RO determinations). Therefore, the April 2009 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The evidence of record at the time of the April 2009 rating decision included service treatment records, a February 2012 VA examination, and the Veteran's statements. In support of the current application to reopen service connection for peripheral neuropathy of the lower extremities, the new evidence associated with the record since the April 2009 rating decision includes, in pertinent part, statements dated in March 2016 from the Veteran's treating physicians. Specifically, these statements indicate that the Veteran has been diagnosed with peripheral neuropathy secondary to diabetes. After a review of all the evidence of record, lay and medical, the Board finds that the newly submitted March 2016 statements from the Veteran's physicians are new and material as they relate to an unestablished fact (new diagnoses) necessary to substantiate the claim for service connection for peripheral neuropathy of the bilateral lower extremities. Accordingly, the evidence is new and material, and the claim is reopened. See Cox v. Brown, 5 Vet. App. 95 (1993). The appeal is granted to this extent only. ORDER New and material evidence having been received, the claim for service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus, is reopened. REMAND Rating for PTSD The Veteran's claim for an increased PTSD rating was previously characterized by the Board as "entitlement to an increased rating in for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to September 8, 2007 and 50 percent disabling thereafter." However, upon further review, the Board finds that the Veteran is currently in receipt of a 50 percent rating for the entire increased rating period on appeal. By way of procedural background, the Veteran was initially granted service connection for PTSD and awarded a 30 percent rating in a July 2006 rating decision. On September 4, 2007, the Veteran filed a claim for an increased rating. In March 2008 and November 2008 rating decisions, the RO continued the 30 percent evaluation. The Veteran filed a notice of disagreement with the rating decisions and a statement of the case was issued in October 2014. Thereafter, in a June 2015 rating decision, the RO granted service connection for depression and increased the Veteran's PTSD rating (now including depression) to 50 percent effective September 8, 2007 (the date following the Veteran's colonoscopy, which was found to have increased the Veteran's depression symptoms). As such, the Veteran is currently in receipt of a 50 percent rating for the entire increased rating period on appeal. The Board finds that a remand is warranted to ensure that all relevant evidence has been associated with the claims file and for the issuance of a supplemental statement of the case. In the June 2015 rating decision (which granted a 50 percent rating for the Veteran's psychiatric disorder), the RO indicated that a May 27, 2015 VA examination report had been reviewed which purportedly addressed the Veteran's psychiatric symptoms. Although other May 2015 VA examination reports are of record for the Veteran's back, peripheral neuropathy, male reproductive system, hypertension, gastrointestinal, and rectal disorders, a May 2015 VA psychiatric examination is not of record. The Board notes that a December 2014 VA psychiatric medical opinion is of record; however, the findings in this opinion do not conform with the RO's June 2015 rating decision. This suggests to the Board that the May 2015 VA psychiatric examination has not been associated with the electronic claims file. Bilateral Upper and Lower Extremity Peripheral Neuropathy The Veteran maintains that he has bilateral upper and lower extremity peripheral neuropathy associated with his service-connected diabetes disability. As noted above, the Board has reopened the claim for service connection for bilateral lower extremity peripheral neuropathy. Private treatment records from Dr. Bixler indicated diagnoses of "DM with neuropathy" and "polyneuropathy in diabetes." In a March 2016 statement, Dr. Bixler indicated that the Veteran had diabetes complicated by peripheral polyneuropathy. In a March 2016 statement from Dr. Finn, it was noted that the Veteran had peripheral neuropathy secondary to diabetes. However, the doctors' March 2016 statements and treatment records do not indicate whether the Veteran's peripheral neuropathy is affecting his bilateral upper extremities. Further, it does not appear that neurological testing was conducted to confirm a diagnosis of peripheral neuropathy. The evidence also includes a February 2012 VA examination report. The examiner interviewed the Veteran and performed a physical examination. The examiner stated that the Veteran did not have diagnosis of peripheral neuropathy. When VA concludes that a medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). However, the duty to clarify or supplement missing information is limited to those instances in which the missing information is relevant, factual, and objective, that is not a matter of opinion. Id. at 270. In this case, the treating physicians' records and statements are missing factual information, including whether the Veteran's peripheral neuropathy affects his upper extremities. It is also unclear what methods were used to diagnose the Veteran with polyneuropathy or peripheral neuropathy. As such, the Board finds that an additional VA examination is warranted to clarify, through the use of neurological testing, whether the Veteran has peripheral neuropathy of the bilateral upper and/or lower extremities. Hypertension The Veteran contends that he has hypertension that is secondary to his service-connected diabetes disability. The Veteran was afforded a VA examination in April 2009. The examiner indicated that the Veteran had a diagnosis of hypertension. It was then opined that the Veteran's hypertension was neither "caused by or a result of diabetes." In support of this opinion, the examiner stated that the Veteran had no nephropathy and the Veteran had common risk factors for essential hypertension. The Board finds that the April 2009 VA examination is inadequate. Specifically, the April 2009 medical opinion that the Veteran's hypertension was less likely as not "caused by or a result of" the service-connected diabetes disability does not address aggravation. See Allen v. Brown, 7 Vet. App. 439, 449 (1995) (the Court has suggested that general phrases such as "related to" are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Further, the April 2009 VA examiner's rationale appears to rest, in part, on the absence of nephropathy; however, a March 2016 statement from Dr. Bixler indicates that the Veteran has been diagnosed with chronic kidney disease. Further, treatment records from Dr. Bixler indicated that the Veteran has been diagnosed with nephritis secondary to diabetes. Accordingly, the Board finds that a new VA medical opinion is required on remand. TDIU The Board's remand regarding the claims discussed above could have an outcome regarding the TDIU issue; therefore, the issue of a TDIU is inextricably intertwined with the issues being remanded, and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records not currently of record and associate them with the electronic claims file. 2. The AOJ should associate with the electronic claims file the May 27, 2015, VA psychiatric examination as referenced in the June 2015 rating decision. 3. Afford the Veteran an opportunity to attend a VA diabetic neurological examination. The examiner should review the claims file, including this REMAND. All necessary studies and tests should be conducted. The examiner is asked to address the following question: Is it at least as likely as not (50 percent probability or more) that the Veteran have a current diagnosis diabetic neuropathy affecting any of the upper and/or lower extremities? Why or why not? All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Obtain a medical opinion from an appropriate VA examiner regarding the nature and etiology of the Veteran's currently diagnosed hypertension. A physical examination is not needed unless deemed warranted by the examiner. The claims file, to include a copy of this Remand, must be made available for review of the Veteran's pertinent medical history. The VA examiner is requested to specifically address the following: Is the Veteran's currently diagnosed hypertension at least as likely as not (i.e., 50 percent or greater probability) caused or aggravated by the service-connected diabetes mellitus disability. (Note: the Veteran's private physician, Dr. Bixler, has diagnosed the Veteran with nephritis and chronic kidney disease). All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. When the development requested has been completed, the case should again be reviewed by the AOJ in conjunction with all of the evidence of record. If the benefits sought are not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs