Citation Nr: 1637409 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 13-11 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for malaria. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for psychoneurosis characterized by anxiety, claimed as an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), and if so, service connection for the same. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, and if so, service connection for the same. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, to include as secondary to herbicide exposure, and if so, service connection for the same. 5. Entitlement to service connection for neuropathy of the feet and toes. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jeffrey Bunten, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to August 1970. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2011 rating decision, the RO declined to reopen the Veteran's previously denied claims of entitlement to service connection for malaria, hypertension, and psychoneurosis characterized by anxiety, reopened and denied the Veteran's previously denied claim of entitlement to service connection for diabetes mellitus, and denied the claim of entitlement to service connection for peripheral neuropathy of the feet and toes. In a June 2013 rating decision, the RO denied a TDIU. In April 2016, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for psychoneurosis characterized by anxiety, claimed as an acquired psychiatric disability to include PTSD; diabetes mellitus and hypertension, both to include as secondary to herbicide exposure; neuropathy of the feet and toes; and entitlement to a TDIU, addressed in the REMAND portion of the decision below, are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a June 1972 rating decision, the RO denied the Veteran's claim of entitlement to service connection for malaria and psychoneurosis characterized by anxiety; he did not appeal. 2. In a May 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for diabetes mellitus; he did not appeal. 3. In a September 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for hypertension; he did not appeal. 4. The evidence received since the June 1972 rating decision, as to the claim of entitlement to service connection for malaria, is not cumulative or redundant of evidence previously of record; however, it does not raise a reasonable possibility of substantiating the claim. 5. The evidence received since the June 1972 rating decision, as to the claim of entitlement to service connection for psychoneurosis characterized by anxiety, claimed as an acquired psychiatric disability to include PTSD, is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim. 6. The evidence received since the May 2008 and September 2008 rating decisions, as to the claims of entitlement to service connection for diabetes mellitus and hypertension, each to include as secondary to herbicide exposure, respectively, is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The June 1972 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160 (d), 20.302 (2015). 2. The May 2008 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160 (d), 20.302 (2015). 3. The September 2008 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160 (d), 20.302 (2015). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for malaria. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.201 (2015). 5. New and material evidence has been received to reopen the claims of entitlement to service connection for psychoneurosis characterized by anxiety, claimed as an acquired psychiatric disability to include PTSD, and diabetes mellitus and hypertension, both to include as secondary to exposure. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.201 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, and prior to an initial unfavorable decision, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the only claim denied herein, the VCAA notice requirements were satisfied by virtue of letters dated in August 2010 and November 2010, sent to the Veteran prior to the initial unfavorable decision dated in January 2011. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence, as well as how disability ratings and effective dates are assigned. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the claim is not reopened herein, however, a VA examination is not warranted. See Paralyzed Veterans of America v. Sec'y of Veterans Affairs (PVA), 345 F. 3d 1134, 1341-43 (Fed. Cir. 2003) (statutory language and legislative history support regulation interpretation that VA has no duty to provide a medical examination until the case is reopened). The claims file, related to the only claim denied herein, contains the Veteran's service treatment records, reports of VA examinations, and the Veteran's private treatment records, including those contained in his treatment records associated with his claim for disability benefits from the Social Security Administration (SSA). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. New and Material Evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In this case, the initial denial of the Veteran's claims of entitlement to service connection for malaria and psychoneurosis characterized by anxiety was in June 1972. The initial denial of the Veteran's claim of entitlement to service connection for diabetes mellitus was in May 2008, and the initial denial of his claim of entitlement to service connection for hypertension was in September 2008. Within one year of those rating decisions, the Veteran did not express disagreement with the decisions, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate periods. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156 (b); 20.201; see Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). As such, the June 1972, May 2008, and September 2008 rating decisions became final. VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, 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. Relevant evidence considered at that time of the June 1972 rating decision included the Veteran's service treatment records, reports of April 1972 VA examinations, and the Veteran's statements. Relevant evidence considered at that time of the May 2008 and September 2008 rating decisions included the Veteran's service treatment records, his private treatment records, including those contained in his treatment records associated with his claim for disability benefits from the SSA, and the Veteran's statements. The RO, in June 1972, found no evidence of post-service malaria and no basis upon which to relate his post-service psychoneurosis characterized by anxiety with service. The RO, in May 2008, found no evidence of a diagnosis of diabetes mellitus, and the RO, in September 2008, found no basis upon which to relate the Veteran's post-service hypertension with service. Relevant evidence added to the record since the time of the June 1972, May 2008, and September 2008 rating decisions includes the Veteran's statements, including those made during his April 2016 Board hearing, additional private treatment records, including additional records submitted by the SSA, and reports of VA examinations. In pertinent part, the newly received evidence includes lay and clinical reports of the Veteran's psychiatric complaints and hypertension, and the results of his February 2013 VA examination for diabetes mellitus citing older test results without clinical corroboration. This new evidence is also material, as VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. In this case, the new evidence triggers VA's duty to assist by seeking adequate etiological opinions. Shade, 24 Vet. App. 110, 118. Accordingly, the claims of entitlement to service connection for psychoneurosis characterized by anxiety, claimed as an acquired psychiatric disability to include PTSD, and diabetes mellitus and hypertension, both to include as secondary to herbicide exposure, are reopened. However, there is no such new and material evidence as to the claim of entitlement to service connection for malaria. No records dated since June 1972 contain a diagnosis of malaria. During the Veteran's April 2016 Board hearing, he asserted that he had been told by a physician that he had all of the symptoms of malaria and was hospitalized for symptoms of the same, and asserted that he had experienced a "few bouts" of malaria when he first got home from service; however, he denied being currently treated for malaria. No party asserts, and there is no clinical or lay evidence indicating, that the Veteran has been diagnosed with malaria during the appellate period. A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). Thus, while the relevant evidence, the Veteran's April 2016 Board hearing testimony as to in-service malaria and a "few bouts" of malaria when he first got home from service, is new, as it was not previously before agency decisionmakers; the evidence does not relate to an unestablished fact necessary to substantiate the claim, evidence of current malaria. The evidence is thus not new and material evidence sufficient to reopen the Veteran's previously denied claim, with respect to malaria. As the Veteran denies current malaria, or malaria during the course of this appeal, and there is no evidence of such, VA's duty to assist is not triggered by seeking additional medical comment or report of examination, as such would not raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. 110, 118. Accordingly, the claim of entitlement to service connection for malaria is not reopened. ORDER New and material evidence having not been received, the claim of entitlement to service connection for malaria is not reopened; and the claim is denied New and material evidence having been received, the claim of entitlement to service connection for psychoneurosis characterized by anxiety, claimed as an acquired psychiatric disability to include PTSD, is reopened; and to that extent only, the claim is granted. New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is reopened; and to that extent only, the claim is granted. New and material evidence having been received, the claim of entitlement to service connection for hypertension, to include as secondary to herbicide exposure, is reopened; and to that extent only, the claim is granted. REMAND As to the Veteran's claim of entitlement to service connection for psychoneurosis characterized by anxiety, claimed as an acquired psychiatric disability to include PTSD, additional medical comment is required. At the time of his undated service separation Report of Medical History, the Veteran reported depression, excessive worry, and nervousness. Report of the Veteran's April 1972 VA examination indicates that he was tense and anxious and complained of sleep problems, among other symptoms, and reported that he was subject to mortar fire during service; the examiner diagnosed the Veteran with psychoneurosis characterized by anxiety, moderate (combat reaction). In February 2010 private treatment records, the Veteran reported that he believed that he was bipolar. In April 2011 private treatment records, the physician wrote that he had treated the Veteran for affective disorder, and noted that he had been having severe depression and anxiety, and had been diagnosed with bipolar disorder, treated with medication. In an October 2011 statement, the Veteran reported that he experienced a traumatic event, and had fear for his life during service in the Republic of Vietnam, from enemy mortar attacks. He reported that he was in the hospital at a time from December 1969 to August 1970 at An Khe, Vietnam, when mortar attacks hit and he had to be moved to bunkers. He also reported that he was at a pump station at a time from December 1969 to August 1970 along the Ho Chi Minh trail, in Vietnam, and the station was hit and the buildings collapsed; and that he was stuck inside and had to be dug out. He complained of post-service anxiety and nightmares. On VA examination in February 2013, the Veteran was diagnosed with alcohol dependence with physiological dependence; and the examiner reported that if the Veteran's trauma was verified, such would meet the diagnostic criteria for a diagnosis of PTSD, however, his reported symptoms did not support such a diagnosis. On remand, the AOJ should attempt to verify the in-service events described above and afford the Veteran another VA examination that considers the etiology of the psychiatric disorders found present during the current appeal, affective disorder and bipolar disorder, and considers that the Veteran's reported depression, excessive worry, and nervousness at the time of separation from service, his psychiatric symptoms reported on VA examination in April 1972, and his lay statements of psychiatric symptoms since. As to the Veteran's claim of entitlement to service connection for diabetes mellitus, additional medical comment is required. January 2007 private treatment records indicate that the Veteran was evaluated for possible diabetes mellitus, pending results of the A1c test. On VA examination in February 2013, the Veteran was diagnosed with impaired fasting glucose, as of January 2007. The portion of the examination report indicating test results used to make the diagnosis of diabetes mellitus was left blank. The examiner noted a May 2011 fasting plasma glucose result. During his April 2016 Board hearing, the Veteran reported that his blood sugar levels were always above 130 and his A1c was close to 7, but that he was unsure about his diagnosis of diabetes mellitus. On remand, the AOJ should afford the Veteran another VA examination, with complete laboratory testing, to determine if the Veteran indeed has diabetes mellitus. As the Veteran has service in the Republic of Vietnam, determined by his DD214, his service separation document, indicating service in the United States Army Pacific (USARPAC) and his service treatment records containing an entry indicating that he was treated at the 17th Field Hospital at Army Post Office (APO) 96294, an APO code used to denote An Khe, Vietnam, if a diagnosis of diabetes mellitus is confirmed, service connection is warranted without comment as to etiology. As to the Veteran's claim of entitlement to service connection for hypertension, additional medical comment is required. January 2007 private treatment records indicate that the Veteran presented for treatment with a history of hypertension. March 2008 private treatment records indicate that the Veteran was currently using medication to control his hypertension. During his April 2016 Board hearing, the Veteran reported that he had been diagnosed with hypertension 10 years prior. On remand, the AOJ should afford the Veteran a VA examination to determine the etiology of his hypertension, considering his exposure to herbicides. As to the Veteran's claim of entitlement to service connection for neuropathy of the feet and toes, additional medical comment is required. July 2009 private treatment records indicate that the Veteran was treated for alcoholic neuropathy; and additional private treatment records dated at that time demonstrate that he underwent electromyography (EMG) and results were consistent with sensory motor neuropathy. During his April 2016 Board hearing, the Veteran asserted that he had first noticed his neuropathy symptoms 25 years prior. On remand, the AOJ should afford the Veteran a VA examination to determine the etiology of his neuropathy of the feet and toes, considering his exposure to herbicides, his possible diabetes mellitus, and his lay statements indicating long-term neuropathy that may have preceded or been coincident to drinking alcohol. The Veteran has perfected his appeal of his claim of entitlement to a TDIU, however, to date; he is not service-connected for any disabilities. It is possible that as a result of the development directed herein, service connection may be awarded for a number of disabilities. The AOJ provided the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in April 2013. To date, the Veteran has not responded. On remand, the AOJ should provide the Veteran a final opportunity to submit a completed VA Form 21-8940 and then forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to the Veteran's employers listed on any completed VA Form 21-8940. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and inform him that of record are his private treatment records from Drs. Rice, Snyder, and Spezia, either submitted by the Veteran or by the SSA and afford him an opportunity to supplement the record with any updated relevant private treatment records. Provide him with Forms 21-4142, Authorization and Consent to Release Information to the VA, and request that he return such for any records he would like VA to obtain on his behalf. 2. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and request that he return such. Forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to the Veteran's employers listed on any completed VA Form 21-8940. 3. Obtain and associate with the Veteran's claims file his service personnel records and attempt to verify his presence at any mortar attacks while hospitalized at a time from December 1969 to August 1970 at An Khe, Vietnam, and while at a pump station along the Ho Chi Minh trail, in Vietnam, at a time from December 1969 to August 1970. 4. Contact the Joint Services and Records Research Center (JSRRC) and make appropriate efforts to corroborate the Veteran's account of incurring mortar attacks while hospitalized at a time from December 1969 to August 1970 at An Khe, Vietnam, and while at a pump station along the Ho Chi Minh trail, in Vietnam, at a time from December 1969 to August 1970. 5. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's acquired psychiatric disorder, to include PTSD, considering 38 C.F.R. § 3.304(f) (2105) and the Disability Benefits Questionnaire (DBQ) outlining such. Specifically, while the VA examiner, in February 2013, reported that if Veteran's trauma was verified, such would meet the diagnostic criteria for a diagnosis of PTSD, the examiner is herein reminded instead that if a stressor claimed by a Veteran is related to his "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Id. All indicated tests and studies should be conducted. The emxianer should diagnose the Veteran with any appropriate acquired psychiatric disorder and all psychiatric diagnoses of record, including affective disorder, PTSD, and bipolar disorder, should be discussed. The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's acquired psychiatric disorder, to include PTSD, was incurred in active service, or is otherwise related to service. The examiner should consider the Veteran's reported depression, excessive worry, and nervousness at the time of his separation from service, his report of in-service and post-service psychiatric symptoms and diagnosis of psychoneurosis characterized by anxiety, moderate (combat reaction) on VA examination in April 1972, his private physician's April 2011 letter indicating that he had treated the Veteran for affective disorder, and noted that he had been having severe depression and anxiety, and had been diagnosed with bipolar disorder, treated with medication, his statements describing his in-service traumatic events, that he had fear for his life during service in the Republic of Vietnam, from enemy mortar attacks, that was in the hospital at a time from December 1969 to August 1970 at An Khe, Vietnam, when mortar attacks hit and he had to be moved to bunkers, and that he was at a pump station at a time from December 1969 to August 1970 along the Ho Chi Minh trail, in Vietnam, and the station was hit and the buildings collapsed; and that he was stuck inside and had to be dug out, and his lay statements of psychiatric symptoms since service. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. The examiner must provide a complete rationale for all opinions provided. 6. Schedule the Veteran for a VA examination with an appropriate examiner to determine if the Veteran has a diagnosis of diabetes mellitus. All indicated tests and studies should be conducted, specifically, the examiner should conduct an A1c test and any other tests diagnostic for diabetes mellitus and not base any decision as to whether the Veteran has diabetes mellitus on the older test results of record. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. The examiner must provide a complete rationale for all opinions provided. 7. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his hypertension. All indicated tests and studies should be conducted. The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's hypertension was incurred in active service, or is otherwise related to service, considering the Veteran's in-service exposure to herbicides and lay statements of a long history of hypertension. If the Veteran has a diagnosis of diabetes mellitus, the examiner should also opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's hypertension was either (a) caused by, or (b) aggravated (i.e., permanently worsened) by his diabetes mellitus. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. The examiner must provide a complete rationale for all opinions provided. 8. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his neuropathy of the feet and toes. All indicated tests and studies should be conducted. The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's neuropathy of the feet and toes was incurred in active service, or is otherwise related to service, considering the Veteran's in-service exposure to herbicides and lay statements indicating long-term neuropathy that may have preceded or been coincident to drinking alcohol. If the Veteran has a diagnosis of diabetes mellitus, the examiner should also opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's neuropathy of the feet and toes was either (a) caused by, or (b) aggravated (i.e., permanently worsened) by his diabetes mellitus. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. The examiner must provide a complete rationale for all opinions provided. 9. After completing the above actions, and any other development as may be indicated, readjudicate the Veteran's claims. If any claim remains denied, the Veteran and his attorney should be issued a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). These claims 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 2015). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs