Citation Nr: 1638060 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 14-13 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for acquired flatfeet, claimed as fallen arches. 2. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. In May 2016, he testified in a Board hearing before the undersigned at the RO, and the transcript is of record. The record reflects that the Veteran has been diagnosed with various psychiatric disorders, including paranoid schizophrenia and PTSD. As such, the Board has restyled the claim more broadly to reflect all potential current diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). As a procedural matter, the Veteran contends in a May 2016 statement that his "pension non service connected disabilities under appellate review should be increased." The Board interprets this as a request for a higher rating for pension based on his nonservice-connected disabilities. At this juncture, the Board does not have jurisdiction over this issue. Additional monies based on pension are derived from a special monthly benefit. No such claim for special monthly pension has been submitted. If the Veteran desires to file such a claim, he should do so with specificity at the RO. The issues of service connection for an acquired psychiatric disorder and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In November 1993, the RO denied the claim for service connection for fallen arches. The Veteran was notified of this decision and he did not file an appeal. That decision became final after one year. 2. Evidence received since the November 1993 decision is new but not material and does not support the application to reopen. CONCLUSION OF LAW New and material evidence to reopen the claim for service connection for acquired flatfeet has not been received. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Historically, in June 1993, the Veteran submitted a claim for service connection for fallen arches, which was denied in November 1993 on the basis that a review of the service treatment records were completely negative as to any complaint or treatment for fallen arches. The evidence of record at the time of the November 1993 decision consisted of the Veteran's STRs, the Application for Compensation and/or Pension Benefits received on June 18, 1993, and VA medical records. The rating decision also noted that the Veteran failed to report for a VA examination of the feet. He was notified of the rating decision and he did not perfect an appeal. As such, the decision is final. The additional evidence received in support of the application to reopen consists of written lay statements submitted in March and May 2011, VA medical center treatment records from Pittsburgh (2001 to 2003) and East Orange (2004 to 2014), and the Veteran's testimony before the Board in May 2016. After a review, the evidence submitted since the November 1993 rating decision is new because this evidence was not part of the record at the time of the decision. However, this evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claims for service connection for acquired flatfoot. Specifically, the evidence does not address whether any current diagnosis of fallen arches or acquired flatfoot is related to active service. Rather, the only connection to service is the statements by the Veteran, who has not shown to possess the type of medical expertise that would be necessary to diagnose flatfoot or to opine on the underlying cause of flatfoot or fallen arches. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the evidence submitted since the November 1993 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for acquired flatfoot. Accordingly, new and material evidence has not been received to reopen service connection for acquired flatfoot and the appeal is denied. Finally, upon receipt of a complete or substantially complete application for benefits, 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. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For applications to reopen a claim based on new and material evidence, VA has a duty to notify the claimant of the definition of new and material evidence set forth in 38 C.F.R. § 3.156 and the basis upon which the claim for service connection had been previously denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, regarding the issue of whether new and material evidence had been received, the RO provided a notice letter to the Veteran in April 2011. The letter notified him of the definition of new and material evidence set forth in 38 C.F.R. § 3.156 and informed him of the bases for the previous denial of the service connection claim. The letter notified him of what information and evidence must be submitted to substantiate claim for service connection, as well as what information and evidence he must provide and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his flatfoot claim to the RO. He was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the letter. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his flatfoot claim. There has been no allegation from the Veteran or his representative that he has been prejudiced by any of notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering this claim on its merits. The duty to notify provisions have been fulfilled with respect to the flatfoot claim, and any defective notice is harmless and nonprejudicial to the Veteran. Further, all relevant evidence has been obtained with regard to the claim to reopen service connection for flatfoot, and the duty to assist requirements have been satisfied. All available service treatment records and VA medical records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to this claim. The duty to provide a medical examination and/or obtain a medical opinion in a claim for disability compensation benefits does not apply in cases involving an attempt to reopen a finally adjudicated claim unless new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(iii); see Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). Thus, the duties to notify and assist have been met and no further notice or assistance is required in the development of this claim. ORDER New and material evidence not having been received, the appeal to reopen service connection for acquired flatfeet is denied. REMAND With respect to the remaining claims, a remand is needed. Psychiatric Disorder. The Veteran contends that in addition to paranoid schizophrenia, he also has PTSD. VA treatment records indicate that he had diagnoses of chronic PTSD and generalized anxiety disorder in 2013, although it is unclear when such diagnoses were made. He asserts that he experienced a lot of racism at Ft. Jackson and was jumped by some men during basic training and while stationed in Germany where his friend was cut in the face with a straight razor. These stressor events, related to personal assault, requires special development which has not been accomplished here. Remand is therefore required to provide the Veteran with required notice regarding personal assault. 38 C.F.R. § 3.304(f). Hypertension. The Veteran has asserted that the hypertension is due to an acquired psychiatric disorder. He contends that stress and paranoia made his heart rate go up, which caused the hypertension. As such, the hypertension claim must be deferred pending resolution of the acquired psychiatric disorder claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a notice letter in connection with his claim for service connection for PTSD based, in part, on an alleged in-service personal assault. The letter should inform him of (a) the information and evidence that is necessary to substantiate the PTSD claim based on personal assault; (b) the information and evidence that VA will seek to provide; and (3) the information and evidence that he is expected to provide. Specifically, this letter should be compliant with 38 C.F.R. § 3.304 advising the Veteran of specific examples of alternative forms of evidence to corroborate his account of an in-service assault and that behavioral changes may constitute credible supporting evidence of the stressor. This letter should also include a VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Personal Assault). 2. Obtain all outstanding relevant mental health treatment records of the Veteran, to include from the Pittsburgh and East Orange VAMCs. All records or responses should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. Then, if deemed necessary, schedule the Veteran for an examination to assist in determining the nature and etiology of any currently-diagnosed psychiatric disorder(s). The entire claims file, including a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. With regard to the Veteran's claimed personal assault, the examiner should indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incident(s) could possibly indicate the occurrence of the alleged in-service stressor. (a) Determine the diagnoses of any currently-manifested psychiatric disorder(s). If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether the alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether it is at least as likely as not that there is a link between the current symptomatology and the in-service stressor found to be established by the record and found sufficient to produce PTSD. (b) If a psychiatric disability other than PTSD is diagnosed (such as anxiety, depression, etc.), the examiner should indicate whether the psychiatric disorder is at least as likely as not (50 percent or greater probability) related to the Veteran's service. A thorough rationale should be provided for all opinions expressed, including consideration and discussion of previous diagnoses of paranoid schizophrenia, PTSD, and generalized anxiety disorder. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims in light of all the evidence of record. If service connection is established for an acquired psychiatric disorder, the AOJ should consider whether additional development, to include a VA examination on secondary service connection, is necessary for the hypertension claim. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs