Citation Nr: 1614339	
Decision Date: 04/08/16    Archive Date: 04/25/16

DOCKET NO.  13-09 894	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for type 2 diabetes mellitus (diabetes).

2.  Whether new and material evidence has been submitted to reopen a claim for service connection for chronic obstructive pulmonary disease (COPD).

3.  Whether new and material evidence has been submitted to reopen a claim for service connection for adjustment disorder.

4.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart condition.

5.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left foot condition.

6.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right foot condition.

7.  Entitlement to service connection for diabetes.

8.  Entitlement to service connection for COPD.

9.  Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety disorder, depression and posttraumatic stress disorder (PTSD).

10.  Entitlement to service connection for sinusitis.

11.  Entitlement to service connection for bilateral upper extremity peripheral neuropathy.

12.  Entitlement to service connection for bilateral lower extremity peripheral neuropathy.

13.  Entitlement to a rating in excess of 30 percent for temporomandibular (TM) dysfunction.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Tracie N. Wesner, Associate Counsel

INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty with the United States Navy from September 1963 to September 1967.  The Veteran presented sworn testimony at a hearing before the undersigned in December 2015.  A transcript of that hearing is of record.

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2010 and April 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

To date, the RO has adjudicated the claim regarding sinusitis as involving a petition to reopen a previously denied claim.  In this regard, the RO first originally denied the claim of entitlement to service connection for sinusitis in a March 2010 rating decision.  Although the Veteran did not submit a notice of disagreement within one year of this decision, he did submit relevant information in connection with his claim in September 2010 concerning the location of the naval air base where he was stationed during service, prompting reconsideration of the claim by the RO in April 2011.   This new and material evidence, which was associated with the claims file within one year of the March 2010 rating decision, vitiates its finality.  Accordingly, the March 2010 decision is the one on appeal with regard to this claim.  See 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010).  The Veteran's claim of service connection for sinusitis has been recharacterized accordingly.

The Veteran's claim of service connection for an adjustment disorder, which is being reopened herein, has been recharacterized on the merits as reflected on the title page.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The issues of entitlement to service connection for sinusitis, COPD, diabetes, a psychiatric disorder, bilateral lower extremity peripheral neuropathy and bilateral upper extremity peripheral neuropathy, as well as claims to reopen the previously denied claims of entitlement to service connection for a left foot, right foot and heart disorder, and the claim of entitlement to an increased rating for TM dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's claims of entitlement to service connection for diabetes, COPD and adjustment disorder were denied upon reconsideration following receipt of service personnel records in an October 2004 rating decision; the Veteran did not appeal this determination, and new and material evidence was not received within one year of its issuance.
 
2.  Evidence received more than one year since the October 2004 rating decision includes information that was not previously considered that relates to an unestablished fact necessary to substantiate the claims.


CONCLUSIONS OF LAW

1.  The RO's October 2004 rating decision that denied the claims of entitlement to service connection for diabetes, COPD and adjustment disorder is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2015). 
 
2.  New and material has been received, and the claims of entitlement to service connection for diabetes, COPD and adjustment disorder are reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran attributes his diabetes, COPD, and adjustment disorder to exposure to various chemical agents while participating in the Shipboard Hazards and Defense (SHAD) Project during active duty.  His claims were initial denied in unappealed May 2002 and May 2003 rating decisions.  Subsequently, in June 2004, the Veteran's service personnel records (SPRs) were associated with the claims file, and all three claims were reconsidered and denied on the merits in an October 2004 rating decision.  The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance.  Thus, the October 2004 rating decision became final.  See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104 , 3.156(a)-(b), 20.302, 20.1103.

Evidence received more than one year since the October 2004 rating decision includes a December 2002 article discussing the SHAD Project, received by VA on February 2010.  The article notes that land-based chemical agents testing was performed in Hawaii during the time period in which the Veteran was stationed on Oahu.  This evidence is "new" evidence because it was not previously of record and "material" because it addresses an unestablished element, i.e., the existence of an in-service event or injury that may have caused the Veteran's disorders.  See 38 C.F.R. § 3.156(a).  Additionally, the evidence meets the low threshold for reopening because, when combined with VA assistance, there is a reasonable possibility it can substantiate the claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Therefore, the Veteran's claims of entitlement to service connection for diabetes, COPD and an adjustment disorder are reopened.


ORDER

The claim of entitlement to service connection for diabetes is reopened.

The claim of entitlement to service connection for COPD is reopened.

The claim of entitlement to service connection for adjustment disorder is reopened.
REMAND

The Veteran claims that his sinusitis, diabetes, COPD and psychiatric disorder are due to his reported exposure to herbicides while stationed in Hawaii during the Vietnam War, or alternatively his reported exposure to other harmful agents as part of his claimed participation in the SHAD Project.  Specifically, the Veteran asserts that while he was stationed in Hawaii, he loaded and unloaded C 130 aircraft returning from the Republic of Vietnam, which he believes were contaminated with the herbicide Agent Orange.  See January 2003 Report of Contact; see also July 2015 Written Statement; December 2015 Hearing Tr. at 16.  The Veteran also avers that while stationed in Oahu, Hawaii, he was exposed to dangerous chemical agents used in the SHAD Project.  See March 2004 Written Statement; see also December 2015 Hearing Tr. at 9.

The Board finds that remand is necessary to complete additional development with regard to the Veteran's claims.  The evidence of record indicates that the Veteran served on Oahu, Hawaii during the time that land-based and ship-based SHAD Project testing was being conducted near that location.  Accordingly, on remand, the AOJ must follow the procedures outlined in the VA Adjudication Procedure Manual (M21-1) in order to attempt to verify the Veteran's participation in project SHAD.  See M21-1, Part IV, Subpart ii,1.I.7.  Additionally, the AOJ should follow M21-1 procedures in order to attempt to verify the Veteran's reported exposure to Agent Orange on remand.  See M21-1, IV.ii.1.H.7.a.  

During his hearing before the undersigned, the Veteran identified various health care providers who have treated him in connection with the conditions at issue.  Attempts should be made to obtain medical treatment records from these providers on remand.  38 C.F.R. § 3.159.

The Board notes that there is evidence of record suggesting a causal link between the Veteran's psychiatric disorder and his service-connected TM dysfunction.  There are multiple instances in the record where the Veteran was found to have a psychiatric condition (an anxiety disorder, depression and PTSD) due to his chronic pain and medical conditions, including his TM pain and dysfunction.  See March 2001, May 2002, October 2002, April 2003, November 2005, February 2010, February 2015 VA Medical Records.  The Veteran also reported having flashbacks and intrusive recollections of military service.  See January 2015 VA Medical Record.  As this evidence suggests that the Veteran's psychiatric disorder is related to service or his service-connected TM dysfunction, a VA examination and medical opinion should be obtained on remand.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Finally, the remaining issues on appeal must be remanded for the issuance of a Statement of the Case (SOC).  In an October 2015 rating decision, the AOJ denied an increased rating for the Veteran's TM dysfunction, denied service connection for bilateral lower extremity peripheral neuropathy and bilateral upper extremity peripheral neuropathy, and continued the denial of service connection for left foot, right foot and heart disorders because the evidence submitted was not new and material.  Later the same month, the Veteran submitted a Notice of Disagreement (NOD) with the decision on these issues.  As the AOJ has not yet issued a SOC, such action must be accomplished on remand.  See Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Issue to the Veteran and his representative a SOC regarding the issues of entitlement to an increased rating for TM dysfunction, entitlement to service connection for bilateral lower extremity peripheral neuropathy and bilateral upper extremity peripheral neuropathy, and whether new and material evidence has been received to reopen the previously denied claims of entitlement to service connection a left foot, right foot and heart disorders.  He should be advised of the requirements to timely perfect an appeal.  
2.  Obtain all outstanding VA treatment records.

3.  After securing any necessary authorization from the Veteran, obtain all records from Dr. George Smith, Dr. Paul Jackson, Dr. William Spaulding, Matthew Walker Comprehensive Health Center and TrustPoint Hospital of Murfreesboro.

4.  Ask the Veteran to identify any additional medical care providers who treated him for his claimed conditions.  After securing the necessary release, these records should be sought.  

5.  Make attempts to verify the Veteran's participation in Project SHAD in accordance with the procedures set forth in the M21-1.  See M21-1, IV.ii.1.I.7.e.  All such attempts and responses should be documented in the claims file.

6.  Make attempts to verify the Veteran's claimed exposure to the herbicide Agent Orange in accordance with the procedures set forth in the M21-1.  See M21-1, IV.ii.1.H.7.a.  All such attempts and responses should be documented in the claims file.

7.  After obtaining the requested records (to the extent possible), schedule the Veteran for an appropriate VA examination to address the current nature and etiology of his psychiatric disorder.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.  All findings should be reported in detail.  

After a review of the claims file, including the lay statements provided by the Veteran, the examiner should address the following:

(1) whether the Veteran's symptomatology and presentation meets the diagnostic criteria for PTSD under the DSM-5; and, if so, the underlying stressor supporting that diagnosis; 

(2) whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's diagnosed psychiatric disorders had their onset in service or are otherwise related to an event, injury or disease incurred in service, including participation in Project SHAD and/or exposure to Agent Orange, if verified; 

(3)  whether it is at least as likely as not that any of the Veteran's diagnosed psychiatric disorders are caused by his service-connected TM dysfunction; and 

(4) whether it is at least as likely as not that any of the Veteran's diagnosed psychiatric disorders are aggravated (permanently worsened beyond the natural progress of the disease) by his service-connected TM dysfunction.

In reaching his or her conclusions, the VA examiner should specifically review and consider the lay statements of the Veteran, as well as the VA medical records noting that his psychiatric symptoms are related to chronic pain and/or medical conditions, including his TM dysfunction.  See March 2001, May 2002, October 2002, April 2003, November 2005, February 2010 and February 2015 VA Medical Records.

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner should state why this is so.

8.  After completing the above development, including any additional development that may be warranted, readjudicate the issues of entitlement to service connection for sinusitis, diabetes, COPD and an acquired psychiatric disorder.  If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration.

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).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs