Citation Nr: 1746978	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  15-42 713A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for asthma.  

2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for essential tremor-bilateral hands.  

3. Entitlement to service connection for essential tremor-bilateral hands.  

4. Entitlement to an initial rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD), major depressive disorder and generalized anxiety disorder.

5. Entitlement to an effective date earlier than October 27, 2014 for the award of service connection for PTSD, major depressive disorder and generalized anxiety disorder.

6. Entitlement to a total disability rating based upon individual unemployability (TDIU).
REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Victoria A. Narducci, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from February 1952 to November 1953. He received the Combat Infantry Badge. 

The matter presently before the Board of Veterans' Appeals (Board) is on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota (Agency of Original Jurisdiction (AOJ)).

As addressed in the REMAND below, the issues of entitlement to an initial rating greater than 50 percent for service-connected PTSD, major depressive disorder and generalized anxiety disorder, entitlement to an effective date earlier than October 27, 2014 for the award of service connection for PTSD, major depressive disorder and generalized anxiety disorder, and entitlement to TDIU are listed on the title page for procedural purposes only.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues entitlement to an initial rating greater than 50 percent for service-connected PTSD, major depressive disorder and generalized anxiety disorder, entitlement to an effective date earlier than October 27, 2014 for the award of service connection for PTSD, major depressive disorder and generalized anxiety disorder, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. By letter dated June 1954, the AOJ administratively denied service connection for asthma on the basis that the Veteran did not submit to a VA examination. The Veteran was notified of that decision, but did not initiate an appeal, new and material evidence was not submitted within one year of that rating decision. 

2. Evidence received since the June 1954 decision denying service connection for asthma is cumulative and redundant of the evidence of record at the time of the June 1954 final decision and does not raise a reasonable possibility of substantiating the claim as it does not relate to an unestablished fact.

3. In a rating decision dated August 2005, the AOJ denied service connection for essential tremor-bilateral hands on the basis that the Veteran that there was no relationship between the essential tremor-bilateral hands and his military service. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not submitted within one year of that rating decision. 

4. Evidence of record since the August 2005 AOJ rating decision denying service connection for is new and material as it includes medical opinion that the Veteran's essential tremors are aggravated by service-connected PTSD.

4. The Veteran's essential tremors are aggravated by service-connected PTSD.


CONCLUSIONS OF LAW

1. The June 1954 rating decision that denied service connection for asthma is final. See 38 U.S.C. §§ 705, 709 (1952); 38 C.F.R. § 19.5 (1949).

2. As evidence received since the June 1954 final rating decision is not new and material, the criteria for reopening the previously denied claim for service connection for asthma are not met. 38 U.S.C.A. §§ 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

3. The August 2005 rating decision that denied service connection for essential tremor-bilateral hands is final. 38 U.S.C.A. §§7104(b); 7252 (West 2014).

4. As evidence received since the August 2005 final rating decision is new and material, the criteria for reopening the previously denied claim for service connection for essential tremor-bilateral hands are met. 38 U.S.C.A. §§ 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

5. The criteria for entitlement to service connection for essential tremors have been met.  38 C.F.R. § 3.310 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction).

As it pertains to development, the Board observes that some of the Veteran's service treatment records (STRs) have been destroyed due to no fault of the Veteran. VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the AOJ obtained available STRs in 1953 and received specific notice from the 5th Regimental Combat Team that STRs had been destroyed by fire. In March 2015, the AOJ conducted an additional search through alternative sources, which disclosed an additional clinical cover sheet. On April 6, 2015, the AOJ notified the Veteran of missing STRs and provided him notice of alternative sources of evidence which could supplement the claims. The AOJ has also obtained all available private treatment records. The Board is unaware of any outstanding records which are both relevant and available.

As it pertains to providing examination and opinion, the Board finds that the criteria for reopening the claim of service connection for asthma have not been met.  In this circumstance, VA has no duty to provide examination and opinion. 38 C.F.R. § 3.159(c)(4)(iii). As such, the Board finds that VA has fulfilled its duty to assist the Veteran in the development of the claim.

The Veteran seeks to establish his entitlement to service connection for asthma and essential tremors. In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Veteran has been awarded the Combat Infantryman Badge for combat service in Korea. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in 38 U.S.C.A. § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

Generally, an unappealed AOJ denial is final under 38 U.S.C.A. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, "new evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the 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." 38 C.F.R. § 3.156(a).  

In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010).

A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

Asthma

Despite the low threshold described by Shade, the Veteran has not presented new and material evidence that would warrant reopening either of service connection claim for asthma. 

The Veteran filed his original service connection claim for asthma in March 1954. He reported treatment for asthma and sinus issues in February 1953 with the 5th Regimental Combat Team. The available STRs reflected no lay or medical evidence of asthma. There was a history of non-specific allergic state noted on the March 1951 pre-induction examination and the February 1952 induction examination. The November 1953 discharge examination disclosed a normal clinical evaluation of the lungs and chest.

The Veteran was subsequently scheduled for a series of VA examinations. A May 1954 ear, nose and throat examination reflected a diagnosis of ulcer of the nasal septum. A general medical examination reflected his complaint of difficulty breathing and excelling at times. He reported a history of asthma at age 16. Examination disclosed the lungs to be clear with no rales or wheezes, and no diagnosis was provided. X-ray examinations were ordered, but not completed as the Veteran failed to report. It was noted that the Veteran failed to cooperate in completing the examination.

By letter dated June 23, 1954, the Veteran was notified of an administrative disallowance of his claim due to failure to cooperate with VA examination. He was notified of his appellate rights, but did file an application for review within one year of the date of notice of denial. See 38 U.S.C. §§ 705, 709 (1952); 38 C.F.R. § 19.5 (1949). The Board observes that STRs were received in April 1955, but none of these records were pertinent to an asthma disability. As such, new and material evidence was not received within one year of the June 1954 notice of denial, and the claim did not require readjudication based on the receipt of pertinent STRs not previously of record. See 38 C.F.R. § 3.156(b), (c); Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017).

Evidence submitted since the June 1954 rating decision, in addition to the STRs received in April 1955 discussed above, do not reflect any medical documentation of diagnosis or treatment for asthma. There are also no additional lay details concerning any asthma symptoms in service or subsequent to service. Overall, the evidence added to the record for asthma is cumulative and redundant of the evidence of record at the time of the June 1954 final decision and does not raise a reasonable possibility of substantiating the claim as it does not relate to an unestablished fact. Thus, the criteria for reopening the claim have not been met.

The Board additionally notes that, in March 2015, the AOJ received additional STRs pertinent only to the Veteran's treatment for acute tonsillitis in service. As this additional STR is not pertinent to the asthma claim, the claim cannot be readjudicated on the basis of receipt of a previously unconsidered pertinent service record. See 38 C.F.R. § 3.156(c); Kisor, 869 F.3d 1360 (Fed. Cir. 2017).
Essential tremors

In April 2005, the Veteran's spouse assisted the Veteran in filing a claim described as hands shaking uncontrollably since service, which was caused by a mortar attack. In a July 2005 statement, it was reported that the Veteran has a slight tremor when he was discharged from service which progressively worsened to the point of severe shaking. She also observed that the Veteran had depression and sleep disturbance that had been treated with Neurontin, which subsequently caused seizures. Associated medical records reflected the Veteran's treatment for essential tremors beginning in February 2000 with a reported onset of several years ago.

An August 2005 AOJ rating decision denied the Veteran's claim for service connection for essential tremor-bilateral hands because the Veteran failed to show a relationship (nexus) between his condition and his military service. His service medical records and discharge documents were silent for any complaints or treatment for shaking hands. By letter dated August 30, 2005, the Veteran was notified of the AOJ's August 2005 denial and his appellate rights. However, the Veteran did not file a notice of disagreement (NOD), and new and material was not received, within one year of the date of notice of denial. The additional service records received in March 2015 were not pertinent to essential tremor. As such, the August 2005 decision became final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005); 38 C.F.R. § 3.156(c); Kisor, 869 F.3d 1360 (Fed. Cir. 2017).

Evidence added to the record since the August 2005 final AOJ decision includes an August 2015 VA PTSD examination report which included the Veteran's description of one combat event while on patrol which left him shaking so bad he was concerned that he would have to bite on something due to his teeth chattering. He was described as crying and shaking when discussing his military experiences, which was exacerbated by his essential tremor. When discussing symptoms of mobility, communications and self-care due to PTSD, the examiner stated "(moderate), his tremor is exaggerated by symptoms of anxiety and depression (observed in the interview)."

As a result of the August 2015 VA examination, the Veteran has been service-connected for PTSD. The opinion of the examiner that the Veteran's essential tremor has been aggravated by the now service-connected PTSD reasonably raises a secondary service connection theory which is deemed on appeal. Bingham v. Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that separate theories in support of a claim for a particular benefit are not equivalent to separate claims but rather part of a single claim). Thus, the medical opinion constitutes new and material evidence sufficient to reopen the claim.

With regard to the claim on the merits, the Veteran first described the onset of hand shaking during a combat event. Thus, his report alone is sufficient to establish the incurrence of this symptom, and possibly the initial disability itself, during combat service. 38 U.S.C.A. § 1154(b); Reeves, 682 F.3d 988 at 999. The August 2015 VA examiner opined that the essential tremor has been aggravated by service-connected PTSD based upon interview observation. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's essential tremors are aggravated by service-connected PTSD. The claim for service connection for essential tremors, therefore, is granted.


ORDER

New and material evidence having not been received, the application to reopen the claim for entitlement to service connection for asthma is denied.

The application to reopen the claim for entitlement to service connection for essential tremors is granted. To this extent only, the appeal is granted.

Service connection for essential tremors is granted.





REMAND

In a rating decision dated August 2015, the AOJ granted service connection for PTSD, major depressive disorder and generalized anxiety disorder, and assigned an initial 50 percent rating effective October 27, 2014. In July 2016, the Veteran submitted a standardized VA Form 21-0958 (Notice of Disagreement) regarding a "100% SERVICE CONNECTED EVALUATION," and a higher evaluation and earlier effective date of award for "SLEEPING PROBLEMS" and "VERY NERVOUS." He additionally described bad dreams, crying, anxiety, and taking the medications of sertraline and mirtazapine.

Later that month, the AOJ advised the Veteran that his attempted NOD was premature as there were no record of claims regarding service-connected evaluation for 100%, service connection for sleeping problems, and service connection for being very nervous.

The Board generally observes the VA adjudication system is "paternalistic" and "uniquely pro-claimant" in nature. See Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009); Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000). VA has a duty to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," see Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

Here, the record reflects that, due to infirmity, the Veteran has required assistance in filing his VA compensation claims. The July 2016 VA Form 21-0958 essentially describes symptoms of his service-connected PTSD (sleep difficulty, bad dreams, nervousness and anxiety) and requests a 100 percent rating effective to the date of service discharge. The Board finds that the July 2016 VA Form 21-0958 is reasonably construed as a timely NOD with respect to the initial rating and effective date of award assigned for PTSD, major depressive disorder and generalized anxiety disorder in the August 2015 AOJ rating decision.  

As the AOJ has not recognized the initiation of an appeal, the Board remands the issues of entitlement to an initial rating greater than 50 percent for service-connected PTSD, major depressive disorder and generalized anxiety disorder, entitlement to an effective date earlier than October 27, 2014 for the award of service connection for PTSD, major depressive disorder and generalized anxiety disorder, and entitlement to TDIU for issuance of a statement of the case (SOC). 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.)

Furnish the Veteran an SOC on the issues of entitlement to an initial rating greater than 50 percent for service-connected PTSD, major depressive disorder and generalized anxiety disorder, entitlement to an effective date earlier than October 27, 2014 for the award of service connection for PTSD, major depressive disorder and generalized anxiety disorder, and entitlement to TDIU.

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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs