Citation Nr: 1751391 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-28 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, and if so, whether service connection is warranted. 3. Entitlement to service connection for high blood pressure. 4. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS). 5. Entitlement to a total disability rating based on individual unemployability (TDIU). 6. Entitlement to nonservice-connected pension. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and her daughter ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1976 to May 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska and St. Paul, Minnesota. The Veteran testified in August 2016 before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of this proceeding is associated with the electronic record. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, although a Veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the Veteran's description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran initially filed a claim seeking service connection for anxiety, the Board notes that the she has subsequently filed claims for depression, PTSD, and bipolar disorder, and has been diagnosed with and has sought treatment in the past for other psychiatric disorders. The Board therefore finds that, pursuant to Clemons, the Veteran's claims for anxiety, depression, and PTSD are more accurately characterized as one for any acquired psychiatric disorder and has reframed the issue accordingly. 23 Vet. App. at 1. Similarly, the Veteran filed a claim for service connection for irritable bowel syndrome (IBS). The evidence of record indicates that she has also been diagnosed with Crohn's disease. As such, the Board has characterized this issue as one for a gastrointestinal issue and has reframed the issue accordingly. 23 Vet. App. at 1. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not submit a substantive appeal, VA Form 9, of the September 2005 rating decision denying service connection for an acquired psychiatric disorder; therefore it became final. 2. The Veteran did not file a notice of disagreement with the September 2008 rating decision denying service connection for diabetes mellitus; therefore it became final. 3. Additional evidence, considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of the last prior final denials and raises a reasonable possibility of substantiating the claims for service connection for an acquired psychiatric disorder and diabetes mellitus. 4. The Veteran's acquired psychiatric disorder is causally related to an event, injury, or disease in service. 5. The preponderance of the evidence is against a finding that the Veteran has diabetes mellitus which is causally related to, or aggravated by, an event, injury, or disease in service. 6. The preponderance of the evidence is against a finding that the Veteran has high blood pressure which is causally related to, or aggravated by, an event, injury, or disease in service. 7. The preponderance of the evidence is against a finding that the Veteran has a gastrointestinal disability which is causally related to, or aggravated by, an event, injury, or disease in service. 8. The Veteran did not have at least 90 days of active service during a period of war and was not discharged from service due to a service-connected disability. CONCLUSIONS OF LAW 1. The original September 2005 rating decision denying the claim for service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). 2. The original August 2008 rating decision denying the claim for service connection for diabetes mellitus, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). 3. Evidence received since the September 2005 and August 2008 rating decisions is new and material to reopen the claims of service connection for an acquired psychiatric disorder and diabetes mellitus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 4. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 5. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 6. The criteria for entitlement to service connection for high blood pressure have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 7. The criteria for entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome, have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 8. The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 101(2), 1521, 5107(a) (West 2014); 38 C.F.R. §§ 3.2, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Legal Criteria and Analysis I. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. §§ 7104, 7105. However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. The Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Psychiatric Disorder The Veteran filed a claim for service connection for an acquired psychiatric disorder in January 2005. At the time of the September 2005 rating decision denying the claim, the evidence of record included the Veteran's service treatment records and post-service VA treatment records. The RO denied the Veteran's claim for an anxiety disorder and bipolar disorder on the basis that neither condition was incurred in, or caused by service. In addition, the RO denied service connection for depression and PTSD, finding that there was no evidence that the Veteran had been clinically diagnosed with these conditions. The Veteran filed a notice of disagreement and the RO issued a statement of the case (SOC) in June 2006. However, the Veteran did not submit a substantive appeal, VA Form 9. Therefore, the decision became final. 38 C.F.R. § 20.302. In May 2008, the Veteran submitted a request to reopen her claim for entitlement to service connection for an acquired psychiatric disorder. The RO denied reopening the claim in an August 2008 rating decision on the basis that no additional evidence had been received to show that the Veteran's psychiatric disorder was related to service. The Board finds that evidence has been received to reopen the Veteran's claim for service connection for diabetes mellitus. As noted above, for a claim to be reopened from a final, unappealed, decision, new and material evidence must be provided. 38 C.F.R. § 3.156(a). Review of the record shows that the Veteran and her daughter testified during her August 2016 Board hearing that her acquired psychiatric disorder was caused by service. This evidence is both new and material to the Veteran's claim for service connection for diabetes mellitus. This evidence was not before the RO since the last final denial and it is not cumulative or redundant evidence then of record. It raises a reasonable possibility of substantiating the Veteran's claim, and the Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Board finds that new and material evidence has been added to the record and the claim must be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Diabetes Mellitus The Veteran filed a claim for service connection for diabetes mellitus in May 2008. At the time of the August 2008 rating decision denying the claim, the evidence of record included the Veteran's service treatment records and post-service VA treatment records. The Veteran did not file a notice of disagreement, nor submit any new and material evidence within a year following the decision; therefore, the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In December 2013, the Veteran submitted a request to reopen her claim for entitlement to service connection for diabetes mellitus. The RO denied reopening the claim in an April 2014 rating decision on the basis that no additional evidence had been received to show that the Veteran's diabetes mellitus was related to service, manifested within a year of separation, or was secondary to a service-connected disability. The Board finds that evidence has been received to reopen the Veteran's claim for service connection for diabetes mellitus. As noted above, for a claim to be reopened from a final, unappealed, decision, new and material evidence must be provided. 38 C.F.R. § 3.156(a). Review of the record shows that the Veteran and her daughter testified during her August 2016 Board hearing that her diabetes mellitus was caused by service. This evidence is both new and material to the Veteran's claim for service connection for diabetes mellitus. This evidence was not before the RO since the last final denial and it is not cumulative or redundant evidence then of record. It raises a reasonable possibility of substantiating the Veteran's claim, and the Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Board finds that new and material evidence has been added to the record and the claim must be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Acquired Psychiatric Disorder Having reopened the Veteran's claim, the Board must now determine whether the claim of entitlement to service connection for an acquired psychiatric disorder, may be granted on the merits de novo. The Veteran contends that she was sexually assaulted while in the military. In August 2005, the Veteran underwent a VA examination to assess the nature and etiology of her acquired psychiatric disorder. The VA examiner opined that it was at least as likely as not that her psychiatric issues (diagnosed as bipolar disorder and anxiety disorder) are related to her in-service trauma. While the examiner noted that the Veteran's reported stressor had not yet been corroborated, the Board has no reason to doubt the credibility of her report and acknowledges the difficulty of corroborating cases of military sexual trauma. In giving the Veteran the benefit of the doubt, and considering the evidence of record as a whole, the Board finds that service connection for an acquired psychiatric disorder is warranted, and the claim is granted in full. Diabetes Mellitus and High Blood Pressure Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as hypertension or diabetes mellitus is shown in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.303(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, some chronic diseases such as hypertension and type II diabetes mellitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A.§§ 1101, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, the Veteran has verified service from February 1976 to May 1976, or 84 days. Consequently, she does not meet the requisite period of active duty service for entitlement to service connection on a presumptive basis. As to a direct connection between diabetes mellitus or hypertension and service, there is no competent medical evidence of either disability in service or that the conditions manifested within a year of service. The Board recognizes that the Veteran has not had an examination to obtain a medical opinion regarding a direct connection between diabetes mellitus or hypertension and service. However, the Board finds that an examination is not required. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an 'in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is sufficient evidence to decide the claims because there is no evidence establishing an in-service event or other indication, besides the Veteran's lay statements, that the disabilities might be related to service. As to the lay statements made by the Veteran concerning the etiology of her diabetes mellitus and hypertension, lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, diabetes mellitus and hypertension are disabilities with diagnoses that are confirmed only with specific diagnostic testing and are not readily observable to a lay individual without training or credentials. Notably, 38 C.F.R. § 4.119, Diagnostic Code 7913 refers to glucose testing for type II diabetes mellitus, while 38 C.F.R. § 4.104, Diagnostic Code 7101 indicates that a diagnosis of hypertension can only be made after certain blood pressure findings. All of these matters fall outside the realm of common knowledge of a lay person, and the Veteran's statements therefore do not constitute competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because the preponderance of the evidence is against the claims, the benefit of-the-doubt doctrine does not apply, and the claims for service connection for diabetes mellitus and hypertension must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Irritable Bowel Syndrome The Veteran contends that her gastrointestinal disability, to include irritable bowel syndrome (IBS) is a result of medications taken during basic training. See August 2016 Board Hearing. However, throughout the appeals period, she has repeatedly stated that her symptoms began after a jet ski accident in 1999. See e.g., March 2005 Mental Health Consultation; March 2006 Primary Care Assessment. Furthermore, review of the evidence of record indicates that the Veteran was diagnosed with Crohn's disease in 1999, over 20 years after separation from service. See March 2005 Progress Note. Although not dispositive, the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, in this case, the Board finds that the elements of service connection have not been met. The probative and competent medical evidence does not demonstrate the presence of a gastrointestinal disability in service, as explained above. The Veteran is competent to note gastrointestinal symptoms but does not have the training or credentials to ascertain whether such symptoms constitute a diagnosis or what the onset and cause of that diagnosis were. As the Veteran's statements therefore do not constitute competent evidence, the Board does not find that a VA examination is "necessary" per McLendon. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a gastrointestinal disability is denied. 38 U.S.C.A § 5107(b). III. Nonservice-Connected Pension Benefits The Veteran is seeking entitlement to basic eligibility for nonservice-connected pension. Non-service connected pension is generally payable to a Veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C.A. § 1521. A threshold requirement for entitlement to a nonservice-connected pension requires that the Veteran have 90 or more days of service during a period of war. Id. Findings by the U.S. service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Veteran's DD Form 214 reflects she entered active service on February 22, 1976 and was discharged on May 15, 1976. On her DD 214, the Veteran was credited with active service for a period of two months and 24 days, or a period of 84 days. Accordingly, the Veteran had less than the required 90 days of service. In addition, based on these service dates, the Veteran did not have service during a period of war. As such, the Veteran is not eligible for VA nonservice-connected death pension benefits, as she did not serve during a period of war as defined by regulation. See 38 C.F.R. § 3.2 (2016) (defining periods of war). Because the evidence reflects the Veteran was credited with less than 90 days of active duty service, and her service did not occur during a period of war, she is ineligible for nonservice-connected pension benefits. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3. Therefore, the Veteran's claim for a nonservice-connected pension is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for high blood pressure is denied. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome is denied. Entitlement to nonservice-connected pension is denied. REMAND In this decision, the Board has granted service connection for an acquired psychiatric disorder, a disability whose claim was filed during this applicable appeal period. The AOJ will assign an evaluation for this disability in the first instance. Clearly, the AOJ has not had an opportunity to consider the Veteran's TDIU claim during this period in light of the Board's grant of service connection for an acquired psychiatric disorder. As a result of the grant of service connection, the Veteran's combined evaluation will be adjusted which would affect whether the Veteran's combined evaluation will now satisfy the threshold minimum percentage requirements of 38 C.F.R. § 4.16(a) for TDIU. Accordingly, a remand is required for the AOJ to assign an evaluation for the Veteran's now service-connected acquired psychiatric disorder and to then adjudicate the Veteran's claim of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. Assign a disability evaluation for the Veteran's service-connected acquired psychiatric disorder in the first instance. 2. Undertake any additional development deemed necessary to decide the Veteran's claim for TDIU. 3. Then, readjudicate the TDIU claim. If the Veteran's combined disability evaluation does not meet the regulatory criteria for consideration of a schedular TDIU, the AOJ must consider whether referral of the Veteran's TDIU claim to the Director of Compensation Service for extraschedular consideration is appropriate. 38 C.F.R. § 4.16(b) (2016). If the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs