Citation Nr: 1751616 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-00 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and posttraumatic stress disorder (PTSD). 3. Entitlement to a compensable rating for the service-connected bilateral hearing loss. 4. Entitlement to service connection for residuals of a traumatic brain injury, to include head trauma, head tremors, and a mild concussion. 5. Entitlement to nonservice-connected pension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1967 to August 1970, to include service in Vietnam from April 1968 to April 1969. His decorations include a Vietnamese Service Medal and Republic of Vietnam Combat Medal, among others. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a mild concussion syndrome, entitlement to nonservice-connected pension, entitlement to special monthly compensation, entitlement to a compensable rating for bilateral hearing loss; and declined to reopen the claim for service connection for a mood disorder not otherwise specified, claimed as depression and anxiety. In May 2010, the Veteran filed a notice of disagreement with the March 2010 rating decision. In March 2013, a hearing was held before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the Veteran's claims file. During the hearing, the Veteran withdrew his claim for entitlement to special monthly compensation for aid and attendance. Therefore, this issue is no longer on appeal. Regarding the claim for service connection for a psychiatric disorder, originally, the Veteran filed a claim for service connection for a nervous condition in January 1979. Due to the fact that the Veteran has been diagnosed with other mental conditions, the issue has been recharacterized to encompass such diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The issues of entitlement to service connection for a psychiatric disorder, a compensable rating for bilateral hearing loss, and nonservice-connected pension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed July 1979 rating decision denied service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and posttraumatic stress disorder, essentially on a finding that the evidence showed that the Veteran did not have a mental condition for which service connection could be granted. 2. Evidence received since the July 1979 rating decision that denied a claim of service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and posttraumatic stress disorder, is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 1979 rating decision that denied service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and posttraumatic stress disorder, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2016). 2. New and material evidence has been received to reopen the issue of service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and posttraumatic stress disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in regards to the issue of whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and PTSD. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In particular, this decision grants in full that portion of the claim that is being addressed (i.e., the request to reopen a claim of service connection for a psychiatric disorder). As this decision is completely favorable to the Veteran, there is no reason to belabor the impact of the VA's duty to notify and assist on this matter. Bernard v. Brown, 4. Vet. App. 384, 392-94 (1993). II. Factual Background, Legal Criteria, Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. The Veteran is seeking service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and posttraumatic stress disorder (PTSD). The Veteran contends that his current psychiatric disorder is related to his experiences in Vietnam. The Veteran asserts that after he got out of service, he had an incident in Germany and was put in a mental hospital. See March 2013 Hearing Testimony. The Veteran's claim was originally denied in a July 1979 rating decision based essentially on a finding that the Veteran did not have a mental condition for which service connection could be granted at the time. It appeared that the Veteran's problems were related to his substance abuse. The RO stated that during the Veteran's VA examination, nothing was found to suggest that the Veteran had a psychiatric illness that was service-connected or any current condition at that time. The Veteran did not appeal that decision, or submit new and material evidence within one year of that decision; therefore, the July 1979 rating decision is final. In June 2009, the Veteran filed a new claim for entitlement to service connection for depression. The RO construed this as a request to reopen the claim for service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and PTSD. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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 Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Evidence received since the July 1979 rating decision includes a March 2010 VA examination report and VA treatment records, which show that the Veteran has been given diagnoses of mood disorder and other mental conditions. At the time of the July 1979 rating decision, the Veteran did not have a disability for which service connection could be granted. However, the March 2010 VA examination report and VA treatment records show that the Veteran has current psychiatric diagnoses. The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and PTSD, and therefore raises a reasonable possibility of substantiating such claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for a psychiatric disorder is reopened. ORDER The appeal to reopen a claim for service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and PTSD, is granted. REMAND All Claims During a March 2010 VA examination for mental disorders, the Veteran reported that he had been denied full disability benefits from the Social Security Administration (SSA), but was receiving some money from that agency. At the March 2013 DRO hearing, the Veteran indicated that he started receiving benefits from SSA in 2008 and then started receiving "regular Social Security" when he turned 62. Based on the foregoing information, the RO clarify whether the Veteran ever filed a claim for disability benefits with SSA and, if so, obtain the medical records related to any such claim. Psychiatric Disorder The Veteran seeks service connection for a psychiatric disorder, to include a mood disorder not otherwise specified, cannabis dependence, anxiety, depression, and PTSD. The Veteran contends that his current psychiatric disorder is related to his experiences in Vietnam. In March 2010, the Veteran was afforded a VA examination for his mental conditions as a result of his filing a new claim for depression. The Veteran was diagnosed with mood disorder not otherwise specified and cannabis dependence. The VA examiner opined that it was less likely as not that the Veteran's current mood disorder was the same as the one reported during active military service. It was noted that the Veteran's long term drug abuse was possibly a factor in the Veteran's current mood disorder. In December 2013, an addendum VA medical opinion was obtained. The VA examiner noted that the Veteran's VA treatment records were silent for any diagnosis of PTSD, and agreed that the evidence of record showed that the Veteran had a mood disorder (which included various symptoms of depression, anxiety and adjustment) and cannabis dependence. The VA examiner also found various formulations of personality disorder. The VA examiner opined that the Veteran's mental conditions were not due to or related to his military service. Instead, it was at least as likely as not that the substance abuse problems and personality disorder traits started prior to military service. The VA examiner explained that the Veteran's personality traits began in early/late adolescence and followed the natural progression of his life span. The Veteran's mood disorder interacted with his substance abuse and underlying personality traits. The Veteran's service in the military did not cause his current mental conditions and did not exaggerate their natural progression. However, of record is a September 2012 mental health diagnostic study note indicating that the Veteran met criteria B, C, and D, for a diagnosis of PTSD and stated that a PTSD diagnosis was suggested. The December 2013 VA addendum medical opinion did not consider or discuss this treatment record when it stated that the Veteran's VA treatment records were silent for any diagnosis of PTSD. Therefore, a remand is warranted to afford the Veteran a new VA examination for his mental conditions to address the September 2012 mental health diagnostic study note. Furthermore, in the Veteran's prior June 1985 application for compensation, the Veteran indicated that received treatment for his mental condition from a hospital in Orlando, Florida from May 21, 1985 to May 27, 1985. See VA 21-526 Veterans Application for Compensation or Pension. This evidence has not been obtained for the record. Therefore, the RO should attempt to obtain these records on remand. Bilateral Hearing Loss The Veteran seeks a higher rating for his bilateral hearing loss, which is currently assigned a noncompensable disability rating. He was afforded VA audiological evaluations in March 2010 and September 2013. These evaluations along with the audiogram results are of record. However, a review of the Veteran's treatment records shows that his hearing loss was also evaluated for treatment purposes at a VA outpatient clinic in May 2012. A copy of those audiometry results are not of record. See 12/30/2013 CAPRI. Therefore, a remand is warranted to obtain these audiometry results and to associate the test results with the claims file. Residuals of a Traumatic Brain Injury The Veteran is seeking service connection for residuals of a traumatic brain injury, to include head trauma, head tremors, and a mild concussion. The Veteran asserts that his current head tremors are related to the head injury he sustained while he was in service. Service treatment records reveal that in May 1970, the Veteran was beat up and hit in the head. The Veteran complained of painful headaches. Postservice treatment records show that the Veteran was diagnosed with head tremors. An August 2011 neurology consultation from an outpatient clinic revealed that the Veteran was seen by a neurologist in January 2009 for his head tremors. The Veteran was afforded a VA examination in March 2010 for traumatic brain injury. The Veteran reported he sustained a mild concussion when he was hit on the head with a night stick by a military police officer. The Veteran reported that he may have lost consciousness for several minutes, but his memory was poor due to being under the influence of marijuana at that time. The Veteran denied a history of headaches or dizziness. On the examination, it was noted that the Veteran had an x-ray of his skull in October 2008. There was no acute intracranial hemorrhage or mass effect. However, moderate bilateral frontal, cerebral atrophy was present. The VA examiner concluded that the Veteran had mild concussion syndrome in 1968 due to being hit in the head by a military police officer. However, the Veteran did not have any residuals from it. He had idiopathic tremors and some brain atrophy, which was most likely due to secondary abuse of marijuana and nicotine for many years. The Veteran's tremors seemed related to years of substance abuse and not to the mild concussion the Veteran sustained in service. During his DRO hearing in March 2013, the Veteran stated that while he was in service, he was hit in the head with a five gallon fuel can in 1968 or 1969. The Veteran asserted that he was diagnosed with mild concussion while in service. The Veteran started experiencing symptoms from this injury years later. The Veteran stated that he had a brain scan and a VA neurologist diagnosed him with traumatic brain injury, which was the cause for his tremors. The March 2010 VA examination did not consider the Veteran's statements regarding his assertions that his current head condition was related to being hit in the head with a five gallon fuel can while in service. Also, the VA examiner did not address the Veteran's claims that he was diagnosed by a VA neurologist with traumatic brain injury. Therefore, a remand is warranted to afford the Veteran with a medical opinion addressing these contentions. Nonservice-Connected Pension The claim of entitlement to nonservice- connected pension is inextricably intertwined with the issues that are remanded herein. Thus, it is held in abeyance pending completion of the development discussed below. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). Accordingly, the case is REMANDED for the following actions: 1. Contact SSA and secure for the record copies of all medical records considered in their determination of the Veteran's claim for SSA disability benefits. If such records are unavailable, the reason for their unavailability must be explained for the record. 2. Obtain a copy of the Veteran's audiogram results from his May 2012 audiological evaluation from the Lake Baldwin VA outpatient clinic. 3. Identify and obtain any outstanding private treatment records from all relevant sources. Specifically, the RO should attempt to obtain medical records from the hospital in Orlando, Florida where the Veteran received mental treatment from May 21, 1985 to May 27, 1985. 4. If any of the above-requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 5. Once the above records development has been completed, arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of the Veteran's psychiatric disorder, to include PTSD. The record and copy of this remand must be made available and reviewed by the examiner in conjunction with the examination report. All necessary tests should be completed. The VA examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current psychiatric disorder, to include PTSD, had its onset in or was caused by or related to his in-service activities. The VA examiner should specifically consider and discuss the fact that the Veteran had a suggested diagnosis of PTSD in September 2012 If the requested opinion cannot be provided without resort to speculation, the examiner should so state, and then clearly and in detail explain why an opinion cannot be provided without resort to speculation. The examiner should note specifically whether there is additional evidence that could be obtained to enable the opinion to be provided, or whether the inability to provide the opinion is based on limits of medical knowledge. If speculation is due to the limits of medical knowledge, the examiner must cite to specific sources that explain why this is so. 6. Contact an appropriate clinician for a medical opinion to determine the nature and etiology of the Veteran's head injury. The record and copy of this remand must be made available and reviewed by the examiner in conjunction with the examination report. If it is determined that the requested opinions cannot be provided without an examination of the Veteran, such should be scheduled. The VA examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current head condition had its onset in or was caused by or related to his in-service activities. The VA examiner should specifically discuss the fact that the Veteran was hit in the head with a five gallon fuel can while in service. The VA examiner should also address the Veteran's claims that he was diagnosed with traumatic brain injury by his neurologist. If the requested opinion cannot be provided without resort to speculation, the examiner should so state, and then clearly and in detail explain why an opinion cannot be provided without resort to speculation. The examiner should note specifically whether there is additional evidence that could be obtained to enable the opinion to be provided, or whether the inability to provide the opinion is based on limits of medical knowledge. If speculation is due to the limits of medical knowledge, the examiner must cite to specific sources that explain why this is so. 7. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, to include nonservice-connected pension claim, and re-adjudicate the claim. If any of the issues remain denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs