Citation Nr: 1756450 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-05 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for multiple sclerosis (MS), and if so whether the reopened claim should be granted. 2. Entitlement to an initial rating in excess of 50 percent for a psychiatric disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from May 1994 to February 1997. This matter came before the Board of Veterans' Appeals (Board) from decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A video hearing before the undersigned Veterans Law Judge was held at the RO in July 2017. The hearing transcript has been associated with the claims file. The issues of entitlement to an increased rating and a TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A rating decision issued in November 2008 denied a claim of service connection for MS. The appellant did not appeal. The evidence received subsequent to the November 2008 decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim. 2. The Veteran's MS is related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for MS. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for MS have been met. 38 U.S.C. §§ 1101, 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Legal Criteria Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (West 2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the 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 decisionmakers. Material evidence means evidence that, by itself or when considered with 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis A claim for service connection for MS was denied in a November 2008 rating decision due to the absence of evidence of a link between MS and service. The Veteran was notified of this decision but did not appeal the decision or submit pertinent evidence within the appeal period. The evidence added to the record after the appeal period includes medical evidence linking the MS to an in-service incurrence of Epstein-Barr virus. This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claim, notably the existence of a current disability. Accordingly, reopening of the claim is in order. Service Connection Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for MS. The record indicates that the Veteran was treated for Epstein-Barr Virus in November 1996, during service, and that she is currently diagnosed with MS. The record includes medical evidence, notably findings of a private physician and a VA examiner and a medical article, that Epstein-Barr virus is "an infectious risk factor" for MS, and the March 2012 VA examiner determined that it was at least as likely as not that the Veteran's MS is related to the in-service Epstein-Barr virus. Resolving all doubt in favor of the Veteran, the Board finds service connection is warranted. ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for MS is granted. Service connection for MS is granted. REMAND The Veteran was most recently afforded a relevant VA examination in March 2012. At the July 2017 hearing before the Board, the Veteran testified that the psychiatric disability has worsened since that examination. Therefore, the Board has determined that the Veteran should be afforded another VA examination to determine the current degree of severity of the psychiatric disability. The claim of entitlement to a TDIU must be held in abeyance pending development. Notably, it is inextricably intertwined with the increased rating claim remanded herein and, based on the Board's decision to grant service connection for MS, with the pending assignment of the initial rating for MS. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all pertinent, outstanding medical records, including any records in the possession of the Social Security Administration (SSA). 2. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected depression. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure that the examiner provides all information required for rating purposes, including the effect on occupational functioning. 3. Thereafter, readjudicate the issues remaining on appeal. If a benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant 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). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs