Citation Nr: 1800580 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-25 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date prior to October 2012 for a 30 percent rating for first degree arteriovenous block. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for tinea pedis. 4. Entitlement to service connection for a skin disorder of the feet, to include tinea pedis. REPRESENTATION Appellant represented by: Paul Burkhalter, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1975 to March 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2010, January 2013, and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing has been associated with the claims file. At the hearing, the Veteran's attorney waived regional office review of all evidence submitted. As a result, the Board may consider it in the first instance. The issue of entitlement to a foot disorder 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 has been service connected for first degree arteriovenous block since 1994, at which time it was evaluated as non-compensably disabling. 2. The Veteran submitted a claim for an increase rating for his degree arteriovenous block in July 2010. 3. Evidence received in connection with his claim for increase showed the presence of ventricular hypertrophy since the date of claim for increase. 4. The Veteran's anxiety disorder with depression NOS was not present in service or for years thereafter; it has not been linked to an in-service disease or injury by competent evidence. 5. The December 2005 rating decision that denied the Veteran's claim for service connection for tinea pedis was not appealed and no new and material evidence was received within the appeal period. 6. Evidence received since December 2005 is not duplicative or cumulative of evidence previously received, relates to a relevant unestablished fact, and raises a reasonable possibility of substantiating the Veteran's service connection claim. CONCLUSIONS OF LAW 1. The criteria for an effective date of July 14, 2010, for the grant of entitlement to a 30 percent rating for first degree arteriovenous block have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b), 5109A, 5110(a), 7105(c) (2012); 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.400 (2017). 2. The criteria for entitlement to service connection for a psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The December 2005 rating decision denying service connection for tinea pedis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. The Veteran has submitted new and material evidence sufficient to reopen his claim for service connection for a skin disorder of the feet, to include tinea pedis. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). I. Earlier Effective Date Claim The Veteran was granted service connection for his arteriovenous block (previously sinus bradycardia with sinus arrhythmia) in a 1995 rating action, at which time the disability was assigned a non-compensable evaluation. In July 2010, the Veteran filed a claim for increase. In connection with that claim, he was assigned an increased 10 percent evaluation effective from the date of claim, and an increased 30 percent evaluation, effective from October 2012. The Veteran seeks an earlier effective date for the 30 percent evaluation. The law pertaining to the effective date of a VA claim for increase in disability mandates that unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The pertinent statute then goes on to provide that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). As noted, the claim for an increased rating was received by VA on July 14, 2010. There is no indication in the record of any intent to file a claim for an increased disability rating for the Veteran's service-connected heart disability until that claim. In this instance, the RO appears to have established the effective date for the 30 percent evaluation from the date it received medical evidence showing cardiac hypertrophy. However, as the Veteran's attorney notes, the date of claim is the appropriate effective date, since the medical evidence received in October 2012, which the RO relied on in increasing the Veteran's rating, indicates that the Veteran "had EKG . . . in 2001 that showed left ventricular hypertrophy." (The criteria for a 30 percent evaluation for the veteran's disability includes evidence of cardiac hypertrophy, 38 C.F.R. § 4.104, Diagnostic Code 7015.) Since this evidence shows ventricular hypertrophy at the time of the claim, the date of claim is the appropriate effective date. Thus, in these circumstances, an effective date of July 14, 2010 is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. II. Service Connection The Veteran contends that he currently suffers from an acquired psychiatric disorder, to include PTSD, as a result of service. Specifically, he reported that during his tour, he was located in Saudi Arabia during Desert Storm from 1990 to 1991. He stated "we were the first over there . . . we had a lot of scud alerts and we were always running to the bunker . . . we had to suit up a lot for the chemical alerts . . . we would go through the town a lot and it was really tense and they were taking pop shots at us . . . when my unit finally got there after me, my captain requested me and I asked him why they kept picking me to do everything - I had to go set up another perimeter . . . we had a bomb go off near our compound and that really rattled us." Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board notes that the version of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders in use for purposes of VA examination and diagnosis changed in August 2014. See 38 C.F.R. § 4.130 (as in effect since August 4, 2014) (application of DSM-5); 38 C.F.R. § 4.130 (as in effect for the portion of this appeal prior to August 4, 2014) (application of DSM-IV). The DSM 5 criteria may only be assigned after August 4, 2014. However, the DSM-IV criteria may be used at any time during the appeal, including after August 4, 2014, if application of DSM-IV after August 4, 2014 would be more favorable to the Veteran. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (under 38 U.S.C. §1154(b), a combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service). In cases where the Veteran engaged in combat, the Federal Circuit has held that the presumption found in § 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). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorder. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). For claims that were appealed to the Board but not decided as of July 13, 2010, changes to the applicable regulations are in effect as follows. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (3); 75 Fed. Reg. 39,843 (Jul 13, 2010) Here, because the Veteran has alleged that he suffers from an acquired psychiatric disorder, to include both PTSD and anxiety with depression NOS, the Board will address each issue separately. PTSD The Board finds that the Veteran does not have a diagnosis of PTSD under the applicable criteria. At no time during the appeal period has a diagnosis of PTSD been demonstrated. VA treatment records do not support a diagnosis of PTSD. Instead, VA treatment records document a diagnosis of anxiety disorder NOS/"R/O PTSD" and depressive disorder. The Veteran was afforded a PTSD VA examination in May 2011. The examiner noted the Veteran's previous mental health disorder diagnoses. On examination, the Veteran reported combat experience from 1990 to 1991. He reported feeling intense fear; feelings of helplessness; and feelings of horror. He reported having various symptoms daily to weekly, ranging from mild to severe, which he stated have been present since his return from deployment. The examiner found that the Veteran met the DSM-IV stressor criterion for PSTD and that his primary stressor related to PTSD was fear of hostile military activity. The examiner concluded, however, that "based on the Veteran's current symptom presentation as well as the information noted in his treatment records, it would appear that his symptoms more appropriately warrant a diagnosis of anxiety disorder NOS rather than PTSD." The examiner stated that the Veteran's presentation is a complicated one in which it is difficult to solely attribute his reported avoidant/numbing symptoms and increased arousal symptoms to his reported traumatic experiences. The examiner noted that various VA treating clinicians have also diagnosed the Veteran with anxiety disorder NOS following several contacts and that it appeared that the Veteran's diagnosis of anxiety disorder NOS is at least as likely as not related to his fear of hostile military/terrorist activity. The examiner also stated "the Veteran's diagnosis of depressive disorder NOS appears to be secondary to his anxiety disorder NOS." Recent VA treatment records from August 2015 show that the Veteran had a negative PTSD screening test. Indeed, no formal diagnosis of PTSD is found anywhere in the Veteran's treatment records. Here, the Board finds the May 2011 VA examination and subsequent treatment records to be highly probative as to the question of whether the Veteran has a diagnosis of PTSD. The VA examiner considered the Veteran's lay statements, his in-service stressors, and the diagnoses of other VA clinicians. Although the examination report initially indicated that the C-file was not reviewed, the examiner referenced various treatment records in his report and a June 2012 addendum opinion clarified that the C-file had in fact been reviewed. To the extent the Veteran asserts that he has a current diagnosis of PTSD, the Board notes that he has not demonstrated the medical acknowledge or training necessary to diagnose himself with PTSD. See 38 C.F.R. § 3.304 (f) ("Service connection for [PTSD] requires medical evidence diagnosing the condition . . . ."). Consequently, the Veteran's assertion that he has PTSD is not competent evidence of a PTSD diagnosis. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"). The Board acknowledges that the Veteran's VA examination was based on the DSM-IV criteria and the Veteran's appeal was certified to the Board after August 2014. However, given that there is no medical evidence of a PTSD diagnosis either prior to or since the Veteran's VA examination, the Board finds that a remand for a new PTSD examination is not indicated. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Thus, as no diagnosis of PTSD has been demonstrated at any time during the appeal period, the Board finds that the preponderance is against the Veteran's claim for service connection for PTSD. 38 C.F.R. §§ 3.304 (f), 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). As such, service connection for PTSD is not warranted. Id.: 38 C.F.R. § 3.303. Other Acquired Psychiatric Disorder The Veteran has been diagnosed to have anxiety disorder with depression NOS. See May 2011 VA Examination Report. Thus, the first element of service connection for an acquired psychiatric disorder has been met. The Veteran's service personnel records support his description of his experiences in Southwest Asia during Desert Shield/Desert Storm. At his Board hearing, the Veteran reported that he began to have the same symptoms he has now in-service. He reported returning from deployment and immediately having marital problems. He additionally reported periods of rage. See BVA Hearing Transcript, pg.22. This recollection, however, is not consistent with the Veteran's service treatment records. These contain no complaints or findings of any psychiatric illness or symptoms the Veteran is now reporting. When examined in connection with this retirement from service, the Veteran denied any nervous trouble, depression or excessive worry, and he denied any illness other than those already noted, (which again showed no psychiatric illness). In addition, the Veteran underwent a clinical evaluation, which included a psychiatric evaluation, and no psychiatric abnormality was noted. The Veteran's service treatment records carry significant probative value as they date from the period during which a disease or injury needs to have been incurred, which it then must be shown to have produced the claimed disability in order to establish service connection. In addition, they are created in a context where the soldier is under a chain of command which exercises closer scrutiny over its members than exists in a non-military environment, such that any symptoms of an illness would be more likely observed and referral to medical care can be directed. This medical care is accomplished within a framework of a large organizational structure whose purpose is to ensure the health and well-being of the nation's war fighters, and would have the capacity to address virtually any illness or injury. Although service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service, the actual in-service records of treatment are probative pieces of evidence as to a Veteran's medical status during service. This Veteran's records of medical care in service showed no symptoms about which he now complains, or any disease or injury associated with the illness for which he now seeks benefits. Given the context and purpose of the service treatment records, the apparent thoroughness of the evaluations conducted of the Veteran when he served, and the inclusion of the Veteran's own statements that he essentially had no psychiatric symptoms, the Board concludes the service treatment records are more probative than the Veteran's current recollections given many years later, and provide a more accurate account of the Veteran's medical status during service. Finding that the record supports the conclusion the claimed disability, or symptoms of it, were not present in service and with no probative evidence identifying an in-service disease or injury to which the claimed disability relates, a basis upon which to establish service connection is not presented. Although the post service records showing anxiety disorder and depression associate the illness with the Veteran's response to his experiences in service, the post service onset of the response establishes the anxiety and depression were not incurred in service, but rather post service. The post service onset of the disability precludes an award of service connection in this case. III. New and Material Evidence As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 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). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156 (a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The record shows that a December 2005 rating decision last denied entitlement to service connection for tinea pedis because there was no evidence of a currently diagnosed condition that could be related to service. The Veteran did not appeal that denial. Moreover, in the first year after that decision, the record does not show that he filed with VA any statements or evidence relating to a foot disorder that could be construed as new and material evidence. 38 C.F.R. § 3.156(b). In this regard, the record shows that the Veteran submitted an authorization to release information related to his hypertension. Thus, the release and records are not relevant records to implicate action under 38 C.F.R. § 3.156(c). Accordingly, the Board finds that the December 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final decision, the Veteran has provided testimony that he went to sick-call one time in service for his feet but then used over-the-counter medication to deal with his condition. Not previously submitted private treatment records from September 2015 show that the Veteran experiences onychomycosis of the toenail involving both feet which has been recurrent for many years. In addition, the Veteran has submitted medical literature which indicates that nail fungus, or onychomycosis, is a common complication of athlete's foot and that both conditions are caused by the same type of fungi, called dermatophytes. The literature states that the fungus spreads easily from the skin between the toes to the toenails if the skin infection is not treated. At his Board hearing, the Veteran testified that he was given powder for his feet in service, but was told by VA that he should have been given "pills by mouth a long time ago. That might have stopped the problem." See BVA Hearing Transcript, p. 16-17. As this evidence is new, its relevance is obvious, and it triggers the Secretary's duty to assist, the Board finds the record contains new and material evidence as defined by regulation. Accordingly, the Veteran's claim for a foot disorder is reopened. ORDER Subject to the laws and regulations governing payment of monetary benefits, an effective date of July 14, 2010, for a 30 percent evaluation for first degree arteriovenous block, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is denied. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a skin disorder of the feet, to include tinea pedis, is reopened. REMAND When the record indicates that a disability or signs and symptoms of a disability may be associated with active service yet does not contain sufficient information to make a decision on the claim, VA is obliged to provide the Veteran with an examination. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the record evidence establishes that Veteran has a current diagnosis of onychomycosis of the toenails involving both feet, which has been recurrent for many years. His service treatment records document that during service, he was treated for his athlete's foot. Tinea pedis of the right foot fifth toe was noted. The Veteran has additionally submitted medical literature which states that nail fungus, or onychomycosis, is a common complication of athlete's foot as both conditions are caused by the same type of fungi. Therefore, as there is a current disability and evidence that the current disability may be associated with active service, the Board finds that a remand is necessary in order to afford the Veteran a VA examination. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding relevant VA treatment records. 2. Next, afford the Veteran a VA examination for his foot disorder. The claims file must be provided to and reviewed by the examiner. Any test or studies deemed necessary should be conducted. The examiner is asked to list all skin diagnoses related to the Veteran's feet; For each diagnosed disorder, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the disorder was due to or incurred in service. The examiner should consider the Veteran's lay statements with regard to the onset of the disorders. The examiner is additionally asked to consider the medical literature submitted by the Veteran which indicates a relationship between tinea pedis and onychomycosis. The examiner should provide a rationale for any conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 3. After completion of the above development, the Veteran's claim should be readjudicated. If any determination remains adverse, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs