Citation Nr: 1801210 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-34 881A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, major depressive disorder (MDD), and posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for skin disability. 4. Entitlement to service connection for a right eye disability. 5. Entitlement to service connection for a right shoulder disability. 6. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, MDD and PTSD. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 until January 1985. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing has been associated with the record. The issues of entitlement to service connection for a right eye disability, a right shoulder disability, and an acquired psychiatric disorder, to include anxiety, MDD, and PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A February 2010 rating decision denied entitlement to service connection for an acquired psychiatric disorder. 2. The evidence received since the February 2010 decision relates to unestablished facts that establish a current diagnosis for MDD and PTSD. 3. A March 2010 rating decision denied entitlement to service connection for a right shoulder disability. 4. The evidence received since the March 2010 decision relates to unestablished facts of an in-service incident and a nexus for the right shoulder disability. 5. Resolving all doubt in the Veteran's favor, the Veteran's skin disability is related to the Veteran's active military service. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§3.156, 20.1100, 20.1104 (2017). 2. Evidence received since the February 2010 rating decision is new and material; the service connection claim for an acquired psychiatric disorder is reopened. 38U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§ 3.156, 20.1100, 20.1104 (2017). 3. The March 2010 rating decision denying service connection for a right shoulder disability is final. 38 U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§3.156, 20.1100, 20.1104 (2017). 4. Evidence received since the March 2010 rating decision is new and material; the service connection claim for a right shoulder disability is reopened. 38U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§ 3.156, 20.1100, 20.1104 (2017). 5. The criteria for service connection for pseudofolliculitis barbae are met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (West 2012). However, 38 U.S.C. § 5108 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. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). 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). When making a determination on whether the submitted evidence meets the definition of new and material evidence, the Board must consider whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying the concepts derived from the VCAA. Shade, 24 Vet. App. at 118. Moreover, the Veteran need not present evidence as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. Acquired Psychiatric Disorder The Veteran's original claim for entitlement to service connection for an acquired psychiatric disorder was denied in a February 2010 rating decision. The Veteran's current claim was denied in a September 2013 rating decision and the Veteran has appealed. Since the February 2010 rating decision, the Veteran received a PTSD diagnosis. In April 2012, the Veteran received a major depressive disorder diagnosis.In October 2012; the Veteran was hospitalized for PTSD. This evidence is new and material. The medical evidence showing a current diagnosis establishes the first element in a claim for service connection for an acquired psychiatric disorder. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for an acquired psychiatric disorder. Right Shoulder Disability The Veteran's original claim for entitlement to service connection for a right shoulder disability was denied in a March 2010 rating decision. The Veteran's current claim was denied in a September 2013 rating decision and the Veteran has appealed. Since the March 2010 rating decision, the Veteran testified an August 2017 hearing that his right shoulder disability is related to his 1983 in-service mugging. In reviewing the evidence, the Board finds the March 2010 VA examination inadequate because the examiner relied on inaccurate evidence. The examiner stated that an x-ray from 1983, which could not show osteoarthritis, and did not show osteoarthritis as the basis for providing a negative nexus opinion. The Board finds an updated examination is necessary. Given the Veteran's current disability and the documented in-service incident, the Veteran has provided credible nexus testimony. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for a right shoulder disability. II. Service Connection - Skin Disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is seeking service connection for pseudofolliculitis barbae. The Board finds service connection is warranted. First, the Veteran testified that he continues to have symptoms from his skin disability. See August 2017 statement. He is competent to report his experience as he would have personally observed the bumps on his face. The Board has no reason to doubt the credibility of his statements. Second, he reported that his skin disability began in boot camp when he began to shave his beard instead of using clippers. See August 2017 statement. The record shows the Veteran had a pseudofolliculitis barbae diagnosis and received several chits for not shaving during service. Accordingly, he satisfies the second element - in-service injury or occurrence. Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's skin disability is related to service, given the evidence of record and the competent and credible assertions by the Veteran. In July 2013, a VA examiner found the Veteran did not have any skin abnormality visible during his examination. However, the Veteran had a short beard. As the evidence is at least in relative equipoise, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for pseudofolliculitis barbae has been established. 38 U.S.C. §5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for an acquired psychiatric disorder is granted. New and material evidence having been received, the appeal to reopen the claim for service connection for a right shoulder disability is granted. Service connection for pseudofolliculitis barbae is granted. REMAND While the Board sincerely regrets the delay, the Veteran's claims require further development. In regards to his eye disability, the Veteran contends that his eye disability was mistakenly recorded as affecting his left eye instead of his right eye in his service treatment records. At his hearing, the Veteran stated that he was hit above his right eye when his was mugged during service. The Board finds a medical examination is necessary to address his contentions, determine a diagnosis, and potentially link his disability is related to service. In regards to his an acquired psychiatric disorder, the Veteran continues to report ankle pain and receive treatment. The Veteran has a current diagnosis for PTSD and MDD. The Board finds a medical examination is necessary to address his contentions, and potentially link his disability is related to service. In regards to his shoulder disability, the Veteran's March 2010 VA examination was inadequate. The Board finds a medical examination is necessary to address his contentions, and potentially link his disability is related to service. Accordingly, the case is REMANDED for the following action: 1. Ensure all outstanding VA records are associated with the claims file, specifically to include records since April 2016. 2. After completing the preceding development, schedule the Veteran for a VA examination with an appropriate examiner for his right eye disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After a complete review of the record, the examiner is asked to: A. Determine the nature and etiology of the Veteran's eye disability, including all eye-related diagnoses. The examiner must include an opinion as to whether is as likely as not (50 percent or more probability) that any diagnosed eye disability is related to service. B. Determine whether it is at least likely as not (50 percent or greater probability) that the Veteran's eye disability was caused by or aggravated by (worsened beyond normal progression) any service-connected disabilities. In doing so, please reconcile the opinion with all evidence of record, and particular attention is called to the following: *May 1985 Report of Medical History indicating an eye complaint. *July 2013 VA Examination report. *August 2017 Statement by the Veteran indicating that his eyes were getting blurrier. A complete rationale for any opinion expressed should be included in the examination report. 3. Schedule the Veteran for a VA examination with an appropriate examiner for his right shoulder disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After a complete review of the record, the examiner is asked to: A. Determine the nature and etiology of the Veteran's shoulder disability, including all shoulder-related diagnoses. The examiner must include an opinion as to whether is as likely as not (50 percent or more probability) that any diagnosed shoulder disability is related to service. B. Determine whether it is at least likely as not (50 percent or greater probability) that the Veteran's shoulder disability was caused by or aggravated by (worsened beyond normal progression) any service-connected disabilities, to specifically include spondylosis of the lumbosacral spine. In doing so, please reconcile the opinion with all evidence of record, and particular attention is called to the following: *February 1983 record indicating lacerations and contusion to his shoulders after a mugging. *March 2010 VA Examination report. A complete rationale for any opinion expressed should be included in the examination report. 4. Schedule the Veteran for a VA examination with an appropriate examiner for an acquired psychiatric disorder, to include anxiety, MDD and PTSD. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After a complete review of the record, the examiner is asked to: A. Elicit a detailed history from the Veteran regarding his symptoms and treatment for his any acquired psychiatric disorder. B. Diagnose any acquired psychiatric disability found to be present since the filing of the claim, to include anxiety and PTSD. If the Veteran meets the criteria for PTSD, specify the stressor(s) that provide the basis of the diagnosis. C. Determine whether it is at least likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability was caused by or aggravated by (worsened beyond normal progression) any service-connected disabilities. In doing so, please reconcile the opinion with all evidence of record, and particular attention is called to the following: *May 2009 VA Examination report. *May 2009 Anxiety disorder diagnosis. *August 2009 Statement by the Veteran about a traumatic experience during service. *August 2009 Statement by Dr. B.S. about the Veteran's anxiety. *November 2010 diagnosis of PTSD with psychotic features. *December 2011 VA Examination report. *April 2012 Major Depressive disorder diagnosis. *October 2012 hospitalization for PTSD. A complete rationale for any opinion expressed should be included in the examination report. 5. Following the completion of the above directives, review the claims file to ensure compliance with this remand. 6. After completion of the above and any other development deemed necessary, readjudicate the issues on appeal. 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. §§ 5109B, 7112 (West 2012). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs