Citation Nr: 1801511 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14- 04 163 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased disability rating in excess of 40 percent for the service-connected back disability. 2. Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and, if so, whether service connection is warranted. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1974 to June 1975, and from January 1976 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the RO in Roanoke, Virginia, which denied reopening service connection for PTSD and denied a rating in excess of 40 percent for the back disability. As the instant decision reopens service connection for PTSD, in order to encompass all claimed symptoms of disability, the Board has broadened and reframed the issue on appeal to entitlement to service connection for an acquired psychiatric disorder, to include PTSD, in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App 1 (2009) (holding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). In March 2017, the Veteran testified at a Board Videoconference hearing from the RO in Roanoke, Virginia, before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The issues of service connection for an acquired psychiatric disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At the March 2017 Board hearing, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the back rating issue on appeal. 2. An unappealed August 2007 rating decision denied service connection for an acquired psychiatric disorder, finding no evidence of record linking any psychiatric disorder, including PTSD, to service. 3. The evidence received since the August 2007 rating decision relates to an unestablished fact of a causal relationship between PTSD and service that could reasonably substantiate a claim of service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for an increased disability rating in excess of 40 percent for the service-connected back disability. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The August 2007 rating decision denying service connection for PTSD became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. Evidence received since the August 2007 rating decision is new and material to reopen service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Back Rating Issue on Appeal Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. At the March 2017 Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran withdrew the substantive appeal on the issue of an increased rating for the back disability. As the Veteran has withdrawn the appeal regarding the issue of an increased disability rating in excess of 40 percent for the service-connected back disability, there remain no allegations of errors of fact or law for appellate consideration as to this issue. As the Board does not have jurisdiction to review the issue, the issue will be dismissed. See 38 U.S.C. § 7104 (2012) (stating that the Board only decides actual questions of law or fact in a particular case). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In this decision, the Board reopens and remands the acquired psychiatric disorder issue on appeal for additional development. As such, no further discussion of VA's duties to notify and to assist is necessary. Reopening Service Connection for Acquired Psychiatric Disorder Generally, when a claim is disallowed, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 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. 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (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 v. Principi, 3 Vet. App. 510, 512 (1992). 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. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2017); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. In an August 2007 rating decision, the RO, in pertinent part, denied service connection for PTSD, finding no evidence of record linking any psychiatric disability to service (no nexus). The Veteran did not submit a timely NOD, and new and material evidence was not received during the one year appeal period; thus, the August 2007 rating decision denying service connection for PTSD became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the August 2007 rating decision, the Veteran testified at the March 2017 Board hearing, discussing various claimed in-service stressors. VA has also received an April 2017 statement reflecting that the Veteran wrote that PTSD is due to military sexual trauma (MST). Such evidence could reasonably substantiate a claim of service connection for an acquired psychiatric disorder because, at the very least, such evidence, when considered with the other evidence of record, triggers VA's duty to assist to meet the low reopening standard of Shade. For these reasons, the Board finds that the additional evidence is new and material to reopen service connection for an acquired psychiatric disorder. 38 C.F.R. § 3.156(a). ORDER The appeal for an increased disability rating in excess of 40 percent for the service-connected back disability is dismissed. New and material evidence having been received, the appeal to reopen service connection for an acquired psychiatric disorder that includes PTSD is granted. REMAND Service Connection for a Psychiatric Disorder Mental Health Examination VA must afford a veteran an examination and/or obtain an opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under 38 C.F.R. § 3.304(f)(5)(2017), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. At the March 2017 Board hearing, the Veteran testified to various in-service stressors, including seeing a fellow servicemember lose an ear. The Veteran also testified that, while intoxicated, he was tied to a tree and cut by a fellow servicemember. An April 2017 statement reflects the Veteran wrote that in-service MST caused PTSD. Specifically, the Veteran wrote that in November 1975 he was tied naked to a tree, his genitals were fondled, and a fellow servicemember cut his penis. The Veteran also wrote that he sought treatment for a cut to the penis. The Board notes that the Veteran served on active duty from September 1974 to June 1975, and from January 1976 to December 1976, which does not include November 1975. A November 1976 service treatment record reflects the in-service examiner wrote that the Veteran was referred for an alcohol related incident, that the Veteran was intoxicated the previous weekend, that he was being processed for an expeditious discharge, and that the Veteran was difficult to exam. A December 1976 service treatment record reflects that the Veteran sought treatment for a "small sore" on the head of the penis. The Board notes that the Veteran has claimed the occurrence of MST during service; however, the in-service treatment records do not reflect treatment for symptoms now claimed to be caused by a MST. For these reasons, the Board finds that a VA examination would assist in determining the nature and etiology of any currently diagnosed psychiatric disorder, to include whether the diagnoses include PTSD, and, if PTSD is diagnosed, to offer an opinion as to whether such diagnosis is consistent with a claimed personal assault in service. TDIU A claim for a TDIU is part of a rating issue when such claim is raised by the record during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's only service-connected disability is the back disability rated as 40 percent disabling. At the March 2017 Board hearing, the Veteran testified that he stopped working as a truck driver due to the back disability. See March 2017 Board hearing transcript. An August 2006 VA examination report reflects that the Veteran reported retiring on November 19, 2003. The Board finds that the evidence has reasonably raised a claim for a TDIU in conjunction with the increased rating issue withdrawn and dismissed herein; however, the Board finds that a remand is required prior to adjudication of the claim for a TDIU because the Veteran has not been provided adequate VCAA notice regarding substantiation of TDIU, further information requested on the individual unemployability claim form that may support the claim is requested (VA Form 21-8940), and the AOJ has not adjudicated TDIU in the first instance. Treatment Records VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The record reflects that the Veteran has previously received VA treatment for the back disability and the claimed psychiatric disorder. On remand the AOJ should attempt to obtain any outstanding VA and private treatment records concerning the remanded issues that are not already of record. Accordingly, the issues of service connection for an acquired psychiatric disorder, to include PTSD, and a TDIU are REMANDED for the following action: 1. The AOJ should send the Veteran VCAA notice that addresses a claim for a TDIU and an individual unemployability claim form (VA Form 21-8940) and request that the form be completed. The AOJ should take any additional development as deemed necessary. 2. Request the Veteran to provide information as to any private treatment for a psychiatric disorder, including PTSD, not previously received by VA. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation pertaining to treatment of the Veteran's psychiatric disorder(s), not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2017). 3. Associate with the record all VA treatment records not already of record pertaining to the treatment of the mental health and service-connected back disabilities. 4. Schedule a VA mental health examination to help determine whether the Veteran has a currently diagnosed psychiatric disorder, to include PTSD, that is related to service. The relevant documents in the record should be made available to the examiner. The examiner should obtain a full and accurate history from the record and from the Veteran, and all indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: A) Does the Veteran have PTSD? In answering this question, the examiner should address the following: i) PTSD diagnosis in the VA treatment records ii) Identify the specific stressor(s) underlying any PTSD diagnosis, namely, the fear of hostile military activity and/or reported MST iii) If it is the examiner's opinion that MST occurred, the examiner should specifically identify what factors this opinion is based on B) Is any diagnosed PTSD related to service, specifically to fear of hostile military activity and/or the reported MST? The examiner should specifically opine as to whether the nature of any diagnosed PTSD indicates that a personal assault occurred during service. Please specifically discuss the December 1976 service treatment record reflecting treatment for a small sore on the penis in conjunction with the reported MST. C) Does the Veteran have any other non-PTSD psychiatric disorder? D) For any diagnosed non-PTSD psychiatric disorder, is it as likely as not (i.e., probability of 50 percent or more) that the disability had its onset during active service? If so, please indicate what event in service represent the onset of such current disorder. 5. Then readjudicate the issue of service connection for an acquired psychiatric disorder, to include PTSD, and adjudicate the issue of entitlement to a TDIU. If the benefits sought remain denied, the Veteran and representative should be issued a Supplemental Statement of the Case. The Veteran 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 (2012). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs