Citation Nr: 1801569	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-30 978A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for hematuria.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

3.  Entitlement to a disability rating in excess of 40 percent for chronic lumbar strain.

4.  Entitlement to a disability rating in excess of 10 percent for rotator cuff impingement syndrome of the left shoulder.

5.  Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee.

6.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 

REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Moore, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from April 1978 to January 1985.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008, February 2009, and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, and a September 2014 rating decision of the VA RO in Togus, Maine.  The case is currently under the jurisdiction of the Baltimore RO.

In August 2017, the Veteran presented sworn during a Central Office hearing in Washington, DC, which was chaired by the undersigned.  A transcript of the hearing has been associated with the Veteran's claims file.  

The Veteran's claim for service connection for hematuria was originally denied in an October 1985 rating decision.  The RO determined there was no evidence of a current disability manifested by hematuria and that his current lab findings of hematuria did not constitute a disability for which service connection can be granted.  The Veteran appealed the denial to the Board.  The Board affirmed the denial, also based on a lack of a current diagnosed disorder or link to his service-connected low back disability, in October 1986.  The Veteran attempted to reopen this claim in January 1999.  A March 2000 rating decision declined to reopen the claim as he had not provided any evidence of a current diagnosis for his hematuria.  The Veteran did not file a notice of disagreement or submit new evidence within one year of the March 2000 rating decision.  The March 2000 rating decision became final and is the last prior denial of this claim. 

Since the March 2000 final decision, the Board finds that the Veteran submitted new and material evidence for the hematuria claim.  Specifically, he claimed on his VA Form 9 that he had been diagnosed with a disorder manifested by hematuria.  This statement is presumed credible for the purpose of reopening the claim.  See Justus v. Principi, 3 Vet. App. 510 (1992).  The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran has a current disability manifested by hematuria.  The Board will reopen this claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim).  

The issues of service connection for a disability manifested by hematuria (reopened), increased ratings for the left shoulder and left knee, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on his part is required.


FINDINGS OF FACT

1.  In a rating decision dated in March 2000, the RO declined to reopen a previously denied claimed for service connection for hematuria on the basis that there was no evidence of a current disability manifested by hematuria; the Veteran did not file a notice of disagreement or submit new evidence within one year of this denial.
 
2.  Evidence submitted subsequent to the March 2000 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a disability manifested by hematuria.

3.  Prior to the promulgation of a final decision by the Board, the Veteran indicated that he wished to withdraw his appeal for a higher rating for his service-connected chronic lumbar strain.

4.  The Veteran's currently diagnosed PTSD is likely the result of his active service.


CONCLUSIONS OF LAW

1.  The March 2000 rating decision declining to reopen the previously denied claim for service connection for hematuria is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017).

2.  New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for hematuria has been submitted.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

3.  The criteria for withdrawal of a Substantive Appeal on the issue of an increased rating for chronic lumbar strain by the Veteran have been met and the appeal is withdrawn.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

4.  The criteria for service connection are met for PTSD.  38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2017).  Withdrawal may be made by the veteran or by his or her authorized representative.  38 C.F.R. § 20.204 (2017).  

The Veteran perfected his appeal of the September 2008 rating decision continuing a 40 percent evaluation for chronic lumbar strain.  At his August 2017 Board hearing, the Veteran indicated on the record that he wished to withdraw his appeal of this evaluation.  An appeal may be withdrawn on the record at a hearing, and the withdrawal is effective immediately upon receipt by VA.  38 C.F.R. § 20.204(b)(1), (3) (2017).  Given the Veteran's express statement at the August 2017 hearing, the Veteran's appeal of the disability rating for his chronic lumbar strain has been withdrawn, and there remain no allegations of errors of fact or law for appellate consideration on this issue.  Accordingly, the Board does not have jurisdiction to review the claim of entitlement to an increased rating for chronic lumbar strain, and it is dismissed.

II. Psychiatric Disorder

As the Veteran's PTSD claim is granted herein, any error related to the duties to notify and assist is moot.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran claims that his PTSD is the result of witnessing and providing aid to victims of a fatal motor vehicle accident (MVA) while in service.  He, therefore, believes service connection is warranted.

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012).  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Service connection for PTSD specifically requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (requiring mental disorder diagnoses to conform with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor.  38 C.F.R. § 3.304(f) (2017).  

With regard to a present disability, an October 2011 letter from the Veteran's VA psychiatrist diagnoses him with PTSD.  Although the DSM-V was not yet in publication at the time of this diagnosis, the Board will presume that the diagnosis conforms to the DSM-V diagnostic criteria.  The first elements of Shedden/Caluza and 38 C.F.R. § 3.304(f) are met.

With regard to an in-service event or stressor, the Veteran claims that he witnessed a MVA in which a military vehicle drove over a cliff in Hawaii.  Personnel records for the Veteran reflect that he received a Certificate of Achievement for distinguishing himself while on a Medevac mission in Hawaii on March 10, 1980.  The details of the award indicate that he helped several accident victims out of a steep ravine, secured the victims' military equipment, and provided first aid.  This award confirms his claimed stressor.  The second elements of Shedden/Caluza and 38 C.F.R. § 3.304(f) are also met.

The remaining question is whether there is a medical nexus between the Veteran's in-service stressor and his current PTSD.  The October 2011 VA psychiatrist letter provides such a medical nexus.  The psychiatrist noted that the Veteran's witnessing of the MVA is the cause of his PTSD.  This is supported by other VA treatment records that note a history of non-combat related PTSD and a past trauma related to witnessing an MVA.  Affording the Veteran the benefit of the doubt, the Board concludes that the final elements of Shedden/Caluza and 38 C.F.R. § 3.304(f) are also met.  38 U.S.C. § 5107(b) (2012).  

Based on the foregoing, the Veteran's claim for service connection for PTSD is granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

As new and material evidence sufficient to reopen the previously denied claim for service connection for hematuria has been received, the application to reopen is granted.

The appeal of entitlement to an increased rating for chronic lumbar strain is dismissed.

Entitlement to service connection for PTSD is granted.


REMAND

Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran's claims.  

With regard to the claim for service connection for a disability manifested by hematuria, the Veteran has not been afforded a VA examination to evaluate his claimed current diagnosis or an opinion on its etiology.  His only examination for this claim was in 1985, prior to his present claim of a current diagnosis.  That examination also failed to address the question of etiology.  As such, the claim must be remanded for new VA examination and opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).

With regard to the increased rating claims, the Veteran testified at his August 2017 Board hearing that his disabilities have worsened since his last VA examination.  Although the hearing testimony specifies worsening since the October 2011 VA examinations, not the more recent April 2014 examinations, it seems clear that the Veteran is complaining of worsening since the last examination, regardless of the date.  As such, these claims must also be remanded for new VA examinations.  See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

With regard to the TDIU claim, this claim is based on the functional effects of his service-connected left shoulder and left knee disability, as well as his above-granted PTSD.  As such, the implementation of the PTSD grant and further development and readjudication of the left should and left knee claims may affect the resolution of the TDIU claim.  The issues are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998).  The AOJ must first (1) implement the Board's grant of service connection for PTSD, and (2) develop and readjudicate the increased rating claims before readjudicating the TDIU claim. 

As the case is being remanded, the Board will take the opportunity to obtain any outstanding VA treatment records.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file any outstanding VA treatment records from the Baltimore VA Medical Center and any other VA facility identified by the Veteran.  All attempts to obtain these records should be documented in the claims file.  

2.  Thereafter, schedule the Veteran for VA examination(s) with appropriate examiner(s) to address the nature and etiology of his claimed disability manifested by hematuria, and the current nature and severity of his left shoulder and left knee disabilities.  The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examination(s).  This must be noted in the examination reports.

With regard to the hematuria claim, the examiner must identify any current disability manifested by hematuria.  Any necessary testing should be completed.  S/he should then state whether it is at least as likely as not (a 50 percent probability or greater) that such a disability that had its onset in service or was otherwise etiologically related to active service or was caused or aggravated (made worse) by his service-connected low back disability.  If the answers to the above questions are negative, the examiner should also opine on whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hematuria is a symptom of his low back disability.  

With regard to the left shoulder and left knee claims, the examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected left shoulder and left knee disabilities.  All appropriate testing, including range of motion testing, should be performed.  The examiner should also determine whether the Veteran is unable to maintain gainful employment as a result of his service-connected disabilities.  

Rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner(s) shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

3.  After completing the above actions, the Veteran's service-connection and increased-rating claims should be readjudicated.  Thereafter, and following the implementation of the Board's grant of service connection for PTSD (including assigning a disability rating and effective date), the TDIU claim should be readjudicated.  If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

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These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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.  38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs