Citation Nr: 1802095 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-09 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of an injury to the right elbow, right shoulder and bilateral knees and if so, whether service connection is warranted. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). 5. Entitlement to a compensation under 38 U.S.C. § 1151 for heart disease due to failure of VA to provide proper medical treatment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty September 1977 to August 1979. He had a period of active duty training from April 1985 to August 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A hearing before the Board was scheduled in May 2017. Notice of the hearing was sent to the address of record and was not returned as undeliverable. The regularity of the mail is presumed. The Veteran failed to appear; consequently, there are no outstanding hearing requests of record. 38 C.F.R. § 20.704(d). The issue of service connection for residuals of an injury to the right elbow, right shoulder and bilateral knees on the merits, as well as the issues of service connection for sleep apnea, increased evaluation for PTSD, TDIU, and compensation under 38 U.S.C. § 1151, 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 March 1998 rating decision denied the claim for residuals of an injury to the right elbow, right shoulder and bilateral knees; the Veteran did not perfect an appeal of that decision and no relevant evidence was received within one year of the decision. 2. The evidence submitted since the March 1998 rating decision is relevant and probative of the issue at hand. CONCLUSIONS OF LAW 1. The March 1998 rating decision, which denied service connection for residuals of an injury to the right elbow, right shoulder and bilateral knees, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the March 1998 rating decision, which denied service connection for residuals of an injury to the right elbow, right shoulder and bilateral knees, is new and material, and the claim is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board believes no discussion of VA's compliance with the notice and assistance provisions is necessary at this time. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. There is no prejudice to the Veteran in light of the reopening of the claim and it is anticipated that any deficiencies will be remedied by the actions directed in the remand section of this decision. The Veteran seeks to reopen a previously denied claim for service connection for residuals of an injury to the right elbow, right shoulder and bilateral knees. By a March 1998 rating action, the RO denied the claim on the basis that the Veteran failed to submit evidence which demonstrated the existence of the claimed conditions since his release from active service and the possible relationship to service. The Veteran appealed the decision and a statement of the case was issued in June 1999. The Veteran failed to perfect the appeal by filing a timely VA Form 9. 38 C.F.R. § 20.302(b). No relevant evidence was submitted within one year of the date on which notice of the decision was issued. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Accordingly, that decision is final. 38 U.S.C. § 7105. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). At the time of the March 1998 rating decision, the record included only service treatment records, which were negative for the claimed conditions. Since the March 1998 rating decision, new evidence has been added to the electronic record that is material to the Veteran's claim. Notably, the Veteran has submitted statements concerning the nature of his claims. In a March 2010 statement, the Veteran indicated that he injured his elbow and shoulder during the same incident when he injured his service-connected right wrist. VA outpatient treatment records document complaints of right elbow, right shoulder, and bilateral knee pain, as does the December 2010 VA examination. Radiographic reports dated in May 2017 show arthritis in the bilateral knees. This evidence was not before the RO in March 1998 and it is not cumulative or redundant evidence then of record. The Veteran's statements contribute to a more complete picture of the nature and etiology of the claimed conditions. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The medical evidence of record contains current complaints and treatment for his right elbow, right shoulder, and knees. The Board therefore finds that the new evidence is material, and that it raises a reasonable possibility of substantiating the claim. Moreover, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Board finds that new and material evidence has been added to the record and the claim must be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER The application to reopen the claim for service connection for residuals of an injury to the right elbow, right shoulder and bilateral knees is granted. REMAND Prior to rendering a decision on the merits of the issue of service connection for residuals of an injury to the right elbow, right shoulder and bilateral knees, as well as the issues of service connection for sleep apnea, increased evaluation for PTSD, TDIU, and compensation under 38 U.S.C. § 1151, additional development and adjudication is necessary. The Veteran was not provided VA examinations in connection with the issues of service connection for sleep apnea and residuals of an injury to the right elbow, right shoulder and bilateral knees. The Veteran indicated that he hurt his elbow and shoulder, in the same incident he injured his service-connected right wrist. He further maintains he has continued problems with his right elbow, right shoulder, and knees since his discharge from service. In his June 2010 claim, he indicated that he was diagnosed with sleep apnea "years ago" but had never been tested. The Board finds a remand for VA examinations is necessary. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A (a)(2). The Veteran last underwent a VA examination to assess the severity of his service-connected PTSD in April 2011, over six years ago. VA must provide a new examination when the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Therefore, as the Veteran was last afforded a VA examination in 2011, the Veteran should be provided another VA examination to ascertain the current severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). With regard to the claim for compensation under 38 U.S.C. § 1151, the Veteran alleges he suffered a massive heart attack in August 2008 that was preventable. Specifically, he asserts that he was turned away for treatment by the Worcester VA outpatient clinic in July 2008 when he presented with complaints of pressure like pains in his chest and back. He further maintains that as a result of the heart attack he now has a severely damaged heart that causes exhaustion and shortness and breath when he attempts physical activity or goes about his daily activities. See September 2009 statement. First, it appears the appellate record is incomplete with respect to this claim. Notably, via an August 2009 letter, the AOJ requested records from the Worcester Outpatient Clinic. The letter requested that if records were unavailable, the reason for unavailability be provided. The record does contains some records from the Worcester Outpatient Clinic. However, there are no records from the July 2008 time frame when he alleges that he was turned away after seeking treatment. The record does not contain any reason for unavailability. Moreover, the August 2008 records from the Boston Medical Center (where the Veteran was treated for the heart attack) have not been associated with the claim folder. Such records must be obtained. 38 C.F.R. § 3.159. Once these records have been obtained, an examination is necessary to determine whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in the lack of providing medical treatment as alleged. 38 U.S.C. § 5103A. Updated VA treatment records, from May 2017 to the present, should also be obtained upon remand. 38 C.F.R. § 3.159. The adjudication of the claim for TDIU could be impacted by a favorable resolution of any of the issues that have been remanded. Thus, the Board finds the issue of entitlement to TDIU is inextricably intertwined with the other issues that are being remanded; as such, the adjudication of the issue of entitlement to TDIU must be deferred. See Harris v Derwinski, 1 Vet. App. 80 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of his response, the RO must obtain all outstanding (a) VA treatment records pertinent to the issues, dated from May 2017 to the present and (b) records from the Worcester VA outpatient clinic from July 2008 to August 2008, and the Boston Medical Center dated in August 2008. All attempts to secure this evidence must be documented in the claim file by the RO and VA facilities must provide negative responses if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After receipt of all additional treatment records, schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of the Veteran's claimed sleep apnea and residuals of an injury to the right elbow, right shoulder, and bilateral knees. The electronic record, including a copy of this remand, must be made available to the examiner as part of the examination, and the examiner must indicate in his/her report whether the electronic record was reviewed. All indicated tests and studies should be completed. Right elbow, right shoulder, and bilateral knees: The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed right elbow, right shoulder, and bilateral knee disability had its onset during active service or is any way related to his active duty service and/or is proximately due to, the result of, or aggravated by (beyond the natural progression of the disease) the service-connected right wrist disability. Sleep apnea: The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed sleep apnea disability had its clinical onset during active service or is in any way related to his active duty service. The Veteran's statements regarding the history of in-service injury, the objective medical from his military service, post service medical records, and any other pertinent clinical findings of record, must be considered and discussed. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After receipt of all additional treatment records, schedule the Veteran for a VA psychiatric examination to determine the current degree of severity of his service-connected PTSD. The electronic record, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should elicit a complete history from the Veteran. The examination report should include a full psychiatric diagnostic assessment and an explanation of the significance of the current levels of psychological, social, and occupational functioning due to the PTSD. It is most essential the examiner discuss the underlying rationale for all opinions, preferably citing to specific evidence in the file supporting conclusions. 4. After receipt of all additional treatment records, schedule the Veteran for an appropriate VA examination to determine whether he has heart disease due to failure of VA to provide proper medical treatment in July 2008. The examiner should note the Veteran contends that he suffered a massive heart attack in August 2008 that was preventable. Specifically, he asserts that he was turned away for treatment by the Worcester VA outpatient clinic in July 2008 when he presented with complaints of pressure like pains in his chest and back. He claims that as a result of the heart attack he now has a severely damaged heart that causes exhaustion and shortness and breath when he attempts physical activity or goes about his daily activities. Bearing in mind the Veteran's contentions and after reviewing the medical evidence of record, the examiner must specifically address the following questions: Does the Veteran have additional heart disease or disability as a result of failure of the Worcester VA outpatient clinic to provide treatment in July 2008 when he asserts he presented with complaints of pressure like pain in his chest and back? If so, what is the additional disability? If there is additional disability, is it at least as likely as not (50 percent or greater probability) that any additional disability was (i) caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in failing to provide treatment in July 2008, or (ii) was due to an event not reasonably foreseeable? In other words, did any action or inaction by VA caregivers cause additional disability or constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? If so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? ** In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. ** In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran 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 appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs