Citation Nr: 1802651 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-33 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been presented to reopen a service connection claim for a right shoulder injury. 2. Entitlement to service connection for a right shoulder injury. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for pharyngitis as a result of exposure to mustard gas. 5. Entitlement to service connection for cold asthma as a result of exposure to mustard gas. REPRESENTATION Veteran represented by: Veterans' Advocates of Michigan, PLLC ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1961 to February 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that the instant matters were before it in March 2014, at which time the Board declined to reopen a claim of entitlement to service connection for a right shoulder injury and denied the issues of entitlement to service connection for a nervous condition, service connection for PTSD, and service connection for cold asthma. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In April 2016, the Court vacated the Board's March 2014 decision and remanded the matters for additional proceedings consistent with the Memorandum decision. The matters were thereafter returned to the Board. In September 2016, the Board remanded the issues to obtain available Social Security Administration records. In March 2014, the Board also remanded the issue of entitlement to service connection for pharyngitis to obtain a VA examination. In a separate September 2016 remand, the Board also remanded the issue of entitlement to service connection for pharyngitis to obtain Social Security Administration records. The Board finds that there has been substantial compliance with the prior March 2014 and September 2016 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the RO had originally adjudicated the Veteran's claim as entitlement to service connection for PTSD and entitlement to service connection for a nervous condition. However, the medical evidence of record reveals diagnoses of various acquired psychiatric disorders. Accordingly, the issue has been combined and amended as reflected on the cover page. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a right shoulder injury, service connection for an acquired psychiatric disorder, to include PTSD, and service connection for pharyngitis as a result of exposure to mustard gas 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 January 2001 rating decision that denied the petition to reopen the previously denied claim of entitlement to service connection for a right shoulder injury was not appealed and no new and material evidence was submitted during the appeal period; the decision is final. 2. Some of the evidence received since that prior denial relates to unestablished facts necessary to substantiate the claim. 3. In November 2017, prior to the promulgation of a decision by the Board, the Veteran submitted correspondence, via his representative, stating that he wished to withdraw from appellate review his claim of entitlement to service connection for cold asthma. CONCLUSION OF LAW 1. The January 2001 rating decision that denied the petition to reopen the previously denied claim of entitlement to service connection for a right shoulder injury is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. New and material evidence has been submitted, and the claim of entitlement to service connection for a right shoulder injury is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for withdrawal of the claim of entitlement to service connection for cold asthma have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence The Veteran's claim seeking entitlement to service connection for a right shoulder injury was previously denied in a January 2001 rating decision. Because the Veteran did not appeal the decision to the Board, and new and material evidence was not submitted within the one-year period after the decision was issued, the decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017.) Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The basis of the January 2001 rating decision that denied the petition to reopen the previously denied claim of entitlement to service connection for a right shoulder injury was that new evidence submitted in connection with the claim was not material as it was not directly relevant to the issue considered, evidence of a current condition. The evidence considered at the time of the January 2001 rating decision included the Veteran's service treatment and personnel records and private treatment records. The evidence received since that time includes the Veteran's statements contending that his right shoulder injury is the result of an eight-foot fall during his service in Berlin and medical treatment records from October 2001 to February 2006 documenting the Veteran's treatment for right shoulder impingement, cuff tendinosis, and AC joint arthrosis. As such evidence relates to an unestablished fact necessary to substantiate the claim, namely, the presence of a current disability, it is new and material, and the claim of entitlement to service connection for a right shoulder injury is reopened. Withdrawal of Claim A substantive appeal may be withdrawn in writing, by the Veteran or his authorized representative, at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In November 2017, prior to the Board promulgating a decision, the Veteran submitted correspondence, via his representative, stating that he wishes to withdraw his claim of entitlement to service connection for cold asthma. Therefore, the Board finds that the November 2017 correspondence satisfies the requirements for withdrawal of a substantive appeal as to the issue of entitlement to service connection for cold asthma. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.202 (2017). As the pertinent criteria for withdrawal of the issue of entitlement to service connection for cold asthma have been satisfied, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. The Board consequently does not have jurisdiction to review it, and it is dismissed. ORDER New and material evidence having been presented, the claim of entitlement to service connection for a right shoulder injury is reopened. To this limited extent only, the claim is granted. The appeal as to the issue of entitlement to service connection for cold asthma is dismissed. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to adjudication of the claim. The Veteran contends that service connection for a right shoulder injury is warranted as a result of landing on his right shoulder when he suffered an eight-foot fall through a window during training during the winter of 1961 to 1962 when stationed at the Berlin Wall. He also contends that service connection for an acquired psychiatric disorder and pharyngitis is warranted due to an accidental spill during training demonstrations in late 1962 when his company, "B" Company, 2nd Battle Group, 6th Infantry, was contaminated with Mustard Gas. He also attributes that PTSD is warranted due to a possible confrontation with Soviet Armed Forces when stationed at the Berlin Wall. Post-service treatment records show treatment and diagnoses of right shoulder impingement syndrome, right shoulder supraspinatus tendinosis, and right shoulder AC joint arthrosis. Although VA records show the Veteran has no psychiatric history or mental health symptoms, an August 2000 Social Security Disability evaluation reflects that the Veteran has significant anxiety. A January 1996 psychological consultation report also states that the Veteran has diagnoses of adjustment disorder with anxiety and depression and a delusional disorder. The Veteran has not yet been afforded a VA examination in connection with his service connection claims for a right shoulder injury or acquired psychiatric disorder, to include PTSD. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran's probable fall in service and confrontation with Soviet Armed Forces, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of the claims of entitlement to service connection for a right shoulder injury and acquired psychiatric disorder, to include PTSD. See McLendon, 20 Vet. App. 79, 81 (2006). As for the Veteran's claim of entitlement to service connection for pharyngitis, the Veteran was afforded an examination in May 2014. The examiner determined that the Veteran did not have a diagnosis of pharyngitis. The examiner reported that the Veteran has never had treatment for his throat condition. The examiner noted that the Veteran had Beta strep throat during service which resolved and that there was no diagnosis of recurrent or chronic pharyngitis available. Significantly, however, the examiner did not address the Veteran's service treatment records documenting a diagnosis of pharyngitis or his post-service treatment and diagnoses of persistent pharyngitis, bronchitis, possible laryngopharyngeal reflux, asthma, reactive airway dysfunction syndrome, pulmonary nodules, and chronic dysphagia. As such, the Board finds that an additional examination is warranted since the examiner's statements regarding the Veteran's diagnoses and treatment are inaccurate and reflect a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Updated VA and private treatment records should also be requested on remand. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated him for pharyngitis, right shoulder, and psychiatric disorder conditions. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. Additionally, obtain updated and comprehensive VA treatment records since February 2017. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and her representative notified of such. 2. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA joint examination to determine the nature and etiology of his right shoulder injury. The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following: a. Identify all currently diagnosed right shoulder conditions. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from November 2007 onward. The right shoulder condition need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. b. With respect to the diagnosed right shoulder condition, is it at least as likely as not (50 percent probability or greater) that the condition arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the right shoulder diagnoses of record and the Veteran's reports that he experienced an eight-foot fall through a window, landed on, and injured his right shoulder. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA mental disorders examination. The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following: a. Identify all currently diagnosed mental health disabilities. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from November 2007 onward. The psychiatric disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of anxiety, adjustment disorder with anxiety and depression, and delusional disorder. All of these disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that adjustment disorder is not a current disability, then the explanation should include a discussion of the medical records, prior VA examinations, as well as the Veteran's lay statements regarding his condition. If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why. b. With respect to each diagnosed psychiatric disability, is it at least as likely as not (50 percent probability or greater) that the disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the psychiatric diagnoses of record and the Veteran's reports that he experienced a confrontation with Soviet Armed Forces and was exposed to mustard gas during a training exercise. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's throat condition. The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following: a. Identify all currently diagnosed throat disabilities. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from November 2007 onward. The throat condition need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of persistent pharyngitis, bronchitis, possible laryngopharyngeal reflux, asthma, reactive airway dysfunction syndrome, pulmonary nodules, and chronic dysphagia. All of these disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that persistent pharyngitis is not a current disability, then the explanation should include a discussion of the medical records, prior VA examinations, as well as the Veteran's lay statements regarding his condition. If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why. b. With respect to each diagnosed throat condition, is it at least as likely as not (50 percent probability or greater) that the disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the post-service throat diagnoses of record, the service treatment records showing a diagnosis of pharyngitis, and the Veteran's reports that he has experienced problems with breathing, throat discomfort, difficulty swallowing, and wheezing since his exposure to mustard gas during service. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs