Citation Nr: 1803574 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-11 244A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence was received in order to reopen the claim for service connection for a left eye disability. 2. Whether new and material evidence was received in order to reopen the claim for service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for PTSD. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for a kidney disability. 6. Entitlement to a rating in excess of 30 percent for idiopathic contracture of the middle and ring fingers of the right hand with osteoarthritis (previously noted to include right index finger) (hereinafter "right hand disability"). 7. Entitlement to a total disability rating based on individual unemployability (TDIU) for service-connected disabilities. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from October 1961 to January 1983, which includes a period of service in the Republic of Vietnam from July 1969 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Regardless of the RO's determination as to whether new and material evidence has been received, the Board must determine on its own whether new and material evidence has been submitted to reopen the claims of service connection for a left eye disability and PTSD. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board notes that the TDIU issue was not expressly raised in prior rating decisions, but was reasonably construed as a request for TDIU based on the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability rating-whether expressly raised by a Veteran or reasonably raised by the record-is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. 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). Herein, the Board reopens the service connection claim for PTSD. The issues of entitlement to service connection for (reopened) PTSD, hypertension, and a kidney disability, as well as an increased rating for a right hand disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). Also, the Board observes that following the issuance of a July 2016 rating decision denying service connection for coronary artery disease, as relevant here, the Veteran submitted, in March 2017, medical records from his cardiologist. This evidence does not appear to have yet been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. A July 1983 RO decision that denied service connection for a left eye disability was not appealed and the decision became final. 2. New and material evidence has not been received since the July 1983 decision to substantiate the claim of entitlement to service connection for a left eye disability. The newly received evidence is either cumulative or redundant of evidence previously of record, and does not raise a reasonable possibility of substantiating the claim. 3. A March 2004 RO decision that denied service connection for PTSD was not appealed and the decision became final. 4. New and material evidence has been received since the March 2004 decision to substantiate the claim of entitlement to service connection for PTSD. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 1983 rating decision that denied the Veteran's claim of entitlement to service connection for a left eye disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. In the absence of new and material evidence, the criteria to reopen the service connection claim for a left eye disability have not been met. 38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The March 2004 rating decision that denied the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 4. The criteria to reopen the service connection claim for PTSD have been met. 38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Neither the Veteran in this case nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Petitions to Reopen Service Connection Claims, Laws and Regulations Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 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. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis upon which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). 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) (2017). 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). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection. 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 submitted 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. A. Left Eye Disability The Veteran originally filed a claim for entitlement to service connection for a left eye disability in April 1983. The RO initially denied the claim in a July 1983 rating decision on the grounds that there was no evidence that the Veteran's left eye disability existed prior to service and was not aggravated or otherwise related to service. The Veteran did not appeal the July 1983 decision, nor did he submit new and material evidence within one year of notification of the rating decision; it therefore became final as to the evidence then of record, and is not subject to revision on the same basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Evidence received since the July 1983 rating decision includes VA treatment records. These records show that the Veteran either did not endorse any eye problems, or wore glasses and had no other vision changes or glaucoma. These records also do not contain any opinions regarding aggravation or incurrence of a left eye disability during service. Essentially, these records do not indicate an association between the Veteran's current disability and service that has not already been considered. While the Board finds that the Veteran is sincere in his belief that his eyesight was worsened due to service, the record still does not contain evidence of a relationship between the claimed disability and service or aggravation during service of a preexisting condition. Generally speaking, in order to be considered new and material evidence, a submission cannot simply be a restatement of evidence that was considered in the prior decision, as that evidence would not be "new." All of the evidence received since the July 1983 rating decision is "new" in that it was not of record at the time of the respective decision. However, none of the new evidence is "material" because it does not relate to the unestablished element of a nexus in this case (either by aggravation of preexisting left eye condition or incurrence of a left eye disability during service). 38 C.F.R. § 3.159(c)(1). Accordingly, the new evidence does not raise a reasonable possibility of substantiating the claim and thus is not sufficient to warrant a reopening of the Veteran's claim. This additional evidence is, therefore, not both new and material, as contemplated by the pertinent law and regulations, and cannot serve as a basis to reopen the Veteran's claim of service connection for a left eye disability. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Based on the foregoing, the evidence received since the July 1983 rating decision is not material because it does not make a previously unestablished fact more likely to be established and it does not raise the possibility of reasonably substantiating 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. See Shade, 24 Vet. App. at 118. As new and material evidence to reopen the finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not for application and the claim is denied. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). B. PTSD The RO initially considered and denied a claim for service connection for PTSD in March 2004 as there was no evidence of symptoms or treatment in service, medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, or a link, established by medical evidence between current symptomatology and the claimed in-service stressor. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of the March 2004 rating decision; therefore, it became final as to the evidence then of record, and is not subject to revision on the same basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. In this regard, the Board points out that since the final denial in March 2004, VA amended its rules for adjudicating PTSD claims in order to relax the evidentiary standard for establishing the required in-service stressor in certain cases. See 75 Fed. Reg. 39843-52 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). For a previously denied PTSD claim, new and material evidence is still required as the regulatory amendment is not considered liberalizing under 38 C.F.R. § 3.114. To reopen a claim under the new § 3.304(f)(3), VA will accept a Veteran's lay statement regarding an in-service stressor - "fear of hostile military or terrorist activity" - as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to "hostile military or terrorist activity." Furthermore, if review of the record discloses a previously submitted lay statement demonstrating "fear of hostile military or terrorist activity," such statement will be sufficient for reopening a claim if the Veteran's record otherwise demonstrates service in a location involving exposure to "hostile military or terrorist activity." See VBA Training Letter 10-05 (Revised) (November 15, 2010). In this instance, the Veteran's personnel records confirm service in Vietnam. He has presented statements in the record attesting to the stressors related to fear of hostile military or terrorist activities that he encountered and was subject to in Vietnam. See Statement in Support of Claim, received March 12, 2003; Correspondence, received July 17, 2003; Statement in Support of Claim for PTSD, received March 10, 2011. Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Therefore, in light of the above and upon consideration of the Veteran's stressor statements during the course of the appeal, the claim is reopened. ORDER New and material evidence has not been received to reopen a service connection claim for a left eye disability. New and material evidence has been received to reopen a service connection claim for PTSD. (CONTINUED ON NEXT PAGE) REMAND Remand is necessary to obtain any outstanding, relevant medical records and to provide the Veteran with VA examinations, as discussed below. A statement received in October 2003 from a licensed clinical social worker noted that the Veteran had been receiving PTSD treatment from the Vet Center since March 2003. These records have not been requested. Therefore on remand, all of the Veteran's Vet Center treatment records since March 2003 should be obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam) (indicating that documents, such as medical records generated by VA, are considered constructively part of the record before the Board). VA treatment records show a positive screen for PTSD in November 2014 and August 2015. Furthermore, regulatory amendments in 2010 changed the evidentiary standards regarding stressors based on a Veteran's fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010)(to be codified at 38 C.F.R. § 3.304 (f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). The regulation provides that lay evidence alone may establish an alleged stressor where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See 38 C.F.R. § 3.304(f); see also Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,846-48 (outlining why the regulation requires an opinion by a VA psychiatrist or psychologist or one with whom VA has contracted, and specifically discussing the qualifications of those psychiatrists or psychologists that perform VA C&P examinations). Thus, a VA examination is warranted to determine if the PTSD is based upon the Veteran's fear of hostile military or terrorist activity. The Veteran previously underwent VA examinations for hypertension and a kidney disability in October 2011. However, the examiner did not provide an opinion on direct service connection for either disability. Not only must the medical opinion clearly consider direct service connection, it must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (vacatur and remand may be warranted where the Board has failed to provide an adequate statement of reasons or bases for its determinations). Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Board observes that the Veteran had service in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed to herbicide agents therein. While current VA regulations do not provide hypertension as a presumptive disability associated with herbicide agent exposure, the National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32, 540, 32, 549 (June 8, 2010); 75 Fed. Reg. 81, 332, 81, 333 (December 27, 2010). As there is evidence indicating that there may be an association between hypertension and herbicide agent exposure, the designated examiner should comment the likelihood of any such association. Indeed, without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities. Colvin v. Derwinski, 1 Vet. App. 171 (1991). With regard to the increased rating claim on appeal, the Veteran was last examined for his right hand disability in December 2010. Since then, he has expressed increased worsening of his disability and that it has prevented him from maintaining substantially gainful employment. See Notice of Disagreement, received May 30, 2012. The Board is without the expertise necessary to determine the extent of worsened symptoms exhibited by the Veteran's disability. "VA regulations specifically require the performance of a new medical examination ... [when] 'evidence indicated there has been a material change in a disability or that the current rating may be incorrect.'" Caffrey v. Brown, 6 Vet. App. 377, 381 (quoting 38 C.F.R. § 3.327(a)) (1994). In claims for a rating increase, it is first and foremost a priority to ensure that the most current assessment of the service-connected disability picture is of record. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Finally, the issue of entitlement to a TDIU cannot be adjudicated until the service connection and rating issues on appeal here are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, these issues are 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. Request the necessary authorization from the Veteran to obtain all outstanding treatment records from the applicable Vet Center that he has received PTSD treatment from since March 2003, for inclusion in the claims file. 2. Obtain and associate with the claims file updated VA treatment records since December 2015. 3. Then, schedule the Veteran for VA examination to determine and clarify the nature and etiology of the Veteran's psychiatric disorder, to include PTSD. The claims file should be made available to the examiner for review. The examiner should offer an opinion as to the following: a) Does the Veteran have a DSM diagnosis of PTSD related to his reported stressors? b) For each psychiatric disability entity other than PTSD diagnosed, opine whether such diagnosis is at least as likely as not (a 50 percent or better probability) etiologically related to the Veteran's service. c) For each psychiatric disability entity other than PTSD diagnosed (including depression), opine whether such diagnosis is at least as likely as not (a 50 percent or better probability) etiologically related to any of the Veteran's service-connected disabilities. A complete rationale for all opinions must be provided. If the examiner 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 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(s). 4. Schedule the Veteran for VA examination to determine and clarify the nature and etiology of the Veteran's hypertension. The claims file should be made available to the examiner for review. The examiner should identify whether the Veteran has a current diagnosis for hypertension and offer an opinion as to the following: a) Opine whether the Veteran's current diagnosis for hypertension is at least as likely as not (a 50 percent or better probability) had its onset during service or is otherwise related to it, including as due to his presumed in-service herbicide agent exposure during Vietnam service. ** In providing the above opinion, the examiner should consider the NAS 2006 and 2008 updates which concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32, 540, 32, 549 (June 8, 2010); 75 Fed. Reg. 81, 332, 81, 333 (December 27, 2010). b) Opine whether the Veteran's current diagnosis for hypertension is at least as likely as not (a 50 percent or better probability) proximately due to OR AGGRAVATED by a psychiatric disorder, including PTSD, anxiety, and depression. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. 5. Schedule the Veteran for VA examination to determine and clarify the nature and etiology of the Veteran's kidney disability. The claims file should be made available to the examiner for review. The examiner should identify all diagnosed kidney disabilities and offer an opinion as to the following: a) Opine whether any kidney disability at least as likely as not (a 50 percent or better probability) had its onset during service or is otherwise related to it. b) Opine whether any kidney disability is at least as likely as not (a 50 percent or better probability) proximately due to, or aggravated by, the Veteran's hypertension including any prescribed medication for hypertension. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. 6. Schedule the Veteran for a VA examination to assess the current nature and severity of the service-connected right hand disability. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. All opinions provided should include a complete rationale regarding the functional impairments of the Veteran's service-connected right hand disability. 7. After completing the above and conducting any additional development deemed necessary, including obtaining any updated treatment records, readjudicate the claims on appeal in light all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 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. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs