Citation Nr: 1804058 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-13 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for pleurisy. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability evaluation based upon individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: John Berry, attorney ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel INTRODUCTION The Veteran had active duty service from May 1980 to May 1984. He also had subsequent reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claim for service connection for PTSD was previously denied in final rating decisions dated August 2003 and March 2008. As such, the issue had been adjudicated as whether new and material evidence had been submitted to reopen the claim. However, the evidence associated with the claims file since the issuance of the August 2003 and March 2008 decisions includes additional service and military personnel records. Such records were previously unavailable and include a re-enlistment examination as well as ship assignments for the Veteran. As a result, the Board has recharacterized the issue. and the claim will be adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c) (new and material evidence-service department records). Additionally, review of the claims file shows that the Veteran has been diagnosed with other current psychiatric disorders, including depression. The Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as is reflected on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (noting that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board further notes that there is a separate appeal regarding the denial of payment for an emergency room visit at a private hospital in December 2011. However, the Board is currently in the process of scheduling a hearing on that matter as requested by the Veteran. Therefore, that issue will be addressed in another decision at a later date. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for an acquired psychiatric disorder and to 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. The Veteran's claim for service connection for pleurisy was previously considered and denied by the RO in an August 2003 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance. 2. The evidence received since the August 2003 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a pleurisy disorder. 3. The Veteran's current residuals of a left ninth rib fracture are related to his military service and pleurisy therein. CONCLUSIONS OF LAW 1. The August 2003 rating decision that denied service connection for pleurisy is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2017). 2. The evidence received subsequent to the August 2003 rating decision is new and material, and the claim for service connection for pleurisy is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2016). 3. The Veteran's residuals of a left ninth fractured rib were incurred in active service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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, to include by triggering the Secretary's duty to assist. Id. at 118. The RO previously considered and denied the Veteran's claim for service connection for pleurisy in an August 1994 rating decision. At that time, the RO indicated that it had reviewed service records dated from 1980 through 1984. The RO specifically addressed in-service reports of pleurisy or chest pain in October 1981, November 1981, and December of 1981. Basis for denial The Veteran did not file an appeal or submit additional evidence in the year following the August 1994 denial of the claim. He later submitted a claim for service connection for pleurisy in January 1998. The RO denied that claim in a July 1998 rating decision, noting that no new and material evidence had been submitted. The Veteran subsequently filed another claim, which the RO denied again in an August 2003 rating decision. However, the Board notes that, at that time, the RO indicated that it had reviewed service treatment and personnel records for the period from May 1980 to February 1990. Such records were previously unavailable and include a re-enlistment examination and additional service treatment records and examinations. Additionally, review of the Veteran's service treatment records associated with the claims file show in-service reports of pleurisy, asthma, and subsequent treatment of such symptoms in 1980, 1981, 1982 and 1983. This fact appears to confirm that the RO did not have complete service treatment records at the time of the August 1994 and July 1998 rating decisions. As a result, the August 1994 and July 1998 rating decisions did not become final. 38 C.F.R. § 3.156(c). With regard to the August 2003 rating decision, the Board notes that the Veteran was notified of that decision and of his appellate rights; however, he did not file an appeal. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. The Board does note that additional service records were received following the August 2003 rating decision, however, these records were not relevant to the Veteran's pleurisy claim. 38 C.F.R. § 3.156(c). Therefore, the August 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The Veteran next submitted a claim for service connection for pleurisy in January 2012. The RO denied that claim in a January 2013 rating decision, noting a lack of new and material evidence. The evidence obtained since the January 2013 rating decision includes a February 2015 VA examination report, which included a positive nexus opinion for residuals of a left rib fracture, which the examiner opined was related to the in-service pleurisy diagnosis. Such evidence was not considered at the time of the August 2003 rating decision and related to a previously unestablished fact. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran's claim for service connection for pleurisy. 38 C.F.R. § 3.156(a). Turning to the merits of the claim, the Veteran's service treatment records show that he was treated for chest pain or pleurisy on several occasions throughout his active duty service from May 1980 to May 1984. In July 1996, PPD testing was positive. The Veteran was afforded a VA examination in March 1998. At that time, a history of pleurisy was noted, but pleural effusion, restrictive pulmonary disease, pulmonary hypertension, cor pulmonale, and asthma were not found, and a pleural biopsy was negative. The Veteran's VA medical records show that he has been treated for chest pain and chest congestion with drainage at various times during the relevant period. In May 2007, the Veteran reported having sharp left-sided chest pain, which was worse on inspiration. The treatment provider noted a history of pleurisy and indicated that the assessment at that time was also pleurisy. However, the Veteran's respiration was clear bilaterally, the chest wall was nontender to palpitation, and x-rays showed no infiltrates or effusions. Thus, it is unclear what the 2007 assessment was based upon. The Veteran was later afforded a VA examination in February 2015. The examiner found no pleural effusion or parenchymal scaring present. However, the examiner did find that the Veteran consistently reported chronic discomfort in the area of the left ninth rib and opined that the discomfort was likely due to a subacute or old rib fracture. The examiner opined that the old fracture was as likely as not due to the Veteran's in-service pleurisy episode. The Board finds that the February 2015 VA examiner's medical opinions are the most probative evidence of record in this case. First, while a May 2007 VA medical record indicated an assessment of pleurisy, chest x-rays and examination showed no effusion or abnormalities. Thus, this assessment appears to be based upon the Veteran's history of pleurisy and is not supported by the evidence of record. In contrast, the February 2015 VA examiner examined the Veteran in connection with x-rays performed at that examination and reviewed x-rays performed in December 1991, December 2013, and February 2014, before making a determination. As such, the Board finds that the February 2015 examiner's opinion is more probative in that it is supported by the medical evidence of record. The Board also notes that the Veteran has submitted lay testimony that he has never had a cracked rib. He asserts that his current disorder is instead pleurisy. The Veteran is certainly competent to report his experience and symptoms in service and thereafter. Lay persons may provide competent testimony as to observable symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Nevertheless, the Board finds that the February 2015 VA examiner's opinion is more probative in assessing whether the Veteran has current pleurisy and providing a medical diagnosis for his left-sided chest pain. The VA examiner considered the Veteran's reported medical history and complaints and performed and examination. She found no evidence of current pleurisy, but did find that a possible source of the Veteran's left-sided chest pain was instead residuals of a broken rib that was more likely than not related to his in-service pleurisy. Accordingly, the Board concludes that service connection for residuals of a fractured ninth rib is warranted. With regard to pleurisy, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Because the evidence shows that the Veteran does not have a current diagnosis of pleurisy, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). ORDER Service connection for residuals of a left ninth rib fracture (claimed as pleurisy) is granted. REMAND The claims file contains lay statements regarding the Veteran's alleged in-service stressors, which include claims of combat exposure, service with a Navy SEAL team that included body recovery, exposure to an IED explosion in the Persian Gulf War, witnessing the death of a friend, and his ship tipping onto its side near the Golden Gate Bridge. The Board notes that the RO has not yet undertaken any efforts to verify these stressors. Therefore, the Board finds that the AOJ should attempt to verify these stressors on remand. The Board also finds that the Veteran should be afforded a VA examination in connection with his claim for service connection for an acquired psychiatric disorder claim, as there are contradictory diagnoses in evidence. The September 2012 VA examiner found that the Veteran did not meet the criteria for PTSD; however, the Veteran's VA medical records show a diagnosis of PTSD, to include a letter from his treating doctor dated in February 2011. The Board further notes that the claim for entitlement to TDIU is inextricably intertwined with the service connection claim, as the Veteran has claimed that he cannot work due to PTSD. For this reason, the issue of entitlement to service connection for an acquired psychiatric disorder must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issue. Finally, any relevant outstanding medical records should be associated with the claims file, to include any Social Security Administration (SSA) disability decisions. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should request a copy of any decision to grant or deny SSA disability benefits to the Veteran. If the search for such a decision has negative results, the claims file should be properly documented as to the unavailability of the decision. 3. The AOJ should take all appropriate steps to verify the Veteran's claimed stressors, to include verification of all in-service incidents, as described by the Veteran over the course of the appeal. His alleged stressors have included, but are not limited to, claims of combat service/combat exposure, foreign service, service in the Persian Gulf War, service with a Navy SEAL team that included body recovery, recovery of refugees off the coast of Vietnam, exposure to an IED explosion in the Middle East, witnessing the death of a friend, and a ship tipping onto its side. If any records are classified, the AOJ should properly document the file and determine if any additional development can be conducted to generally confirm whether a stressor occurred (even if the details cannot be furnished). For example, the AOJ should consider whether there is a liaison to the United States Special Operations Command (USSOCOM) that may be able to provide verification. 4. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any and all psychiatric disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, lay statements and assertions, prior VA examination reports, and information pertaining to the claimed in-service stressor. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. In so doing, the examiner should consider the diagnoses of record and the results of any testing performed. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs