Citation Nr: 1804083 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-22 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral leg disability, other than peripheral neuropathy. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral eye disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. REPRESENTATION Veteran represented by: Guam Office of Veterans Affairs ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from January 1966 to December 1967 and had service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Board notes that the Veteran has submitted multiple claims to reopen previously denied claims for the issues on appeal. With regard to the Veteran's PTSD claim, the record reflects that an August 2011 rating decision declined to reopen the issue of entitlement to service connection for PTSD. In September 2011, the Veteran submitted correspondence again seeking to reopen the issue of service connection for PTSD. As this correspondence was received within one year of the August 2011 rating decision, the Board liberally construes the September 2011 correspondence as a notice of disagreement. Therefore, the August 2011 rating decision is the rating decision currently on appeal with regard to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for PTSD. Additionally, the record reflects that an August 2013 rating decision declined to reopen the claims of entitlement to service connection for hypertension, arthritis, a bilateral leg disability, and a bilateral eye disability. In November 2013, the Veteran submitted correspondence seeking to reopen these issues. As this correspondence was received within one year of the August 2013 rating decision, the Board liberally construes the November 2013 correspondence as a notice of disagreement. Therefore, the August 2013 rating decision is the rating decision currently on appeal with regard to the issues of whether new and material evidence has been received to reopen claims of entitlement to service connection for hypertension, arthritis, a bilateral leg disability, and a bilateral eye disability. Although the Veteran's current claim seeks to reopen his claim of entitlement to service connection for PTSD, the Board will broaden the claim under Clemons v. Shinseki, 23 Vet. App. 1 (2009), and consider whether new and material evidence has been submitted to reopen a claim for an acquired psychiatric disorder, to include PTSD and major depressive disorder. Additionally, the Board notes that in a March 2017 rating decision, the RO adjudicated claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities. Therefore, the issue on appeal pertaining to the bilateral legs has been recharacterized to exclude consideration of peripheral neuropathy. The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO for further development. 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). FINDINGS OF FACT 1. An August 2008 rating decision confirmed and continued a previous denial of service connection for hypertension on the basis that no new and material evidence had been received to reopen the claim. The decision was not appealed and is final. 2. Evidence received since August 2008 is duplicative or cumulative of evidence previously of record and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. 3. An August 2008 rating decision denied entitlement to service connection for a bilateral leg disability on the basis that there was no evidence of a current bilateral leg disability, nor any evidence of an in-service incurrence. The decision was not appealed and is final. 4. Evidence received since August 2008 does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral leg disability, other than peripheral neuropathy. 5. An October 2006 rating decision denied entitlement to service connection for a bilateral eye disability on the basis that there was no evidence the Veteran's eye disability was related to service. The decision was not appealed and is final. 6. Evidence received since October 2006 is duplicative or cumulative of evidence previously of record and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral eye disability. 7. An October 2006 rating decision denied entitlement to service connection for arthritis on the basis that there was no evidence that arthritis occurred in service or was manifest to a compensable degree within a year of discharge. The decision was not appealed and is final. 8. Evidence received since October 2006 does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for arthritis. 9. An August 2008 rating decision declined to reopen a previous denial of service connection for PTSD on the basis that no new and material evidence had been received to reopen the claim. The decision was not appealed and is final. 10. Evidence received since August 2008 is not duplicative or cumulative of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2008 rating decision, which declined to reopen a claim of entitlement to service connection for hypertension, is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. The criteria to reopen the claim of entitlement to service connection for hypertension are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The August 2008 rating decision, which denied entitlement to service connection for a bilateral leg disability, is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 4. The criteria to reopen the claim of entitlement to service connection for a bilateral leg disability, other than peripheral neuropathy, are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The October 2006 rating decision, which denied entitlement to service connection for a bilateral eye disability, is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.1103 (2005). 6. The criteria to reopen the claim of entitlement to service connection for a bilateral eye disability are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The October 2006 rating decision, which denied entitlement to service connection for arthritis, is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.1103 (2005). 8. The criteria to reopen the claim of entitlement to service connection for arthritis are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 9. The August 2008 rating decision, which declined to reopen a claim of entitlement to service connection for PTSD, is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA must comply with its duties to notify and assist. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran of any information and medical or lay evidence necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify. 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). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes providing a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4). In April 2014 correspondence, the Veteran suggested that he should have been afforded a "comprehensive VA medical and mental examination" to corroborate his claims on appeal. The Board acknowledges that, to date, the Veteran has not been provided with VA examinations concerning his claimed hypertension, arthritis, bilateral leg disability (excluding peripheral neuropathy), and bilateral eye disability. However, a VA medical examination or opinion is not required unless new and material evidence is presented. 38 C.F.R. § 3.159 (c)(4)(iii); see also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003) ("without the introduction of new and material evidence, VA is not required to provide a medical examination or opinion"). As will be detailed further below, new and material evidence has not been submitted with regard to the Veteran's claims to reopen service connection for hypertension, arthritis, a bilateral leg disability, and a bilateral eye disability. Under these circumstances, VA is not required to provide an examination in connection with these claims. Accordingly, the Board finds that VA has complied with its VCAA duties to notify and assist. II. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing 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 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A. New and Material Evidence of Hypertension The Veteran's claim of entitlement to service connection for hypertension was first denied in an October 2006 rating decision. Although VA treatment records showed the Veteran was being treated for hypertension, there was no evidence to indicate that his hypertension was related to active military service. An August 2008 rating decision declined to reopen the claim of service connection for hypertension. The Veteran did not appeal that decision and it became final. Consequently, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The pertinent evidence of record at the time of the August 2008 rating decision included the Veteran's service treatment records (STRs) and VA treatment records. The evidence received since the August 2008 rating decision includes additional VA treatment records. This evidence is new because it was not previously associated with the claims file. However, the evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal. The additional VA treatment records pertain only to the treatment of the Veteran's hypertension, a condition which was already diagnosed at the time of the August 2008 rating decision. The records provide no positive evidence related to the etiology of the disability. As such, the evidence is cumulative of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and does not raise a reasonable possibility of substantiating the claim. As the Board finds that that this recently received evidence is not new and material, the Veteran's claim for service connection for hypertension is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). B. New and Material Evidence of a Bilateral Leg Disability, Other Than Peripheral Neuropathy The Veteran's claim of entitlement to service connection for a bilateral leg disability was denied in an August 2008 rating decision on the basis that there was no evidence the Veteran had a current bilateral leg disability, and no evidence of a bilateral leg disability incurred during active service. The Veteran did not appeal that decision and it became final. Consequently, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The pertinent evidence of record at the time of the August 2008 rating decision included the Veteran's STRs and VA treatment records. The evidence received since the August 2008 rating decision includes additional VA treatment records. This evidence is new because it was not previously associated with the claims file. However, the evidence is not material because it does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral leg disability, other than peripheral neuropathy. While the additional VA treatment records indicate that the Veteran has been diagnosed with bilateral osteoarthritis of the knee, there is still no evidence to suggest that this condition was incurred in service. Despite having been afforded ample opportunity to do so, the Veteran has provided no evidence establishing in-service incurrence, or otherwise any indication that his bilateral leg disability may be associated with service. As the Board finds that that this recently received evidence is not material, the Veteran's claim for service connection for a bilateral leg disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). C. New and Material Evidence of a Bilateral Eye Disability The Veteran's claim of entitlement to service connection for a bilateral eye disability previously denied in an October 2006 rating decision. Although VA treatment records showed the Veteran was being treated for an eye disability-specifically, cataracts-there was no evidence to indicate that his disability was related to active military service. The Veteran did not appeal that decision and it became final. Consequently, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The pertinent evidence of record at the time of the October 2006 rating decision included the Veteran's STRs and VA treatment records. The evidence received since the October 2006 rating decision includes additional VA treatment records. This evidence is new because it was not previously associated with the claims file. However, the evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal. The additional VA treatment records pertain only to the treatment of an eye disability that was already diagnosed at the time of the October 2006 rating decision. The records provide no positive evidence related to the etiology of the disability. As such, the evidence is cumulative of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and does not raise a reasonable possibility of substantiating the claim. As the Board finds that that this recently received evidence is not new and material, the Veteran's claim for service connection for a bilateral eye disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). D. New and Material Evidence of Arthritis The Veteran's claim of entitlement to service connection for arthritis was previously denied in an October 2006 rating decision on the basis that there was no evidence the Veteran was being treated for arthritis, and no evidence of arthritis in service or within one year of discharge. The Veteran did not appeal that decision and it became final. Consequently, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The pertinent evidence of record at the time of the October 2006 rating decision included the Veteran's STRs and VA treatment records. The evidence received since the October 2006 rating decision includes additional VA treatment records. This evidence is new because it was not previously associated with the claims file. However, the evidence is not material because it does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for arthritis. While the additional VA treatment records indicate that the Veteran has been diagnosed with bilateral osteoarthritis of the knee, there is still no evidence to suggest that arthritis was incurred in service or manifested to a compensable degree within a year of discharge. Despite having been afforded ample opportunity to do so, the Veteran has provided no evidence to indicate that his arthritis may be associated with service. As the Board finds that that this recently received evidence is not material, the Veteran's claim for service connection for arthritis is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). E. New and Material Evidence of PTSD The Veteran's claim of entitlement to service connection for PTSD was first denied in an April 2004 rating decision on the basis that the Veteran did not have a current diagnosis of PTSD. October 2006 and August 2008 rating decisions declined to reopen the claim of service connection for PTSD. The Veteran did not appeal those decisions and they became final. Consequently, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The pertinent evidence of record at the time of the August 2008 rating decision included the Veteran's service treatment records (STRs) and VA treatment records. The pertinent evidence received since the August 2008 rating decision includes additional PTSD stressor statements, additional VA mental health treatment records, and VA examination reports from July 2011 and August 2013. The August 2013 VA examiner determined that the Veteran's claimed stressors are adequate to support criterion A for a diagnosis of PTSD and are related to the Veteran's fear of hostile military or terrorist activity (although the remainder of the criteria for PTSD were not met). The examiner did not diagnose the Veteran with PTSD, but instead diagnosed him with major depressive disorder. The Board finds that this evidence is new and material. It is not cumulative or redundant of the evidence previously of record. Moreover, it relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, reopening the claim of entitlement to service connection for PTSD is warranted. ORDER New and material evidence not having been received, the application to reopen a claim for service connection for hypertension is denied. New and material evidence not having been received, the application to reopen a claim for service connection for a bilateral leg disability, other than peripheral neuropathy, is denied. New and material evidence not having been received, the application to reopen a claim for service connection for a bilateral eye disability is denied. New and material evidence not having been received, the application to reopen a claim for service connection for arthritis is denied. New and material evidence having been received, the application to reopen a claim for service connection for PTSD is reopened. REMAND After a review of the record, the Board finds that further development is required prior to adjudicating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran was afforded VA examinations in connection with his claim for PTSD in July 2011 and August 2013. The examiners declined to diagnose the Veteran with PTSD. The August 2013 examiner instead diagnosed the Veteran with depression and concluded that it was not related to the Veteran's military service. However, the examiner did not support this conclusion with a detailed rationale or explanation of any kind. Moreover, in subsequent VA treatment notes, the Veteran suggests that his depression is related to his service in Vietnam. The Board finds that the VA examinations currently of record do not adequately assess the nature and severity of the Veteran's psychiatric disability. Therefore, on remand, the Veteran must be afforded a new exam in order to ensure there is a complete record upon which to decide his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (where VA has undertaken to provide examinations, the examinations must be adequate). Accordingly, the case is REMANDED for the following actions: (Please note, 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).) 1. Identify and obtain any outstanding VA treatment records that are not already associated with the claims file. All efforts to obtain additional evidence must be documented in the electronic record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of all currently present psychiatric disabilities, to include PTSD and major depressive disorder. The examiner must review the claims file and must note that review in the report. The examiner must provide a complete rationale for all opinions expressed. Based on the examination and a review of the record, the examiner is requested to provide the following opinions: (a) Diagnose all psychiatric disabilities present during the appeal period. If PTSD is not diagnosed, the examiner should explain why the criteria for a diagnosis are not met. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disability that is related to any aspect of active service? In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If an opinion cannot be offered without resorting to mere speculation, the examiner should explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 3. Then, readjudicate the Veteran's claim based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs