Citation Nr: 1804630	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  13-33 769A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) 

2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.

3. Entitlement to service connection for high blood pressure.

4. Entitlement to service connection for a right shoulder condition.


REPRESENTATION

Veteran represented by:	Seth Berman, Attorney 



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Erin J. Carroll, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1980 to April 1983. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. Jurisdiction has since been transferred to the RO in Philadelphia, Pennsylvania. 

In January 2016, the Board remanded this matter to afford the Veteran a hearing.

In March 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file.

The issues of entitlement to service connection for an acquired psychiatric disorder, high blood pressure, and a right shoulder condition 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 final August 2009 rating decision denied the Veteran's claim for service connection for PTSD because the evidence failed to demonstrate a diagnosis of PTSD; although notified of the decision, the Veteran did not express an intent to appeal the decision, and new and material evidence was not added within one year of that decision.

2. Additional evidence associated with the claims file since the August 2009 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claim for service connection for an acquired psychiatric disorder, to include PTSD, and it raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1. The August 2009 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017).

2. As evidence received since the August 2009 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C. § 5108; 38 C.F.R. § 3.104 (a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017).

However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a).

The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Veteran's claim for service connection for PTSD was denied in an August 2009 rating decision. The RO determined that the evidence of record failed to demonstrate that the Veteran had a diagnosis of PTSD at that time. At the time of the August 2009 rating decision, the evidence of record included partial post-service VA treatment records from August 2008 to June 2009, as well as his service treatment records.

The Veteran was notified of the decision and his appellate rights in August 2009. No further communication regarding his claim was received until May 2012, when VA received his petition to reopen. Therefore, the August 2009 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103.

Evidence added to the record since the August 2009 rating decision includes the Veteran's testimony from the March 2017 Board hearing; additional VA treatment records; and some private treatment records. Notably, these records indicate that the Veteran has been diagnosed with PTSD. See October 2013 VA treatment record and April 2012 private treatment record from MeadowWood Behavioral Health System.

The Board finds that such evidence is new because it was not before the RO at the time of the August 2009 rating decision. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection; namely a diagnosis of PTSD that may be related to his military service. Thus, the Board finds that the evidence submitted is both new and material, and the claim is reopened.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened.


REMAND

A review of the record indicates the existence of potentially outstanding VA medical treatment records that are possibly relevant to the Veteran's claims. He has indicated that he received treatment at the VA Medical Center (VAMC) in Philadelphia, Pennsylvania as early as 1989. See July 2009 VA Form 21-4142. Although records from that facility for the period from May 1998 to the present day have been associated with the claims file, records prior to May 1998 have not. There also appear to be outstanding VA medical records from December 1999 to December 2000 from the Coatesville, Pennsylvania VAMC. Additionally, the Veteran has indicated that he received treatment from several other facilities, including the Belmont County VA Outpatient Clinic in Pittsburgh, Pennsylvania, the Horsham Clinic in Broomall, Pennsylvania, Valley Forge General Hospital, and the Charter Fairmount Institute in Philadelphia, Pennsylvania. See July 2009 VA Form 21-4142. As the record does not reflect that any effort has been made to procure these potentially outstanding records, upon remand the RO should undertake such action, and properly document all attempts, if necessary. 

The Veteran contends that he developed PTSD as a result of his military service. Review of his VA treatment records and private treatment records indicates that the Veteran has been diagnosed with PTSD on several occasions. Further, at the March 2017 Board hearing, the Veteran testified that he was hit in the head with a radio by a fellow soldier during service. See March 2017 Hearing Testimony page 9. The Veteran's service treatment records corroborate his reports of this incident during active duty in October 1980.

In light of the Veteran's current psychiatric diagnosis, and his reported in-service stressor, which is corroborated by his service treatment records, it may be concluded that the Veteran has met the "low threshold" of C.F.R. 3.159 (c)(4)(i)(C) and is entitled to an examination, in order to obtain an opinion concerning the etiology of his psychiatric disability.  

Additionally, the Veteran has not been provided an examination in connection with his high blood pressure claim. The evidence of the presence of the claimed disability and service treatment records that appear to indicate that he had a seemingly elevated blood pressure reading (128/84) upon his discharge in April 1983, as well as on several other occasions during service, triggers the requirement to examine the Veteran and obtain a medical opinion concerning the relationship between any current disability and service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Additionally, the Veteran has not been provided with an examination for his right shoulder disability. The current evidence of record indicates that the Veteran was diagnosed with right glenohumerol degenerative joint disease based upon an x-ray performed in 2012. See August 2013 VA treatment record from the Hudson Valley VAMC.  Furthermore, at the March 2017 hearing, the Veteran testified that he injured his right shoulder during service when he fell off of a truck. Thus, a remand is necessary to provide the Veteran with an examination in order to obtain an opinion concerning the etiology of his right shoulder disability.  38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file any and all non-duplicative VA treatment records relating to the Veteran, to include those from the Philadelphia VAMC from 1989 to May 1998, from the Coatesville VAMC from December 1999 to December 2000, and from the Belmont VA Outpatient Clinic, as well as all VA treatment records relating to the Veteran to the present.  

All attempts to procure these records should be documented, including any negative responses.

2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his 
claims, including records from the Horsham Clinic, the Charter Fairmount Institute, and Valley Forge General Hospital.

All attempts to procure these records should be documented, including any negative responses.

3. After completing the above development, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disorder. The claims file should be made available for review.

Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the post-service treatment records and the Veteran's lay statements.

Following a review of the record, the examiner is asked to accomplish the following:

a) Identify all present psychiatric disorders.

b) For each currently diagnosed psychiatric disorder, to include PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disorder had its onset in service.  If PTSD is diagnosed, the specific stressor/s should be identified.  

All opinions provided should be thoroughly explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

4. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any current hypertension. The claims file should be made available for review.

Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the service treatment records and the Veteran's lay statements.

The VA examiner should provide a medical opinion addressing whether it is at least as likely as not (a probability of 50 percent or greater) that any current hypertension diagnosis is causally or etiologically due to service.

All opinions provided should be thoroughly explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

5. Schedule the Veteran for a VA examination to ascertain the nature and etiology of his current right shoulder disability. The claims file should be made available for review.

Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the service treatment records and the Veteran's lay statements.

The VA examiner should provide a medical opinion addressing whether it is at least as likely as not (a probability of 50 percent or greater) that any current right shoulder disability is causally or etiologically due to service.

All opinions provided should be thoroughly explained.  If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

6. Thereafter, readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond.

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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs