Citation Nr: 1804886 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-07 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim for service connection for vision impairment. 2. Whether new and material evidence has been received sufficient to reopen the claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and schizophrenia. 3. Entitlement to service connection for vision impairment. 4. Entitlement to service connection for a psychiatric disorder, to include PTSD, MDD, and schizophrenia. 5. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has modified the Veteran's claims to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim"). The issues of entitlement to service connection for vision impairment and a psychiatric disorder, to include PTSD, MDD, and schizophrenia; and to a compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed rating decision issued in April 2004, service connection for vision impairment and PTSD was denied. 2. The evidence received since the April 2004 rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for vision impairment. 3. The evidence received since the April 2004 rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder, to include PTSD, MDD, and schizophrenia. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for vision impairment. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, MDD, and schizophrenia. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156 (a), new evidence means evidence not previously submitted to agency decision makers. 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 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). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d at 1384; Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly received evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate decision to be made if evidence is new and material. Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C. §5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. §3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. In December 2003, the Veteran filed service connection claims for vision impairment and PTSD. In the application form, the Veteran contended that his claimed vision impairment was related to a hand grenade simulator device that exploded within 3 feet of his face. He stated that, as a result of the explosion, he was medevacked and blinded for approximately 2 to 3 weeks. Service treatment records (STRs) associated with the claims folder at the time included a January 1977 diagnosis of bilateral corneal abrasions secondary to a simulator explosion. With respect to his claimed PTSD, the Veteran stated that several soldiers in his battalion were killed while on watch by other soldiers who recently returned from Vietnam. The RO denied the claims in an April 2004 rating decision. The Veteran did not file an appeal, and the decision became final. The Veteran indicated in a September 2012 letter that his claimed PTSD is related to the in-service grenade simulator explosion. Specifically, the Veteran stated that he was involved in a war game during which a sergeant threw a grenade simulator on top of the Veteran's M113 personnel carrier. The Veteran stated that the sergeant did so "because of personal issues between us." See September 2012 correspondence. Upon his return to his company, the Veteran reportedly had a "real problem" trusting Non-Commissioned Officers (NCOs) and officers. Id. He also indicated that he was told to lie about the incident to investigators so as to protect the sergeant who threw the grenade. The Veteran stated that he told his superiors that he "didn't think he could do that" and was, consequently, stripped of his rank, security clearances, privileges; was given extra duties; and was harassed and badgered. Id. According to the Veteran, the incident led to drug use to try to cope with "all the confusion in [his] mind." Id.; see also February 2014 VA Form 9; December 2012 Statement in Support of Claim. In September 2012, the Veteran filed a petition to reopen his claim for service connection for PTSD. Additionally, in December 2012, the Veteran filed a petition to reopen his claim for service connection for vision impairment. The Veteran suggested that the in-service explosion from a grenade simulator may be related to corneal damage. In a May 2013 Statement in Support of Claim, the Veteran stated that his vision had continued to deteriorate since service. The Veteran filed a Notice of Disagreement (NOD) for both claims in October 2013. In the NOD, the Veteran indicated that he had a pre-existing mental illness that was aggravated by his active service. See also December 2013 correspondence. Upon review of the record, the Board finds, first, that new and material evidence has been received with respect to the Veteran's service connection claim for vision impairment. Reports that the Veteran suffered temporary blindness and corneal damage due to the in-service grenade simulator explosion are not new. However, following the April 2004 rating decision, the Veteran indicated that he continued to suffer deteriorating vision ever since the in-service incident. The Veteran is competent to testify to symptomatology observable to a layperson, such as continually deteriorating vision since a blinding explosion. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also finds that the Veteran's new testimony raises a reasonable possibility of substantiating the claim for service connection for vision impairment. Accordingly, the claim of entitlement to service connection for vision impairment is reopened. In addition, the Board finds that new and material evidence has been received with respect to the Veteran's service connection claim for a psychiatric disorder, to include PTSD, MDD, and schizophrenia. The Veteran did not contend that his claimed psychiatric disorder was related to the in-service grenade incident when the RO denied the claim in April 2004. The Veteran first raised this theory in a January 2009 letter. Specifically, the Veteran indicated that the incident was the result of personal problems with a sergeant and that other NCOs and officers retaliated against him because he was unwilling to lie about the incident. While service connection for substance abuse is precluded on a direct basis, 38 C.F.R. § 3.301, the Veteran contends that the in-service incident and retaliation by his superiors aggravated a pre-existing mental illness. The Veteran is competent to testify to his experiencing psychiatric symptoms observable to a lay person during his service, as well as to incidents such as the in-service grenade explosion and retaliation by his superiors. See Layno, 6 Vet. App. at 470. Moreover, the record includes diagnoses of PTSD, MDD, and schizophrenia. Therefore, the Board finds that the newly received testimony of a relation between the Veteran's claimed psychiatric disorder and his service raises a reasonable possibility of substantiating the claim for service connection for psychiatric disorder. As such, the Board must also reopen the claim of service connection for a psychiatric disorder, to include PTSD, MDD, and schizophrenia. ORDER New and material evidence having been received, the claim of entitlement to service connection for a vision impairment is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, MDD, and schizophrenia, is reopened; the appeal is granted to this extent only. REMAND Vision Impairment and Psychiatric Disorder Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Board finds that the new and material evidence of record constitutes competent evidence of a link between the Veteran's claimed vision impairment and his service. The new and material evidence received also reflects a link with his claimed psychiatric disorder. As discussed above, the Veteran stated that his vision continued to deteriorate after his service and that his claimed psychiatric disorder was aggravated by the in-service simulator grenade explosion and subsequent retaliation by his superiors. However, there is presently insufficient evidence of record to decide the claims. Moreover, the VA PTSD examination conducted in December 2012 is inadequate because the examiner did not apply the proper diagnostic criteria. Effective August 4, 2014, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45,094 (August 4, 2014). The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. The RO certified the service connection claim for a psychiatric disorder in November 2015. However, the December 2012 examination utilized the DSM-IV criteria. Accordingly, new examinations for both the Veteran's claimed psychiatric disorder, to include PTSD, MDD and schizophrenia; as well as his claimed vision impairment are warranted. In scheduling each of these examinations, the RO must follow the special duty to assist requirements discussed below for incarcerated veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995); M21-1, Part III, Subpart iv, Chapter 3, Section F, Topic 2. The Board notes that the in-service simulator grenade incident qualifies as personal assault. Accordingly, if there is a diagnosis of PTSD, the examiner must follow the guidance for PTSD based on in-service personal assault. The RO must also consider the regulations for claims of PTSD based on personal assault in readjudicating the claim. See 38 C.F.R. § 3.304 (f)(5); M21-1, Part III, Subpart iv, Chapter 4, Section O, Topic 4 (January 4, 2018). Bilateral Hearing Loss The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement because these individuals are entitled to the same care and consideration given to their fellow veterans. Bolton, 8 Vet. App. at 191. The Board recognizes that VA does not have the authority to require a correctional institution to release a veteran so that VA can provide him the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711. Nevertheless, VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination worksheets; or, (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton, 8 Vet. App. at 191. In affording an incarcerated veteran an examination, the RO must document substantial efforts to schedule and conduct the examination and associate such documentation to the claims folder. Additionally, Veterans Health Administration (VHA) compensation clinics must provide documentation that they have made substantial attempts to schedule and conduct the examination and have exhausted all possible venues for obtaining access to the incarcerated veteran for the examination. VA Adjudication Procedure Manual M21-1, Part III, Subpart iv, Chapter 3, Section F, Topic 2 (September 15, 2017). The record reflects that the Veteran is currently incarcerated. In addition, the record reflects that examinations to evaluate his claimed service-connected bilateral hearing loss were scheduled and, subsequently, cancelled due to failures to report. See January 2014 email correspondence; December 2012 Compensation and Pension Examination Note. The Board finds that the record lacks sufficient documentation of substantial efforts on part of the RO to afford the Veteran an examination. A January 2014 email indicates that the Veteran did not have sufficient funds to pay for his transportation to the VA examination. However, the Veteran stated in his February 2014 VA Form 9 that he was never informed of the examination or given the chance to respond to the RO. He also indicated that he was never made aware that he would have to pay for his transportation to the examination. The Board is well-aware of the logistical difficulties in affording an incarcerated veteran an examination. Accordingly, a new examination of the Veteran's service-connected bilateral hearing loss is warranted so as to ensure that all efforts to afford him an examination have been exhausted. In scheduling each of these examinations, the RO must follow the special duty to assist requirements reiterated here for incarcerated veterans. See Bolton, 8 Vet. App. at 191; M21-1, Part III, Subpart iv, Chapter 3, Section F, Topic 2. Simultaneously, the Board hereby notifies the Veteran that it is ultimately his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. With any required assistance of the Veteran, obtain any outstanding VA and/or private medical records and associate them with the claims file. 2. Following completion of the above, schedule a VA examination with an appropriate health professional to evaluate the current severity of his service-connected bilateral hearing loss. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report. In scheduling the examination, the RO must follow the special duty to assist requirements for incarcerated veterans. See Bolton, 8 Vet. App. at 191; M21-1, Part III, Subpart iv, Chapter 3, Section F, Topic 2. A complete rationale must be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, he or she should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Then, schedule a VA examination with an appropriate health professional to determine the nature and etiology of the Veteran's claimed vision impairment. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report. In scheduling the examination, the RO must follow the special duty to assist requirements for incarcerated veterans. See Bolton, 8 Vet. App. at 191; M21-1, Part III, Subpart iv, Chapter 3, Section F, Topic 2. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed vision impairment was caused or aggravated by the Veteran's active service, including the explosion of a stimulator grenade in service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. Further, schedule a VA examination with an appropriate health professional to determine the nature and etiology of the Veteran's claimed psychiatric disorder, to include PTSD, MDD, and schizophrenia. The claims folder should be made available to the examiner for review in connection with the examination, and the examiner should acknowledge such review in the examination report. In scheduling the examination, the RO must follow the special duty to assist requirements for incarcerated veterans. See Bolton, 8 Vet. App. at 191; M21-1, Part III, Subpart iv, Chapter 3, Section F, Topic 2. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any psychiatric disorder is caused or aggravated by the Veteran's active service, including the in-service simulator grenade explosion and subsequent retaliation by his superiors. In rendering the opinion, the examiner must also specifically address the Veteran's contention that he has a pre-existing mental illness that was aggravated by service. In so doing, the examiner must opine as to whether there is clear and unmistakable evidence both that the Veteran had a psychiatric disorder that pre-existed service and that it was not worsened by service. The examiner is reminded that the clear and unmistakable evidentiary standard is an onerous one. Clear and unmistakable evidence is evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Further, if there is a diagnosis of PTSD, the examiner must follow the guidance for PTSD based on in-service personal assault. See 38 C.F.R. § 3.304 (f)(5). The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 5. Thereafter, readjudicate the issues on appeal. If there is a diagnosis of PTSD, the RO must follow the adjudication procedures for PTSD based on in-service personal assault. See M21-1, Part III, Subpart iv, Chapter 4, Section O, Topic 4. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ CAROLINE B. FLEMING 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).