Citation Nr: 1805561	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-28 865A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a mental condition, to include Post Traumatic Stress Disorder (PTSD).

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a liver condition, to include Hepatitis C.

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

4. Entitlement to service connection for a liver condition, to include Hepatitis C.

5. Entitlement to service connection for traumatic brain injury (TBI).

6. Entitlement to an increased rating in excess of 30 percent disabling for nephritis.

7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1969 to February 1971.

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from March 2005, May 2010, October 2010 and July 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Board notes that a claim of entitlement to a TDIU has been raised by the evidence of record as part of the increased rating claim for nephritis. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). Under Rice, the Board has jurisdiction over the TDIU claim and, for the purpose of clarity, has separately captioned the issue on the title page.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for bipolar disorder, PTSD, anxiety disorder, and hepatitis C, entitlement to an increased rating for nephritis, and entitlement 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 August 1985 rating decision that denied the Veteran's claim for service connection for a mental condition, to include PTSD was not appealed and is final.

2. Evidence received since the April 1985 rating decision denying service connection for a mental condition, to include PTSD is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim, does relate to an unestablished fact necessary to substantiate the claim, and does raise a reasonable possibility of substantiating the claim.

3. The March 2005 rating decision that denied the Veteran's claim for service connection of a liver disorder, claimed as Hepatitis C, was not appealed and is final.

4. Evidence received since the March 2005 rating decision denying service connection for a liver disorder, claimed as Hepatitis C, is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim, does relate to an unestablished fact necessary to substantiate the claim, and does raise a reasonable possibility of substantiating the claim.

5. The competent, credible, and probative evidence of record is against a finding that the Veteran suffers from a TBI caused or aggravated by his service.


CONCLUSIONS OF LAW

1. The August 1985 rating decision that denied the Veteran's claim for service connection for a mental condition, to include PTSD, is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1985).

2. New and material evidence has been received to reopen the claim of entitlement to service connection for a mental condition, to include PTSD. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017).

3. The March 2005 rating decision that denied the Veteran's claim for service connection for a liver disorder, claimed as Hepatitis C, is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 

4. New and material evidence has been received to reopen the claim of entitlement to service connection for a liver disorder, claimed as Hepatitis C. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017).

5. A TBI was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Advise and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) provides VA's duties to notify and assist a claimant with development of a claim for compensation. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). 

As it pertains to VA's duty to obtain examination, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As addressed more fully below, the Board finds no credible evidence that the Veteran incurred TBI during service or as a result of service-connected disability. Thus, there is no duty on the part of VA to obtain examination or opinion.

Relevant Laws and Regulations

New and Material Evidence

I. Reopening Claims 

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing 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). 

Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam).

In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118.

II. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a mental disorder, to include PTSD.

An August 1985 rating decision denied the Veteran's claim for service connection for a mental condition, to include PTSD, on the basis that neither PTSD or any other acquired psychiatric disorder was shown to be related to service. By letter dated August 29, 1985, the RO notified the Veteran of the August 1985 denial and his appellate rights. This decision is final as the Veteran did not submit a notice of disagreement, or new and material evidence, within one year of this notice of decision. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1985).

In July 2016, the Veteran's representative submitted a psychological evaluation from a private psychologist. The psychologist opined that the Veteran's previous psychological diagnoses are incorrect. The psychologist notes that "the results of this evaluation consistently suggest that previous diagnoses (of bipolar disorder, schizoaffective disorder, anxiety disorder NOS, etc.) were due to various mental health professionals attempting to explain aspects of (the Veteran's) functioning without fully comprehending or appreciating the severity and chronicity of his symptoms associated with paranoid schizophrenia." The psychologist notes "consequently all symptoms are considered to be either a direct or indirect artifact of the paranoid schizophrenia." See Psychological Evaluation, dated July 15, 2016.

The psychologist also noted that there were no symptoms prior to the Veteran's service in Korea. The psychologist stated that "to a reasonable degree of medical certainty that it is more likely than not that the stress associated with his service in Korea created the paranoid schizophrenia and that this chronic illness is present and affecting his functioning on a daily basis because he has not been treated properly." Id.

The evidence provided is new and material to the matter on appeal. The Board finds that the evidence, when considered broadly, submitted could reasonably substantiate the claim, by triggering VA's duty to obtain a VA examination to consider this evidence in relation to the other evidence of record. Therefore, the Board finds that the claim is reopened based on new and material evidence.

III. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a liver condition, to include Hepatitis C.

A March 2005 rating decision denied the Veteran's claim for service connection for Hepatitis C on the basis that such disorder was not shown to be related to service. By letter dated March 7, 2005, the RO notified the Veteran of the March 2005 denial and his appellate rights. This decision is final as the Veteran did not submit a notice of disagreement, or new and material evidence, within one year of this notice of decision. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004).

The Veteran's representative submitted medical evidence on the possible causal relationship between membranous glomerulonephritis and Hepatitis C. The evidence provided is new and material to the matter on appeal. The Board finds that the evidence, when considered broadly, submitted could reasonably substantiate the claim, by triggering VA's duty to obtain a VA examination to consider this evidence in relation to the other evidence of record. Therefore, the Board finds that the claim is reopened based on new and material evidence.

Service Connection

Under applicable VA law, 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.A. §§ 1110, 1131. 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 establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Entitlement to service connection for TBI.

The Veteran seeks service connection for TBI. In this case, however, the Veteran does not have a current diagnosis of TBI. He has been examined by several psychologists and psychiatrists for a host of psychological conditions, however, the Veteran's records do not demonstrate any reference to or complaints of TBI. The Board has reviewed the Veteran's VA treatment records and do not find a current diagnosis or any symptomology that has been attributed to TBI.

More importantly, the Veteran's service records are silent for any complaints of head injury which could form the basis for TBI injury. Notably, the Veteran has not provided any credible details of any particular head injury in service. Thus, as there is no credible evidence of head injury in service which could form the basis for TBI, the Board finds that the claim for service connection for TBI must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

New and material evidence having been received, the claim for entitlement to service connection for a mental condition, to include PTSD, is reopened.

New and material evidence having been received, the claim for entitlement to service connection for a liver disorder, claimed as Hepatitis C, is reopened.

Entitlement to service connection for TBI is denied.





REMAND

Unfortunately, the remaining claims on appeal must be remanded. While the Board regrets the additional delay in this regard, it is necessary to ensure a complete record. The Board finds that several of the remaining claims require additional development.  

Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. In this case, there are several conditions which do not have sufficient competent medical evidence to properly adjudicate the claim.

Finally, as note in the INTRODUCTION, the Board finds that the issue of issue of entitlement to TDIU has been reasonably raised. Accordingly, in light of the Court's decision in Rice, the Board directs the RO to proceed with the appropriate development of this issue.

Accordingly, the case is 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. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records and private medical records, should be obtained.

2. Send the Veteran additional VCAA notice as to the issue of entitlement to a TDIU. 

3. Schedule the Veteran for a new VA examination by a psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric condition, to include paranoid schizophrenia, anxiety disorder, schizoaffective disorder, and PTSD. The claims folder must be made available to and reviewed by the examiner.

The examiner should diagnose any and all current psychiatric disorders. If there are different diagnoses than those of record, the examiner should attempt to reconcile the diagnoses.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's acquired psychiatric condition(s) had their onset in service, is/are related to his active military service, or have been caused OR aggravated beyond the normal progress of the disorder by his service-connected disabilities.

In providing this opinion, please consider and address the following:
* In-service disciplinary infractions.
* In-service assessment of psychosomatic symptoms.
* A September 1981 treatment note stating the Veteran suffered from dysthymic disorder, intermittent explosive disorder, and substance abuse. 
* Reports in September 1981 of auditory and visual hallucinations.
* A November 1981 treatment note stating Veteran suffered from paranoia and schizophrenia.
* A January 1987 hospitalization for substance abuse, noting dysthymic disorder and borderline personality disorder.
* A 1987 private hospitalization record wherein the examiner indicated that the Veteran presented with dysphonia secondary to work promotion
* A November 1987 treatment note diagnosing the Veteran with schizophrenia.
* A January 1988 treatment note indicating diagnosis of possible schizoaffective disorder and substance abuse and prescription of psychtropic medications.
* A March 1988 treatment note diagnosing the Veteran with schizophrenia.
* Treatment in October 1988 for schizophrenia.
* A September 1991 hospitalization for a psychiatric condition.
* A December 1991 hospitalization for substance abuse, noting a diagnosis of bipolar disorder.
* A June 1993 hospitalization for suicidal ideation and substance abuse.
* A September 2001 hospitalization for depression.
* A December 2004 VA Examination diagnosing the Veteran with bipolar disorder.
* An August 2005 treatment note diagnosing the Veteran with adjustment disorder, anxiety disorder and substance abuse disorder.
* A January 2006 hospitalization for psychiatric treatment after suicide attempt.
* An August 2010 treatment note diagnosing the Veteran with bipolar disorder.
* The findings of the Veteran's private psychologist contained in the Private Evaluation, dated July 15, 2016, including the date of onset of symptoms occurring in 2010.
* History of incarceration and hospitalizations.
* Post-service illegal drug use, including cocaine, heroin, and amphetamines.

The examiner is requested to provide a thorough rationale for any opinion provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.

4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected glomerulonephritis. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, and all clinical manifestations of the service-connected glomerulonephritis should be reported in detail. 

Specifically, the examiner should address all symptoms and functional impairments attributable to his service-connected glomerulonephritis:

Any opinion expressed by the VA examiner should be accompanied by a complete rationale.

5. Schedule the Veteran for a VA examination to determine the etiology of the Veteran's claimed liver condition, to include Hepatitis C. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, and all clinical manifestations of any liver conditions should be reported in detail. 

After a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hepatitis C is etiologically related to any incident of active duty service or otherwise had its onset during active duty service, including the military history of venereal disease and the onset of glomerulonephritis in service.

A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved in this case.

The examiner is asked to review the medical treatise evidence, including articles indicating that Hepatitis C is associated with membranous glomerulonephritis and membranous nephropathy, submitted by the Veteran, and specifically include them in their opinion and supporting rationale.

If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

6. After completing the above, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any of the claims remain 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 matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs