Citation Nr: 18142332 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-23 461 DATE: October 15, 2018 ORDER Whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic restrictive lung disease (CRLG) is granted. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for anxiety neurosis is granted. Entitlement for service connection for anxiety neurosis (anxiety disorder) is granted. REMANDED Entitlement to service connection for chronic restrictive lung disease (CRLG) is remanded. FINDINGS OF FACT 1. In a May 1982 decision, the Board of Veterans’ Appeals (Board) denied service connection for anxiety neurosis and asthma. 2. Evidence added to the record since the May 1982 Board decision is not cumulative or redundant of the evidence of record at the time of the decision, and raises a reasonable possibility of substantiating the claims of service connection for anxiety neurosis and asthma. 3. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran has an anxiety disorder that was caused by or otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The May 1982 Board decision, which denied the claims of entitlement to service connection for anxiety neurosis and asthma is final. 38 U.S.C. § 7104. 2. New and material evidence has been received since the May 1982 Board decision denying for entitlement to service connection for anxiety neurosis. 38 U.S.C. §§ 5108, 7104. 3. The criteria for entitlement to service connection for an anxiety disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1968 to August 1970. These matters are before the Board on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board does not need to address compliance with the VCAA in the context of the issues of whether new and material evidence has been received regarding the Veteran’s claim for service connection for chronic restrictive lung disease and anxiety neurosis, and service connection for an anxiety disorder. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). New Material Evidence Pertinent procedural regulations provide that nothing in 38 U.S.C. § 5103A shall be construed to require VA to reopen a claim that has been disallowed, except when new and material evidence is presented or secured, as described in 38 U.S.C. § 5108. See 38 U.S.C. § 5103A (f) (2012). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a) (2018). 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. Id. 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. Id. The United States Court of Appeals for Veterans Claims (Court) has held that new evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156 (a) to have a finally denied claim reopened under 38 U.S.C. § 5108 (2012). Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Id. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic restrictive lung disease (CRLG). The Veteran contends that he has presented new and material evidence to reopen his claim of service connection for chronic restrictive lung disease. The question for the Board is whether the Veteran has presented new and material to reopen his claim of service connection for CRLD. The Board finds that the Veteran has provided the satisfactory evidence to reopen his claim. Here, the claim of entitlement to service connection for CRLD was originally denied in a December 1974 rating decision. The claim was denied because there was no competent evidence that the Veteran’s condition was incurred in, due to, or was caused by his military service. In May 1982, the Board declined to find that new and material evidence had been submitted to reopen the service connection claim. Pursuant to the Veteran’s current claim to reopen service connection, in a June 2013 rating decision, the RO denied the Veteran’s application to reopen his claim of service connection for CRLD because the evidence submitted was found not to be new and material. Although the RO did not reopen the claim, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran’s claim. Jackson v. Principe, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). The Veteran has provided a statement, which reported that he suffered pneumonia during service and was hospitalized. Moreover, the Veteran contends his alleged occurrence of pneumonia is related to his current CRLD. The evidence previously of record did not establish a nexus between the Veteran’s CRLD and military service. The newly submitted additional evidence, the Veteran’s report that he suffered an episode of pneumonia in-service, in which he claimed resulted in his hospitalization, which in turn caused or aggravated his current CRLD raises a reasonable possibility of substantiating the Veteran’s claim because it establishes a connection between the Veteran’s claimed CRLD and his military service. As the above reports are presumed credible for the limited purpose of reopening the claim, the Board finds that it qualifies as material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for CRLD is thus reopened. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for anxiety neurosis. The question for the Board is whether the Veteran has presented new and material to reopen his claim of service connection for anxiety neurosis. The Board finds that the Veteran has provided the satisfactory evidence to reopen his claim. Here, the claim of entitlement to service connection for anxiety neurosis was originally denied in a December 1974 rating decision. Subsequently, the Veteran’s claim for service connection for anxiety neurosis was denied last in a Board decision issued in May 1982. However, the Veteran did not appeal the May 1982 Board decision and it became final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. The claim was denied because there was no competent evidence that the Veteran’s condition was incurred in, due to, or was caused by his military service. Pursuant to the Veteran’s claim to reopen service connection, in a June 2013 rating decision, the RO granted the Veteran’s application to reopen his claim of service connection for an anxiety neurosis but denied the underlying service connection claim. The Veteran’s underlying service connection claim was denied because the evidence did not show that the Veteran’s anxiety neurosis was incurred or aggravated by his military service. Although the RO reopened the claim, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran’s claim. As the May 1982 Board decision is the last final disallowance regarding the claim, the Board must review all of the evidence submitted since that time to determine whether the Veteran’s claim should be reopened and readjudicated on a de novo basis. The credibility of the new evidence is presumed for the purpose of determining whether the new evidence is material. Justus, 3 Vet. App. at 512-13. The Veteran submitted a July 2017, which linked his current anxiety disorder to his military service. This evidence qualifies as new and material evidence. Service Connection for an Anxiety Disorder Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran seeks service connection for an anxiety disorder. As to the first element of service connection, current disability, the July 2017 private medical opinion indicates that the Veteran has a diagnosis of a generalized anxiety disorder. Therefore, this element is met. Turning to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, the Veteran has reported that he experienced severe racism during his time in the military that he contends contributed to his current anxiety disorder. The Veteran reported an incident during basic training when a sergeant ordered him to crawl to spot because he was Puerto Rican. The Veteran also expressed that he had a difficult time with “training to kill” due to his religious upbringing. As there is no reason to doubt the Veteran’s accounts, the Board finds the Veteran’s aforementioned in-service events as credible. Therefore, element (2) is satisfied. The question for the Board is whether the Veteran’s claimed anxiety disorder is related to his military service. The Veteran’s service treatment records do not contain any notation, treatment, or diagnosis related to an anxiety disorder. However, the Veteran’s June 1970 Report of Medical History noted that Veteran suffered from nervous trouble in-service. The Veteran’s post-service treatment records related to the treatment of anxiety date back to December 1970, close in proximity to the Veteran’s military service. In a statement dated September 1974, H.C., M.D., reported having treated the Veteran on several occasions from December 1970 through November 1972 for frequent episodes of nervous and physical excitation and diagnosed the Veteran with anxiety reactions. Additionally, a statement from Dr. F. in September 1974 reported treating the Veteran for weakness, nausea, stomach discomfort and nervousness on several occasions and assigned a diagnosis of anxiety. The Veteran’s more recent treatment records indicate ongoing treatment since June 2005 with the Veteran reporting anhedonia, social isolation, anxiety, psychomotor delay, irritability, and episodes of crying. The Veteran has submitted a July 2017 private medical opinion authored by D.B-H., clinical mental health counselor. The private counselor opined that the Veteran’s military service greatly contributed to the Veteran’s onset and continued features of his claimed anxiety disorder. The counselor opined that the Veteran’s strong familial, moral, and cultural predispositions made him more susceptible to moral injury, which caused or exacerbated the Veteran’s anxiety disorder. The Board finds that evidence is at least at relative equipoise as to whether the Veteran’s anxiety disorder is related to his military service. The evidence indicates that the Veteran sought medical treatment related to his claimed anxiety disorder in December 1970, which was four months following his discharge from service. Moreover, the objective medical evidence also establishes a continuity of symptomology as the Veteran has experienced ongoing issues with anxiety since his discharge from service. Coupled with the July 2017 private medical, the Board finds that evidence is at least at relative equipoise as to whether the Veteran’s anxiety disorder is related to his military service. As such, the benefit of the doubt is resolved in the Veteran's favor, and entitlement to service connection for an anxiety disorder must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for chronic restrictive lung disease (CRLG) is remanded. The Veteran contends that during service he suffered an episode of pneumonia, in which he was hospitalized. The Veteran contends that this in-service pneumonia is directly related to his CRLD. The Veteran’s service treatment records (STRs) indicate that the Veteran suffered a cold that was accompanied with a sore throat and a high temperature in-service that lasted at least three days. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran’s claimed disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Veteran’s attorney has asserted that record does not possess the Veteran’s complete STRs. Moreover, the Board notes that the Veteran’s STRs did not contain any notation of a hospitalization for pneumonia, thus further development is needed to obtain any outstanding STRs. A review of the record also indicates that the Veteran’s VA medical treatment records have not be associate with the file, thus additional development is needed as to his VA treatment records as well. The matter is REMANDED for the following actions: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain any additional evidence from all VA and non-VA health care providers who have treated him for his claimed restrictive lung disease that is not currently of record, including any private treatment records related to ongoing treatment for the aforementioned disability. 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Contact the appropriate records repositories and request complete copies of any additional outstanding STRs to include all clinical records and in-service hospitalizations for pneumonia. 4. After all records and/or responses received from each contacted entity have been associated with the claim (to the extent possible), schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his current chronic restrictive lung disease. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Provide diagnoses for all current respiratory disabilities, to include chronic restrictive lung disease and those noted during the appeal period. (b) Is it at least likely as not (a fifty percent probability or greater) that the Veteran’s claimed chronic restrictive lung disease is related to the Veteran’s active duty service, to include an in-service cold or pneumonia? (c) Is it at least likely as not (a fifty percent probability or greater) that any identified respiratory disability is related to the Veteran’s active duty service, to include an in-service cold or pneumonia? The examiner should consider the lay testimony of record. Specifically, the Veteran’s contention that his current restrictive lung disease is a product of an in-service episode of pneumonia. A detailed rationale supporting the examiner’s opinion must be provided. 5. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel