Citation Nr: 18143936 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 15-16 705 DATE: October 23, 2018 ORDER New and material evidence has been received to reopen the previously denied claim for service connection for rheumatoid arthritis, and to this extent only, the appeal is granted. New and material evidence has been received to reopen the previously denied claim for service connection for an acquired psychiatric disorder, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a rating in excess of 40 percent for a lumbar strain with degenerative disc disease (lumbar spine disability) is remanded. Entitlement to an increased rating for a traumatic brain injury (TBI), currently rated as 40 percent disabling prior to January 9, 2015, and 70 percent thereafter is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance / housebound is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a rheumatoid arthritis was last denied in a January 2005 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. 2. The Veteran’s claim for service connection for an acquired psychiatric disorder was last denied in a July 2008 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for rheumatoid arthritis have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 2. The criteria to reopen the claim for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. §3.156 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1974 to September 1979. He also had subsequent reserve service. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing. A transcript of his testimony is of record. Petitions to Reopen Generally, 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 (2018). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2018). 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 Court has held that 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 1. Whether new and material evidence has been received to reopen a claim of service connection for rheumatoid arthritis Service connection for rheumatoid arthritis was initially denied in a March 2002 rating decision on the basis that the Veteran’s rheumatoid arthritis was not related to his active service. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). Service connection for rheumatoid arthritis was most recently denied in a January 2005 rating decision on the basis that new and material evidence had not been received to reopen the claim. While the Veteran appealed this decision by filing a timely notice of disagreement in March 2005, he did not perfect an appeal of this claim following the issuance of the January 2006 statement of the case, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). The evidence received since the January 2005 rating decision includes evidence that is both new and material to the claim. For example, at his July 2018 hearing the Veteran provided additional details regarding the onset of his rheumatoid arthritis and information as to how his reserve duties aggravated his rheumatoid arthritis. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder Service connection for an acquired psychiatric disorder was initially denied in a March 2002 rating decision on the basis that the Veteran’s various psychiatric disorders were not related to any period of active service, inactive duty training (INACDUTRA), or active duty for training (ACDUTRA). The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). Service connection for an acquired psychiatric disorder was most recently denied in a July 2008 rating decision on the basis that new and material evidence had not been received to reopen the claim. While the Veteran appealed this decision by filing a timely notice of disagreement in October 2008, he did not perfect an appeal of this claim following the issuance of the July 2009 statement of the case, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). The evidence received since the July 2008 rating decision includes evidence that is both new and material to the claim. For example, an August 2018 opinion from Dr. Feinstein indicates that the Veteran’s progressive depression and anxiety are more likely than not a result of his TBI and lumbar spine disability. This new evidence addresses the reason for the previous denial; that is, a nexus to a service-connected disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for rheumatoid arthritis is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. 3. Entitlement to a rating in excess of 40 percent for a lumbar spine disability is remanded. 4. Entitlement to an increased rating for a TBI, currently rated as 40 percent disabling prior to January 9, 2015, and 70 percent thereafter is remanded. 5. Entitlement to SMC based on aid and attendance / housebound is remanded. 6. Entitlement to a TDIU is remanded. The evidence indicates there may be outstanding relevant VA treatment records. An April 18, 2018 VA treatment record indicates that the Veteran was to return for follow up appointment in May 2018. VA treatment records subsequent to April 25, 2018 have not been associated with the claims file. Additionally, a March 22, 2016 VA treatment record notes that an unidentified non-VA care record had been scanned into VistA Imaging. It does not appear that the referenced record has been associated with the claims file. A remand to obtain the records is required. The record also contains a February 4, 2016 VCIP Unscannable Document Placeholder indicating that a compact disc (CD), which was received on January 29, 2016, could not be opened to extract images. It is unclear what documents were contained on the CD and whether the CD was submitted by the Veteran or a third party. Accordingly, the Agency of Original Jurisdiction (AOJ) should contact the Veteran to determine whether the CD was submitted by him and if so, request he resubmit the evidence. If the Veteran indicates the CD was not submitted by him, to the extent possible, the AOJ should determine who submitted the CD and request the resubmission of the documents contained on the unscannable CD. The Veteran asserts that his rheumatoid arthritis and acquired psychiatric disorders may have been aggravated by his service in the Air Force Reserves. It does not appear that complete personnel records for the Veteran’s reserve service have been obtained. Accordingly, on remand, the AOJ should attempt to verify the Veteran’s period of active duty for training or inactive duty for training and obtain all outstanding service personnel records. Regarding the Veteran’s claims for rheumatoid arthritis, he has asserted that his various acquired psychiatric disorders are related to his active service, his reserve service, and / or his service-connected disabilities. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the conditions are related to the Veteran’s active service, any period of the inactive duty training (INACDUTRA), any period of active duty for training (ACDUTRA), and /or the Veteran’s service-connected disabilities. The Board has not overlooked the October 2003 opinion from Dr. Pan. Nevertheless, as that opinion is speculative and lacks adequate rationale. Accordingly, a remand for a VA opinion is warranted. Concerning the Veteran’s claim for an acquired psychiatric disorder, the record contains various diagnoses including anxiety disorder, PTSD, schizophrenia, depressive disorder, schizoaffective disorder, dysthymia, and adjustment disorder. Regarding his PTSD, the Veteran asserts that it is related to witnessing a fatal motor vehicle accident involving other soldiers while performing night training maneuvers in 1977 at Ft. Carson. To date, that stressor has not been verified. Accordingly, on remand VA should attempt to corroborate the Veteran’s reported stressor. Additionally, as the Veteran is diagnosed with various acquired psychiatric conditions other than PTSD, a VA examination is warranted to reconcile the conflicting diagnoses and to determine whether any diagnosed psychiatric disorder is related to a period of active service, ACDUTRA, INACDUTRA, or a service-connected disability. The Board has not overlooked the August 2018 opinion from Dr. Feinstein. Nevertheless, as that opinion is conclusory, it is insufficient for adjudicating the claim. Accordingly, a remand for a VA examination and opinion is warranted. At his July 2018 hearing, the Veteran testified that his lumbar spine disability and TBI had worsened since his last VA examinations. Accordingly, the Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of his lumbar spine disability and TBI. Finally, because decisions on the remanded service connection and increased rating claims could significantly impact a decision on the issues of entitlement to a TDIU and entitlement to SMC, the issues are inextricably intertwined. Accordingly, these issues must also be remanded. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records and the VistA Imaging record referenced in to the March 22, 2016 VA treatment record. If any requested records are unavailable, the Veteran should be notified of such. 2. Determine what documents are contained on the unscannable CD, which was received on January 29, 2016, and described in the VCIP Unscannable Document Placeholder. To the extent possible, obtain a readable or scannable CD or copies of the documents that are the subject of the VCIP Unscannable Document Placeholder. To the extent that readable copies are not made a part of the record, the Veteran must be notified of the unavailability of any missing documents and be afforded an opportunity to provide any copies of such records that he may have in his possession. 3. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in the Air Force Reserve. Verify all active duty for training and inactive duty training dates for alleged service in the Air Force Reserves from 1991 through 2000. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 4. Attempt to corroborate the Veteran’s reported in-service stressor, including his January 2, 2008 report of witnessing a fatal motor vehicle accident involving soldiers while performing night training maneuvers in 1977 at Ft. Carson. If more details are needed, contact the Veteran to request the information. 5. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's rheumatoid arthritis. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s rheumatoid arthritis had its onset during active service or is otherwise related to his active service, to include his in-service treatment for joint pain. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s rheumatoid arthritis is related to a disease or injury incurred or permanently aggravated during ACDUTRA or an injury incurred or aggravated during INACDUTRA. In so opining, the clinician should address the October 2003 opinion from Dr. Pan indicating that the Veteran’s rheumatoid arthritis could have been worsened by the Veteran’s duties as an aircraft mechanic and the January 22, 2000 service treatment record noting that the Veteran had ongoing hand, knee, and shoulder pain that worsen with the Veteran’s reserve duties as an aircraft mechanic. (c.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s rheumatoid arthritis was caused by his service-connected disabilities? (d.) If not caused by the Veteran’s service-connected disabilities, is it at least as likely as not that the Veteran's rheumatoid arthritis is worsened beyond natural progression (aggravated) by his service-connected disabilities? If the clinician finds that the Veteran's rheumatoid arthritis was aggravated by the Veteran’s service-connected disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the rheumatoid arthritis. A complete rationale should be provided for all opinions and conclusions expressed. 6. Schedule the Veteran for a VA PTSD examination. The claims file should be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders present and then respond to the questions presented: (a.) If the Veteran is diagnosed with PTSD, the examiner should indicate the stressor(s) upon which the diagnosis is based. (b.) For each diagnosed psychiatric condition other than PTSD and personality disorders, to include anxiety disorder, depressive disorder, schizophrenia, schizoaffective disorder, dysthymia, and adjustment disorder noted in treatment records, state whether it is at least as likely as not that the conditions arose during active service or are otherwise related to the Veteran’s active service. (c.) Whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder is related to a disease or injury incurred or permanently aggravated during ACDUTRA or an injury incurred or aggravated during INACDUTRA (d.) Whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder was caused by his service-connected disabilities? (e.) If not caused by the Veteran’s service-connected disabilities, is it at least as likely as not that the Veteran’s any acquired psychiatric disorder is worsened beyond natural progression (aggravated) by his service-connected disabilities? If the clinician finds that any acquired psychiatric disorder was aggravated by the Veteran’s service-connected disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the any acquired psychiatric disorder. In so opining, the examiner should address the August 2018 opinion from Dr. Feinstein indicating that the Veteran’s progressive depression and anxiety are more likely than not a result of his TBI and lumbar spine disability. A rationale for all opinions expressed should be provided. 7. Schedule the Veteran for a VA thoracolumbar spine examination to determine the current severity of the Veteran’s lumbar spine disability. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the lumbar spine disability should be reported. The examiner should also detail the extent to which the Veteran's lumbar spine disability impacts his ability to perform tasks of sedentary and non-sedentary employment, activities of daily life, and his need for aid and attendance of another person. A rationale for all opinions expressed should be provided. 8. Schedule the Veteran for a VA TBI examination to determine the current severity of the Veteran’s TBI. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the TBI should be reported. The examiner should also detail the extent to which the Veteran’s TBI impacts his ability to perform tasks of sedentary and non-sedentary employment, activities of daily life, and his need for aid and attendance of another person. A rationale for all opinions expressed should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson