Citation Nr: 18148845 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-26 632 DATE: November 8, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED The claim to reopen a previously disallowed claim for service connection for hepatitis C is remanded. The claim for service connection for PTSD, to include as due to alleged herbicide (Agent Orange) exposure and as due to alleged mustard gas and Lewisite exposure, is remanded. The claim for service connection for an acquired psychiatric disorder (other than PTSD), is remanded. The claim for service connection for a low back disorder is remanded. The claim for service connection for a left knee disorder is remanded. The claim for service connection for bilateral hearing loss disability, to include as due to alleged mustard gas and Lewisite exposure, is remanded. The claim for service connection for a respiratory disorder, to include as due to alleged mustard gas and Lewisite exposure and as due to alleged asbestos exposure, is remanded. The claim for service connection for cirrhosis of the liver is remanded. FINDINGS OF FACT 1. In August 2005 and October 2005 rating decisions, the RO previously considered and denied a claim for service connection for PTSD. The RO did not consider service connection for any other psychiatric disorder in these rating decisions. 2. The Veteran was notified of the August 2005 and October 2005 rating decisions and of his appellate rights, but he did not appeal. There was also no evidence received within one year of the issuance of either rating decision. 3. Evidence received after the August 2005 and October 2005 rating decisions, by itself or in conjunction with the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD. CONCLUSION OF LAW New and material evidence has been received after the final August 2005 and October 2005 rating decisions, to reopen a claim for service connection for PTSD. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the U.S. Marine Corps from January 1980 to January 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from March 2011 and September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was notified of the date and time of two separately scheduled hearings. Regardless, the Veteran failed to report for the DRO hearing scheduled in January 2014 and for the Board videoconference hearing scheduled in July 2017. He has not explained his absence or requested to reschedule the hearings. Therefore, the DRO and Board hearing requests are considered withdrawn. See 38 C.F.R. § 20.704(d) (2017). VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The RO sent the Veteran compliant VCAA notice letters for the PTSD / new and material evidence issues dated in August 2010, October 2010, December 2010, and January 2018. Several of these VCAA letters explained and defined the term ‘new and material evidence’. Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). See also VAOPGCPREC 6-2014 (November 21, 2014). In any event, in the decision below, the Board has reopened the new and material evidence issue for PTSD. Therefore, the benefits sought on appeal have been granted in full for this particular issue. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to this issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. With regard to the remaining new and material evidence and service connection issues on appeal being remanded, the Board finds that further evidentiary development is needed and will be discussed in the remand below. Therefore, an analysis regarding compliance with the VCAA for these particular issues is not required at this time. New and Material Evidence - PTSD In earlier August 2005 and October 2005 rating decisions, the RO denied service connection for PTSD. The Veteran was notified of the August 2005 and October 2005 rating decisions and of his appellate rights, but he did not submit a notice of disagreement (NOD), or new and material evidence, within one year of the notice of either decision. Therefore, the August 2005 and October 2005 rating decisions became final for the PTSD issue. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2005). The establishment of service connection for PTSD at the time of the August 2005 and October 2005 rating decisions required: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor. 38 C.F.R. § 3.304(f) (2008). See also Cohen v. Brown, 10 Vet. App. 128 (1997). In the final August 2005 and October 2005 rating decisions, the RO denied service connection for PTSD because the Veteran did not have a confirmed, valid diagnosis of PTSD. There was also no conclusive verification of his alleged in-service stressor. His service personnel records (SPRs) showed that his alleged traumatic stressor (the bombing of the Marine Barracks in Beirut, Lebanon) occurred on October 23, 1983, 13 days after the Veteran had already departed Lebanon and returned to Hawaii. So despite his allegation, he was not present for the Marine Corps bombing. The Board acknowledges that the Veteran has also claimed entitlement to service connection for an acquired psychiatric disorder (other than PTSD). But in the previous, final August 2005 and October 2005 rating decisions, the RO only adjudicated the issue of service connection for PTSD. Thus, the other acquired psychiatric disorders listed in the record (e.g., depression, polysubstance abuse disorder, alcohol dependence, substance induced mood disorder, bipolar disorder, etc.,) were never previously adjudicated by the RO or Board. As such, the Veteran’s new claim in July 2010 for service connection for other acquired psychiatric disorders constitutes a new and distinct claim and is not a new and material evidence issue. In this regard, the Federal Circuit Court has held that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). See also Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) ((a newly diagnosed psychiatric disorder (e.g., PTSD), even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). In reviewing the earlier August 2005 and October 2005 rating decisions, the Board has determined that a new and material evidence analysis is proper for the PTSD issue on appeal, as it was clearly adjudicated by the RO in these earlier rating decisions. However, in contrast, a de novo service connection analysis is proper for the acquired psychiatric disorder (other than PTSD) issue on appeal. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter). As discussed further below, the separate issue of service connection for an acquired psychiatric disorder (other than PTSD) is being remanded for further development. After the Veteran filed his claim to reopen service connection for PTSD in July 2010, the RO issued the March 2011 rating decision on appeal, June 2014 Statement of the Case (SOC), and January 2017 SSOC. The RO determined it was not reopening the new and material evidence claim for the PTSD disorder. In any event, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the PTSD claim, before proceeding to readjudicate the underlying merits of the PTSD claim. If the Board finds that no new and material evidence to reopen the service connection for PTSD issue has been offered, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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) (2017). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence has been received to reopen the PTSD issue, subsequent to the final August 2005 and October 2005 rating decisions. See 38 C.F.R. § 3.156(a). Specifically, VA psychologists and psychiatrists in VA mental health treatment records from dated from 2010 to 2018 diagnosed the Veteran with PTSD linked to an alleged traumatic in-service stressor. Such a diagnosis was previously not of record. Assuming their credibility, the Board finds that these VA mental health records dated from 2010 to 2018 relate to a previously unestablished fact and raise a reasonable possibility of substantiating PTSD claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. These VA treatment records are therefore new and material. The claim for service connection for PTSD is reopened. REASONS FOR REMAND 1. New and material evidence (NME) to reopen the issue of service connection for hepatitis C is remanded. 2. Service connection for PTSD, to include as due to alleged herbicide (Agent Orange) exposure and as due to alleged mustard gas and Lewisite exposure, is remanded. 3. Service connection for an acquired psychiatric disorder (other than PTSD), is remanded. 4. Service connection for a low back disorder is remanded. 5. Service connection for a left knee disorder is remanded. 6. Service connection for bilateral hearing loss disability, to include as due to alleged mustard gas and Lewisite exposure, is remanded. 7. Service connection for a respiratory disorder, to include as due to alleged mustard gas and Lewisite exposure and as due to alleged asbestos exposure, is remanded. 8. Service connection for cirrhosis of the liver is remanded. First, in a November 2017 VA consult and an April 2018 VA mental health note, the Veteran reported the award monthly of Social Security Disability Income (SSDI). He has not reported any retirement income from the Social Security Administration (SSA). It is clear from the record that he was awarded SSDI benefits due to functional impairments from several of the disabilities on appeal. Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). VA must make as many requests as necessary to obtain “relevant” SSA records to include the complete SSA decision and accompanying medical records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Thus, a remand is warranted to obtain complete SSA disability records based on the Veteran’s confirmed receipt of SSDI income, as these SSA disability records may be pertinent to the service connection issues on appeal. Second, with regard to the issue of service connection for an acquired psychiatric disorder (other than PTSD), the Board finds that additional development of the evidence is required. Specifically, the AOJ must obtain a VA addendum opinion from the same VA examiner who performed the July 2018 VA DBQ psychological examination. On this point, previously, the July 2018 VA psychological examiner only addressed the etiology of the Veteran’s alleged PTSD disorder. Although the July 2018 VA examiner diagnosed the Veteran with unspecified schizophrenia spectrum and other psychotic disorder, he did not address the etiology of these other mental health conditions. Furthermore, in VA treatment records dated from 1995 to 2018, the Veteran has also been diagnosed with bipolar disorder, dysthymia, cluster C, alcohol induced mood disorder with depression, major depressive disorder, depression NOS with psychosis, alcohol dependence, cocaine dependence, marijuana abuse, and polysubstance abuse. When a claimant identifies a particular mental health diagnosis in a claim, the scope of the claim should not be limited to that diagnosis; rather, it must be considered a claim for any mental disability that is reasonably encompassed by the pleadings and evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Also, the VA psychological examiner must address whether the change in psychological diagnoses throughout the appeal period represents a progression of the prior diagnoses, correction of an error in the prior diagnoses, or development of a new and separate condition. See 38 C.F.R. § 4.125(b). As such, the AOJ must obtain a VA addendum opinion from the same VA examiner who performed the July 2018 VA DBQ psychological examination. If the same July 2018 VA psychological examiner is not available, another qualified VA clinician will provide the addendum opinion. Another VA psychological examination is not necessary unless the VA examiner specifically requests one. Third, for all the issues on appeal, after the appeal was certified and transferred to the Board in February 2017, a review of the claims file reveals additional, relevant VA treatment records dated in 2017 and 2018. This evidence was not submitted by the Veteran; rather, it was secured by the AOJ. Some of this evidence is clearly pertinent to the remaining new and material evidence and service connection issues on appeal. Yet no waiver for this additional evidence is present in the claims file. See 38 C.F.R. § 20.1304(c) (2017). In this regard, the Board in a July 2018 waiver solicitation letter advised the Veteran and his representative (the Alabama Department of Veterans Affairs) to respond to this letter in 45 days, or else the case will be remanded to the AOJ for review. No response was forthcoming from either the Veteran or his representative. If the Board was to consider this medical evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would “lose one bite of the apple,” meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the AOJ must have the opportunity to review the additional VA treatment records dated in 2017 and 2018, prior to readjudicating the new and material evidence and service connection issues on appeal. See 38 C.F.R. §§ 19.31, 19.37 (2017). The matter is REMANDED for the following action: 1. The AOJ should request from the Social Security Administration (SSA) all records associated with the Veteran’s receipt of $735 per month of Social Security Disability Income (SSDI). See November 2017 VA consult and an April 2018 VA mental health note. In particular, request copies of any SSA disability determination and all medical records considered. (These SSA records may be relevant to the new and material evidence and service connection issues on appeal). If no SSA records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 2. After completion of step 1, the AOJ should secure a VA addendum opinion from the July 2018 VA DBQ psychological examiner. If this VA psychological examiner is no longer available, another qualified VA clinician must provide the addendum opinion. Only if deemed necessary by the VA examiner is another mental health examination necessary. The entire claims file should be made available to and be reviewed by the VA examiner. An explanation for all opinions expressed must be provided. The VA examiner must directly answer the following questions: (a.) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s current unspecified schizophrenia spectrum or other current psychotic disorder is related to his service in the Marine Corps from 1980 to 1984? (b.) Please also address whether the change in psychological diagnoses throughout the appeal period represents a progression of the prior diagnoses, correction of an error in the prior diagnoses, or development of a new and separate condition. Concerning this, during the course of the appeal, the Veteran has been diagnosed with unspecified schizophrenia spectrum, bipolar disorder, dysthymia, cluster C, alcohol induced mood disorder with depression, major depressive disorder, depression NOS with psychosis, alcohol dependence, cocaine dependence, marijuana abuse, and polysubstance abuse. See VA treatment records dated from 1995 to 2018. 3. After completion of steps 1-2, the AOJ should consider all of the evidence of record and readjudicate the new and material evidence and service connection issues on appeal. If the benefit sought is not granted, the AOJ should issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel