Citation Nr: 18149571 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-38 230 DATE: November 9, 2018 ORDER 1. New and material evidence having been received, the claim for service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD), is reopened. The appeal is granted to this extent only. 2. Entitlement to service connection for diabetes type 2 is denied. REMANDED 1. Entitlement to service connection for a psychiatric disorder, to include PTSD is remanded. 2. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in November 2013, the Veteran was denied service connection for PTSD. 2. The evidence associated with the claims file subsequent to the November 2013 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder, to include PTSD, is not cumulative or redundant of evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The Veteran does not have a current diagnosis of diabetes mellitus type II or recurring or persistent symptoms thereof. CONCLUSIONS OF LAW 1. The November 2013 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, to include PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for diabetes type 2 have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303 (a), 3.304, 3.307(b), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1967 to June 1970. On appeal before the Board are two rating decisions, a November 2013 rating decision denying service connection for PTSD and a December 2015 rating decision denying service connection for diabetes type 2 and hypertension. The Veteran filed an untimely notice of disagreement in December 2014 rendering the November 2013 rating decision final. In December 2015, the RO reopened the claim for service connection for PTSD and continued their denial. 1. New and material evidence to reopen a claim for service connection for a psychiatric disorder, to include PTSD Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). There are particular requirements for establishing service connection for PTSD. 38 C.F.R. § 3.304 (f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence of an in-service stressor; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). The Veteran was denied service connection for PTSD in a November 2013 rating decision because his record did not show a confirmed diagnosis of PTSD and his claimed in-service stressors were unverified. The Veteran did not timely appeal the November 2013 rating decision, and no new evidence was received within one year. Therefore, that decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.156 (b). Service connection for PTSD may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In the instant case, the record does not reflect a diagnosis for PTSD. The Board acknowledges that the Court of Appeals for Veterans Claims has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Board has considered whether the record suggests psychiatric conditions other than PTSD. The Board notes that the Court has held that a misdiagnosis cannot be the basis for a new claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). However, if the records supporting the new diagnosis constitute new and material evidence, then VA must reopen the claim under section 5108. Id. Thus, if there is new and material evidence to support the claim for service connection for a psychiatric disorder, to include PTSD, then the claim may be reopened. Entitlement to service connection for psychiatric disorders other than PTSD requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In November 2015, after the prior final decision, the Veteran secured a VA exam in which Dr. K diagnosed the Veteran with major depressive disorder with anxious distress based on additional symptomology. Moreover, in December 2015, the Veteran’s claimed in-service stressors were verified by the Joint Services Records Research Center Coordinator (JSRCC). This evidence is new as it was not of record at the time of the prior final decision, nor was it previously submitted to a VA decision maker. Nor is the evidence cumulative or redundant of any evidence already of record. Additionally, as the Veteran’s in-service stressors have now been verified, this new evidence raises a reasonable possibility of linking the Veteran’s condition to his service and thereby substantiating the Veteran’s claim. Hence, the low threshold for meeting the criteria for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for a psychiatric disorder, to include PTSD is reopened. 38 C.F.R. § 3.156 (a). 2. Service connection for diabetes type 2 Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, supra. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). The requirements to secure a VA examination are a low bar. The Veteran contends that his diabetes type 2 is associated with his active service. However, the record is devoid of any diagnosis of diabetes. The Veteran provides no evidence, lay or otherwise, of symptoms of diabetes or treatment for diabetes. The Veteran has been provided an opportunity to submit records documenting both. The Board determines that this claim fails for lack of evidence of a current disability. The Board acknowledges that the Veteran has not undergone a VA examination for this condition and a VA opinion has not been sought. However, the Board determines that a VA examination is not necessary. Although McClendon sets a low bar, that bar has not been met. The Veteran and his representative acknowledges that he has no diagnosis of diabetes. As noted, the record lacks any evidence of persistent recurrent symptoms of diabetes. As the evidence does not establish a current disability, service connection for diabetes type 2 is denied. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder, to include PTSD is remanded. The Veteran contends that he has PTSD as a result of his active service. In July 2013, the Veteran was diagnosed with an adjustment disorder with anxiety. The Veteran reported efforts to avoid thoughts, feelings and conversations associated with a 1968 attack on his base in Cu Chi Vietnam. In November 2015, VA examiner, Dr. K, diagnosed the Veteran with Major Depressive Disorder with anxious distress. In December 2015, the Veteran’s claimed stressors were verified by JSRRC. The record indicates that the Veteran’s current disabilities may be associated with the in-service stressors. See McClendon v. Nicholson, supra. A VA examiner reviewed the claims file in December 2015. The examiner was unable to provide a nexus between the Veteran’s verified in-service stressors and his diagnosed psychiatric disorders. The examiner required an in-person examination of the Veteran to determine the etiological relationship. In the alternative, the examiner suggested an opinion statement from Dr. K, who examined the Veteran, would be sufficient. However, there is no follow up opinion from Dr. K in the record and no additional VA exam was ever scheduled. Hence, on remand, an examiner must comment on any etiological relationship between the Veteran’s in-service stressors and his psychiatric symptoms. The Veteran should also be given the opportunity to submit additional evidence from private medical providers. 2. Entitlement to service connection for hypertension is remanded. The Veteran has submitted literature suggesting that his hypertension could be associated with or aggravated by his psychiatric disorder. See July 2016 Notice of Disagreement. As the Veteran contends that his hypertension is secondary to his PTSD, the Board finds that this claim is inextricably intertwined with the service connection claim for a psychiatric disorder, to include PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran’s service connection claim for his psychiatric disorder is completed and the matter is either resolved or prepared for appellate review. Therefore, if there is a positive nexus opinion for the Veteran’s psychiatric disorders an opinion as to the etiology of the veteran’s hypertension is also required. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to identify any VA and private medical treatment records for his PTSD, any other current diagnosed psychiatric conditions, and hypertension. Obtain any outstanding VA treatment records. For any private records, the RO should provide the Veteran with the appropriate authorizations so that these records can be obtained. 2. After obtaining outstanding records, schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of any currently diagnosed psychiatric conditions. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. The examiner is asked to provide an opinion as to whether the Veteran currently has a clinical diagnosis for PTSD. i) If the examiner determines that the Veteran currently has a diagnosis for PTSD, please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD is due to his verified stressor(s) per the December 2015 report from the JSRRC, and the Veteran’s statements. ii) If the examiner determines that the Veteran does not currently have a diagnosis for PTSD, please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any other diagnosed psychiatric condition, to include the major depressive disorder diagnosed by the November 2015 VA examiner, is related to the Veteran’s active service, to include his verified stressor(s) per the December 2015 report of the JSRRC and the Veteran’s statements. iii) If, and only if, the examiner determines that the Veteran’s psychiatric condition is etiologically linked to a verified in-service stressor, schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology his hypertension. In determining the etiology of the Veteran’s hypertension, the examiner must address the research submitted by the Veteran which purports to show a link between PTSD and cardiovascular disease. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Sherman Associate Counsel