Citation Nr: 18150768 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 15-00 743 DATE: November 16, 2018 ORDER The request to reopen entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) and anxiety with panic attacks is granted. Entitlement to service connection for generalized anxiety disorder and panic disorder is granted. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to service connection for a respiratory disorder to include asthma is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflex disease (GERD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Evidence received since the final March 2009 rating decision that denied service connection for a psychiatric disorder to include PTSD and anxiety with panic attacks is new and material. 2. The evidence is at least evenly balanced as to whether the Veteran’s current diagnoses of generalized anxiety disorder and panic disorder without agoraphobia is related to active military service. CONCLUSIONS OF LAW 1. The request to reopen entitlement to service connection for a psychiatric disorder to include PTSD and anxiety with panic attacks are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a), (c). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for generalized anxiety disorder and panic disorder without agoraphobia are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to December 1994. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated in November 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, Veteran testified during a hearing before the undersigned Veterans Law Judge and a transcript of the hearing is of record. Service Connection Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A finally adjudicated claim shall be reopened and reviewed if new and material evidence is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Id. at 118, 124 (Lance, J. concurring). 1. The request to reopen entitlement to service connection for PTSD and anxiety with panic attacks. The Veteran asserts that his PTSD is caused by or related to the claimed in-service stressor of fear of hostile military activity and an incident on board a ship where the blasting tank and fuel tank had a hole in it. The Veteran further asserts that he has a psychiatric disorder that began during active military service with continuous or recurrent symptoms since discharge from service. The Board concludes new evidence was associated with the claims file since the final August 2006 rating decision denying service connection for PTSD and anxiety with panic attacks that is related to an unestablished fact necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5108; 38 C.F.R. § 3.303(a). The Veteran originally filed a service connection claim for PTSD in March 2006. In an August 2006 rating decision, the RO denied the Veteran’s service connection claim for PTSD and anxiety with panic attacks on the basis that there was no current diagnosis of PTSD and there was no evidence of treatment or a diagnosis of anxiety with panic attacks during service. The evidence of record at the time of the March 2006 denial consisted of service treatment records, service personnel records, VA treatment records from March 2005 to August 2006, a June 2006 VA examination, and lay statements. Although notified of the denial in September 2006, the Veteran did not initiate an appeal with this decision. Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. §§ 3.156(b), (c). Thus, the denial of service connection for a psychiatric disorder in the August 2006 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The RO received the Veteran’s service connection claim for a psychiatric disorder to include PTSD, anxiety, and panic attacks in July 2011. The relevant evidence of record received since the prior final rating decision includes VA treatment records dated from March 2003 to October 2012, a VA examination report dated in August 2012, SSA disability records, and lay statements from the Veteran. The VA treatment records and August 2012 VA examination are new in that they were not of record at the time of the August 2008 rating decision. Furthermore, the August 2012 VA examination is material. In this regard, the VA examiner determined that the Veteran’s anxiety disorder and panic disorder are at least as likely as not related to the Veteran’s military service. Accordingly, the additional evidence received addresses a missing element of the claim (ie., a link between the current diagnosed disability and active military service), and, thus, raises a reasonable possibility of substantiating the claim. Therefore, the requirements for reopening the previously denied service connection claim for a psychiatric disorder to include PTSD and anxiety disorder with panic attacks are met. See 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for an anxiety disorder and panic disorder. The Board concludes that the Veteran has a current diagnosis of anxiety disorder and panic disorder that is related to active military service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An August 2012 VA examiner diagnosed the Veteran with generalized anxiety disorder and panic disorder without agoraphobia. Thus, the Veteran has a current diagnosis of the claimed disability. The Veteran’s service treatment records do not show that the Veteran was diagnosed with or treated for an anxiety disorder or panic disorder during active military service. However, the Veteran reported experiencing depression or excessive worry in a November 1994 Report of Medical History Form. The clinician noted that with respect to depression, the Veteran did not have it at that time and there were no major problems. The November 1994 separation examination reveals that the Veteran had a normal psychiatric evaluation. Thus, there is contemporary evidence that the Veteran experienced symptoms of depression or excessive worry during service. With respect to whether there is a nexus between the current disabilities and active military service, the August 2012 VA examiner provided the medical opinion that the Veteran’s generalized anxiety disorder and panic disorder without agoraphobia are at least as likely as not related to the Veteran’s military service. Although the examiner did not provide an explanation in support of her opinion, she documented in the examination report that the service treatment records indicate that the Veteran endorsed symptoms of depression in November 1994. The examiner also noted that the Veteran reported experiencing significant symptoms of anxiety that began during military service and increased in severity since discharge. Furthermore, the Board finds it persuasive that there is no other medical opinion in the claims file that contradicts this medical opinion. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. With respect to the Veteran service connection claim for PTSD, a VA examiner in August 2012 determined that the Veteran did not meet the criteria for PTSD. The Veteran’s VA treatment records document that the Veteran has a current diagnosis of PTSD. VA treatment records reflect that the Veteran was diagnosed with PTSD as early as 2009; however, the August 2012 VA examiner did not note or discuss this diagnosis. The Veteran indicates that one of his in-service stressors is related to fear of hostile military activity while stationed on the USS Nassau in the Gulf of Oman and the Persian Gulf during Operation Desert Storm. Thus, the Board finds that the Veteran should be provided with another VA examination and medical opinion with respect to whether his PTSD is caused by the claimed in-service stressor of fear of hostile military activity. 2. Entitlement to service connection for a respiratory disorder to include asthma is remanded. Regarding, the Veteran’s service connection claim for a respiratory disorder to include asthma, the Veteran underwent a VA examination in September 2012. The examiner diagnosed the Veteran with asthma. However, the examiner did not provide a medical opinion with respect to whether the Veteran’s asthma had its onset in or is otherwise related to active military service. Thus, the Veteran should be provided with a VA medical opinion. 3. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflex disease (GERD) is remanded. The most recent VA examination that evaluated the severity of the Veteran’s service-connected GERD was in February 2014. During the June 2018 Board hearing, the Veteran testified that his GERD has increased in severity since the February 2014 VA examination. Accordingly, the Veteran should be provided with a new VA examination to evaluate the current severity of his GERD. 4. Entitlement to a total disability rating based on individual unemployability is remanded. With respect to the Veteran’s claim of entitlement to a TDIU, the claim is inextricable intertwined with the grant of service connection for an anxiety disorder and panic disorder, because the TDIU issue may be affected by the assignment of the disability rating and effective date for the grant of service connection. Furthermore, the TDIU claim is intertwined the Veteran’s initial rating claim for GERD that is being remanded. New information obtained from the VA examination for GERD could produce further evidence regarding the Veteran’s claim for TDIU, thereby affecting the adjudication of such claim. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Thus, adjudication of the TDIU claim will be held in abeyance pending the assignment of the disability rating and effective date for service-connected anxiety disorder and panic disorder and readjudication of the increased rating claim for GERD. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination by a psychologist or psychiatrist to evaluate the Veteran’s service connection claim for PTSD. The electronic claims file, including a copy of this REMAND, must be made available to the examiner, and the opinion should reflect that the claims file was reviewed in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and documented in the claims file. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether the Veteran’s PTSD found on examination or documented in the claims file is at least as likely as not (i.e., a 50 percent or greater probability) related at least in part to fear of hostile military activity. If the examiner determines that the Veteran has never met the criteria for a diagnosis of PTSD during the appeal period, the examiner must explain why the diagnosis of PTSD reflected in the Veteran’s treatment records is not a valid diagnosis of PTSD. If PTSD is diagnosed, the examiner must identify the stressor or stressors upon which the diagnosis is based. The examiner should provide an explanation for all conclusions reached. 2. Obtain a VA medical opinion regarding the Veteran’s service connection claim for a respiratory/lung disorder to include asthma by an appropriate medical specialist. Only arrange for the Veteran to undergo an examination if one is deemed necessary in the judgment of the medical specialist designated to provide the medical opinion. The examiner is requested to review all pertinent records associated with the electronic claims file and offer an opinion as to whether the Veteran’s asthma or any other respiratory/lung disorder found in the medical record is at least as likely as not (i.e., a fifty percent or greater probability) related to the Veteran’s active military service to include any symptoms shown in service and/or exposure to oil and fumes as an aviation fuels afloat refueling crew leader while stationed on the USS Nassau. The medical specialist should provide an explanation for all conclusions reached. As part of his or her rationale, the medical specialist is asked to address the lay statements from the Veteran that his symptoms of difficulty breathing coughing phlegm began during active military service with continuous or recurrent symptoms since discharge from service and whether such symptoms are at least as likely as not at least in part related to his current diagnosis of asthma and/or any other lung or respiratory disorder documented in the claims file. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his GERD. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should also fully describe any functional effects of the Veteran’s GERD on his activities of daily living, to include employment. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel