Citation Nr: 18151431 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 14-40 947A DATE: November 20, 2018 ORDER New and material evidence has been received, and the Veteran’s claim of service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. Entitlement to service connection for neuropathy, to include as due to herbicide exposure, is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder, is remanded. Entitlement to an evaluation in excess of 40 percent for a low back disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for PTSD was denied in a November 2004 rating decision that was not appealed and became final. 2. Evidence added to the record since the November 2004 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for PTSD, and raises the possibility of substantiating the claim. CONCLUSION OF LAW Evidence added to the record since the November 2004 rating decision, denying service connection for PTSD, is new and material, and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1968 to October 1972. New and material evidence to reopen the previously denied claim of service connection for PTSD A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decisionmakers. 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. See Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). With respect to the second element, if the evidence shows that the veteran did not serve in combat with enemy forces during service, if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, or if a stressor claimed by a veteran is not related to the veteran’s fear of hostile military or terrorist activity, there must be independent evidence to corroborate the veteran’s statement as to the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). In addition, 38 C.F.R. 3.304(f)(3) states: If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military; or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or an attack upon friendly military aircraft, and the veteran’s and the veteran’s response to the event or circumstance involved a psychological or a physiological state of fear, helplessness, or horror. In a September 2012 rating decision, the VA regional office found that new and material evidence had not been received to reopen the previously denied claim of service connection for PTSD. Service connection for PTSD was previously denied in a September 2010 rating decision. In June 2011, VA psychiatric treatment records relating to PTSD from May 2011 were associated with the claims file. Therefore, the September 2010 rating decision did not become final because relevant evidence was received within a year, and it is still on appeal. See 38 C.F.R. §§ 3.156(b). Service connection for PTSD had previously been denied in a November 2004 rating decision. The Veteran did not appeal the November 2004 rating decision and new and material evidence was not received during the appeals period. Therefore, the November 2004 rating decision became final. See 38 C.F.R. § 3.156(b). At the time of the November 2004 rating decision, the evidence of record included the service treatment records (STRs), which do not show any complaints, treatment, or diagnoses related to PTSD. At April 2001 to August 2003 VA treatment, the Veteran was diagnosed with mood disorder (major depression) secondary to chronic pain. The Veteran’s wife wrote in November 2003 that they had been married for 30 years and she had observed him having sleepless nights. He wrote in November 2003 that during service he was in an air evacuation ground crew. He had nightmares and flashbacks about seeing troops with arms, legs, and other missing body parts, and being around body bags containing those who were killed in Vietnam. In addition, loud noises and people “coming up” behind him startled him. In December 2003 the Veteran wrote that he had nightmares and flashbacks. The Veteran was diagnosed with probable PTSD at December 2003 VA treatment. He reported nightmares of dismembered soldiers for the past five or six years and flashbacks and intense physical reactions to stimuli such as roadkill. The Veteran’s treating psychiatrist felt that the symptoms likely met the criteria for delayed PTSD. The Veteran was diagnosed with PTSD at July 2004 VA treatment, and at September 2004 VA treatment the Veteran said that he also had nightmares related to bombing runs he helped plan. He wrote in October 2004 that while on active service in Japan he saw patients missing limbs or who were badly burned being taken off of aircraft, and that he smelled the odor of dead flesh from body bags. The additional evidence added to the record since the November 2004 rating decision includes May 2006 VA psychiatry treatment records, in which it is noted in the context of a relative’s funeral that seeing a dead body evoked traumatic memories of the Vietnam war. A May 2009 VA treatment records states that the Veteran continued to have symptoms related to PTSD. In a January 2010 letter the chairman of the 610 Military Airlift Support Squadron Alumni Association, an organization of military personnel stationed at Yokota Air Base, Japan from 1966 to 1978, wrote that their primary mission was to support air evacuations and movement of troops and cargo throughout the Far East, including Vietnam. It was routine for them to manage aircraft with wounded and deceased personnel on board. Service personnel records show that the Veteran’s military occupational specialty was that of aircraft mechanic and that he served at Yokota Air Base in Japan. His responsibilities included performing pre- and post-flight inspections on C-141A aircraft. August 2015 VA treatment records state that a diagnosis of PTSD was suggested based on DSM-IV criteria. The Veteran testified at the August 2017 Board hearing that he worked on planes in Japan that held bodies and that the smell of dead animals set him off. The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened. See Shade, 24 Vet. App. at 117. Specifically, the new evidence suggests that the Veteran may have PTSD related to service. Such evidence is presumed credible for the purposes of determining whether the evidence is new and material. Therefore, the additional evidence is both new and material, and the claim for service connection claim for PTSD is reopened. The reopened claim is discussed in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. 3. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. 4. Entitlement to service connection for neuropathy, to include as due to herbicide exposure, is remanded. The record indicates that there may be outstanding, relevant VA treatment records. In August 2017 the Veteran and his representative submitted VA treatment records from September 2015 to March 2017, and in December 2016 they submitted treatment records from February 2015 to August 2015 from the North Florida/South Georgia Veterans Health System. The regional office has obtained treatment records from the Asheville VA Medical Center through April 2012 and the West Palm Beach VA Medical Center through May 2004. The October 2014 statement of the case includes VA treatment records from Gainesville through October 2014 in the list of evidence. However, these complete records were not associated with the claims file. Therefore, a remand is required to obtain the complete VA treatment records. The Veteran also testified at the August 2017 Board hearing that he receives Social Security disability benefits. In January 2018, the Veteran’s representative submitted documentation from the Social Security Administration that the Veteran receives disability benefits. However, the underlying records from the Social Security Administration have not been obtained. Those records may be relevant to the Veteran’s claims. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, they must be obtained. At the August 2017 Board hearing, the Veteran withdrew the issue of service connection for right ear hearing loss. However, the hearing transcript does not show that the Veteran necessarily had a full understanding of the consequences of withdrawing the issue. See Acree v. O’Rourke, 891 F.3d 1009, 1014-15 (2018). Therefore, the issue is still on appeal unless the Veteran or his representative withdraws it in writing. 5. Entitlement to service connection for PTSD is remanded. Regarding the reopened claim of service connection for PTSD, the Board finds that the January 2010 letter the chairman of the 610 Military Airlift Support Squadron Alumni Association and the service personnel records verify the Veteran’s stressor of being exposed to the dead and injured while performing his duties maintaining aircraft at Yokota Air Base in Japan. See 38 C.F.R. § 3.304(f). Furthermore, the treatment records show that the Veteran has been diagnosed with PTSD. Therefore, he must be scheduled for a VA examination before the claim can be decided on the merits. 6. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder, is remanded. The U.S. Court of Appeals for Veterans Claims (Court) has held that claims for service connection for a mental health disability encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record). Therefore, the claim of service connection for major depressive disorder, has been recharacterized as service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder. The Veteran had a VA examination in March 2012. The examiner opined that the diagnosed major depression with mood disorder was less likely as not proximately due to, the result of, or aggravated by the service-connected low back strain with degenerative joint disease. It was noted that an April 2001 treatment record states that the onset of the mental health issues followed a 1989 workplace injury. The rationale related to causation but did not include any analysis or discussion of whether the major depression with mood disorder was aggravated by the service-connected back condition. Therefore, the Veteran must be scheduled for a new examination before the claim can be decided on the merits. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“…[M]ost of the probative value of a medical opinion comes from its reasoning” and the Board “must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.”). 7. Entitlement to an evaluation in excess of 40 percent for a low back disability is remanded. The Veteran had a VA examination in May 2012. His testimony at the August 2017 Board hearing and a questionnaire completed by a private treating chiropractor in October 2017 indicate that the low back disability may have worsened since the May 2012 examination. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of this disability and related symptomatology. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 8. Entitlement to a TDIU When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran is not working and the record, including testimony from the August 2017 Board hearing and the October 2017 statement by the private chiropractor, suggests that his service-connected disability affects the Veteran’s ability to work. The assignment of a disability rating for the Veteran’s low back disability and resolution of the service connection claims may impact whether the Veteran satisfies the schedular requirements for a TDIU rating, as set forth in 38 C.F.R. § 4.16(a). As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Request that the Veteran’s representative provide a written withdrawal of the claim for service connection for right ear hearing loss. Further instruct the Veteran’s representative that if such a written withdrawal is not received, the claim will continue to be considered in appellate status. 2. Obtain the Veteran’s complete VA treatment records from the North Florida/South Georgia Veterans health system including Gainesville and Lake City medical centers, records from the Charles George (Asheville) VA Medical Center from April 2012 to the present, from the VA West Palm Beach Medical Center from May 2004, and any other VA treatment records that have not been associated with the file. 3. Obtain the Social Security Administration records pertinent to the Veteran’s claim for Social Security disability benefits and the medical records relied upon concerning that claim. 4. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of any diagnosed acquired psychiatric disability, including PTSD and major depressive disorder. The examiner must be given full access to the Veteran’s complete VA claims file and the Veteran’s electronic records for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that PTSD is related to an in-service injury, event, or disease. The examiner must assume that the Veteran’s reports of coming in close contact with the bodies of the dead and with the injured while working on aircraft in Japan are credible. The examiner must also provide an opinion regarding whether any diagnosed acquired psychiatric disability, including major depressive disorder with mood disorder, was at least as likely as not (50 percent or greater probability) (1) proximately due to the low back disability, or (2) has been aggravated beyond its natural progression by the low back disability. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The reviewer must include in the medical report the rationale for any conclusions expressed, to include descriptions of the medical processes involved and citation to relevant medical literature/treatise as necessary. A report containing unsupported/unexplained conclusions will be returned as inadequate. If the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability and any associated symptomatology. The entire claims file must be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted and the results reported. The VA examiner must address the extent of functional and industrial impairment due to the Veteran’s service-connected low back disability and furnish a full description of the effects of the service-connected disability upon the Veteran’s ordinary activity, including employment. All opinions must be supported by a complete rationale. 6. Perform any other development deemed necessary. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel