Citation Nr: 18153882 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-58 725 DATE: November 28, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and PTSD, has been received and the claim is reopened; to this limited extent, the Veteran’s appeal is granted. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for hypertension, to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for diabetes mellitus type 2, to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and PTSD, is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is remanded. FINDING OF FACT A June 1991 rating decision denied entitlement to service connection for PTSD. Evidence received subsequent to June 1991 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and PTSD. CONCLUSION OF LAW Evidence received since the June 1991 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and PTSD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1973 to January 1975. A hearing was not requested. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and PTSD Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that “[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim.” Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); 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, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In June 1991, the RO denied a claim of entitlement to service connection for a nervousness condition to include PTSD. Reasons for this denial included that there was no evidence of treatment for or diagnosis of PTSD during service and that there was no current diagnosis of PTSD. In rating decisions dated August 1998, September 2013, and November 2013, the RO held that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for PTSD. Since June 1991, VA mental disorders examinations dated November 2012 and June 2013 indicate a current diagnosis of a mood disorder NOS, and in an April 2012 statement, the Veteran states that being exposed to gunfire and propaganda speakers at the Korean DMZ is an in-service stressor. In a February 2013 buddy statement, a fellow serviceman states that the Veteran reported hearing voices during service and was in constant fear. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. REASONS FOR REMAND A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 1. Entitlement to service connection for a back disorder is remanded. These elements are satisfied with regard to the claim of entitlement to service connection for a back disorder. Regarding the first element, the evidence indicates back pain. Regarding the second element, in an April 2012 statement, the Veteran indicates that he has experienced back pain since 1973. Regarding the third and fourth elements, there is an indication that current back pain could be related to in-service back pain, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 2. Entitlement to service connection for hypertension, to include as a result of exposure to herbicide agents, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for hypertension. Regarding the first element, an April 2015 VA medical records indicates a current diagnosis of hypertension. Regarding the second element, the Veteran argues that this is the result of exposure to herbicide agents that occurred when digging foxholes in terrain that was previously exposed to herbicide agents. Regarding the third and fourth elements, there is an indication that hypertension could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The Board notes that the RO has already completed development suggesting that the Veteran was not present in the Korean DMZ until after a period of time when herbicide agents were sprayed there. See January 2013 DPRIS response. However, since that time the Veteran has submitted lay statements about herbicide agent exposure, including in a February 2013 buddy statement and his November 2016 VA Form 9. On remand, the examiner should consider these statements. 3. Entitlement to service connection for diabetes mellitus type 2, to include as a result of exposure to herbicide agents, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for diabetes. Regarding the first element, an April 2015 VA medical record indicates a current diagnosis of diabetes. Regarding the second element, the Veteran argues that this is the result of exposure to herbicide agents that occurred when digging foxholes in terrain that was previously exposed to herbicide agents. Regarding the third and fourth elements, there is an indication that hypertension could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 4. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and PTSD, is remanded. The Veteran’s medical treatment records indicate a number of acquired psychiatric disorders. Most recently, a March 2013 VA medical record indicates a positive depression screen. A May 2012 VA medical records indicates an Axis I diagnosis of paranoid schizophrenia. The November 2012 VA mental disorders examination indicates a current diagnosis of mood disorder NOS but does not opine as to whether or not this disorder is at least likely as not related to service. A new examination and opinion are required. 5. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is remanded. The Veteran’s last VA examination was conducted in September 2015. Given the length of time since the Veteran’s last VA examination, a remand is required to afford the Veteran with a contemporaneous VA examination to assess the current nature, extent, and severity of service-connected bilateral hearing loss. Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Additionally, on remand the RO should obtain all relevant VA treatment records dated from April 2015 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from April 2015 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed back disorder, hypertension, and diabetes. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed back disorder, hypertension, or diabetes. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed back disorder was incurred in the Veteran’s service. In rendering this opinion, the examiner should consider the April 2012 statement in which the Veteran states that he has experienced back pain since 1973. (c.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed diabetes or hypertension was incurred in the Veteran’s service, including but not limited to as a result of exposure to herbicide agents. In rending these opinions, the examiner should address statements made in the February 2013 buddy statement and the November 2016 VA Form 9. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any acquired psychiatric disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions. (a.) Identify all acquired psychiatric disorders currently present, including whether the Veteran has a current diagnosis of a mood disorder or paranoid schizophrenia. (b.) Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder had its onset in service or was otherwise caused by an in-service disease or injury. (c.) Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran’s discharge from his period of active service. (d.) If a diagnosis of PTSD is warranted, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that PTSD is due to exposure to an actual confirmed stressor or the fear of hostile military or terrorist activity. 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 attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror. In rendering these opinions, the examiner should consider the April 2012 statement, in which the Veteran describes being exposed to gunfire and propaganda speakers at the Korean DMZ. The examiner should also consider the stressors listed in the November 2012 VA mental disorders examination. The examiner should also consider the February 2013 buddy statement in which a fellow serviceman states that the Veteran heard voices during service and was in constant fear. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. Provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected hearing loss. If the Veteran does not wish to participate in an audiological examination, this should be noted in the claims file. Audiometric testing should be completed and any hearing loss disability under 38 C.F.R. § 3.385 should be noted. A Maryland CNC speech recognition test must be completed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel