Citation Nr: 18154815 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 18-07 631 DATE: November 30, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a phobic reaction, now styled as entitlement to service connection for an acquired psychiatric disorder, is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a cardiac disability is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for a urinary disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to special monthly compensation based upon the need for aid and attendance is remanded. Entitlement to a total disability based on unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran did not appeal a February 1970 rating decision denying entitlement to service connection for a phobic reaction. 2. Evidence received since the February 1970 rating decision raises a reasonable possibility of substantiating the claim now styled as entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The February 1970 rating decision that that denied entitlement to service connection for a phobic reaction is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302. 2. The evidence received after the February 1970 rating decision is new and material; the claim now styled as entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1957 to December 1958. New and material Service connection for an acquired psychiatric disorder VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). The Veteran’s claim of entitlement to service connection for a phobic reaction was denied in a February 1970 rating decision. He was notified of the decision in March 1970. A February 1970 VA Form 21-523 states that the reason for the denial was that a disability was not shown at the last examination. Thereafter a timely appeal was not perfected, and relevant new and material evidence, medical or lay, physically or constructively was not received by VA prior to the expiration of the appellate period. As such, the February 1970 rating decision is final. 38 U.S.C. § 7105. Relevant evidence added to the record since the February 1970 rating decision includes post-service private treatment records and report of a June 2017 VA examination. These records show that the appellant has been diagnosed with a psychiatric disorder. As the Veteran now has a diagnosed psychiatric disorder, the claim is reopened. REASONS FOR REMAND As to each of the claims on appeal, additional development is required prior to adjudication by the Board. In his January 2018 Substantive Appeal, the Veteran asserted that VA had not considered the treatment records of a specific named physician. Unfortunately, the name of that physician is illegible. While it appears that the Veteran has not identified a private treatment provider as a source of relevant treatment records in support of his appeal, and while it appears that he is being treated by VA, it is not clear if the Veteran intended, in his January 2018 statement, to identify private treatment records that he believes are relevant to this appeal. On remand, the RO should seek clarification. Thereafter, the RO must undertake appropriate action. Further, the most recent VA treatment records associated with the claims file are dated in June 2017. On remand, VA should obtain and associate with the claims file the Veteran’s updated VA treatment records. During VA treatment in San Juan in October 2002, the Veteran presented for initial treatment, having moved from New York City. He reported prior treatment at the VA Medical Center in New York City for psychiatric symptoms. A June 2008 VA report of magnetic resonance imaging indicates that the Veteran presented with a history of laminectomy in 1992 in New York City. During VA treatment in August 2004, the Veteran reported prior treatment at the New York City VA Medical Center for his left knee pain, then diagnosed as a meniscus tear. The treatment provider reported that record of such was available in the computer, through a network exchange option. It does not appear, however, that such records are available for Board review. It also does not appear that the RO sought the Veteran’s VA treatment records from the New York City VA Medical Center. The RO should do so. In an October 2016 response from the National Personnel Records Center, VA was informed that the Veteran’s service records were fire-related, and that if they were at the center in 1973 they were destroyed or damaged by a fire. The RO advised the Veteran, in a November 2016 letter, that his records may have been destroyed in a fire. The RO then requested that the Veteran submit a completed NA Form 13055, Request for Information Needed to Reconstruct Medical Data. The Veteran responded in November 2016. It does not appear, however, that the RO acted upon the Veteran’s completed NA Form 13055 or otherwise attempted to seek sought any outstanding service records. While the information provided by the appellant is admittedly exceptionally sparse, VA had a duty to ask the Veteran for more information. That is, e.g., where in Korea were you treated? What unit did you belong to? What medical facility treated you? Etc. The Board acknowledges that the VBMS files do show that the Veteran’s service treatment and personnel records appear to have been provided to VA prior to the 1973 fire. The available service treatment records appear complete. They include his service entrance and separation examinations as well as reports of treatment for a number of complaints during active service. It is possible, however, that records reflecting any inservice hospitalization are not of record. In a December 2016 statement, the Veteran reported that he was hospitalized three times during service in Korea for a vision problem, and he has claimed entitlement to service connection for a bilateral eye disability. The available service treatment records indicate that he was hospitalized in January 1958 for frontal pain, headaches, and in February 1958 for flu symptoms. Claims of entitlement to service connection for disabilities related to headaches or flu symptoms are not on appeal. On remand, the RO should act upon the Veteran’s completed NA Form 13055, seeking any outstanding service records, to include records reflecting hospitalization during service that may have been maintained by an entity other than the National Personnel Records Center. An acquired psychiatric disorder In a December 2016 statement, the Veteran reported experiencing psychological and mental changes during basic training. As a result, it is maintained that he was unstable, and that during advanced training his symptoms grew worse causing insomnia and a mental problem. The claimant alleges that while in Korea he experienced panic attacks and depression, and that he currently suffered from anxiety, panic attacks, depression, and sleep problems. He cited his prior New York City VA Medical Center psychiatric treatment and current VA treatment. A June 2017 VA examiner opined that the diagnosed panic disorder and situational phobia were not related to service, in part, based on the fact that the Veteran, during the examination, did not report any experience related to his military service. It does not appear, however, that the claimant reported, or that the examiner considered, the Veteran’s December 2016 statement wherein it is asserted that he experienced inservice psychiatric symptoms. While the examiner cited the Veteran’s early VA treatment in 1969 for phobic reaction, it does not appear that the examiner had to opportunity to consider the Veteran’s reported VA psychiatric treatment in New York City, prior to establishing care at the San Juan VA Medical Center. On remand, the RO, after obtaining and associating with the claims file all outstanding treatment records, should obtain an opinion that considers the Veteran’s assertions and any relevant treatment history. Hearing loss and tinnitus In a December 2016 statement the Veteran reported that he had a hearing problem during advanced training, making it hard for him to hear and requiring that he stand close to people to hear them. At a June 2017 VA examination, the Veteran was diagnosed with tinnitus and a bilateral hearing loss that met the requirements for a disability under 38 C.F.R. § 3.385. The examiner opined, however, that these disorders were not likely related to service on the bases that the Veteran’s in-service hearing and whisper voice tests were not reliable to identify the presence of hearing loss that is typically found with military noise exposure. The examiner also noted that there was no evidence of complaints of hearing loss and tinnitus of record for more than 50 years after service. It does not appear that the Veteran reported the onset of his hearing loss symptoms, or that the examiner considered the appellant’s December 2016 statement describing in-service hearing loss symptoms. On remand, the RO, after associating any outstanding treatment records with the VBMS and Vitual VA/Legacy files, should obtain an etiological opinion addressing the Veteran’s assertions and any relevant treatment history. Eye, cardiac, urinary, lumbar, cervical, shoulder, prostate, hip, knee, ankle and foot disorders; and erectile dysfunction Save for the Veteran’s December 2016 statement that he was hospitalized three times during service in Korea for a vision problem, he has not offered any argument in support of his claims of entitlement to service connection for eye, cardiac, urinary, lumbar, cervical, shoulder, prostate, hip, knee, ankle and foot disorders; and erectile dysfunction. Considering the development outlined above, however, these issues are remanded. The Veteran, however, is advised that in order to justify ordering a VA examination the evidence of record must “indicate” that a current disability “may be associated” with a Veteran’s military service or due to or aggravated by a service-connected disability McLendon v. Nicholson, 20 Vet. App. 79 (2006). While this evidentiary threshold is low, id. at 83, there is no indication in this case that these disabilities are related to service. The Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of such, and the appellant has not provided any argument in support of his claims. In essence, there is no etiological question to pose to a VA examiner. If the Veteran wishes help in developing his claim, he cannot passively wait for assistance in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, while no specific development on these issues is ordered, on remand the Veteran is encouraged to secure competent, well-reasoned medical opinion evidence linking these disorders to service. Special monthly compensation and individual unemployability The claims of entitlement to special monthly compensation based upon the need for aid and attendance, and a total disability based on unemployability due to service-connected disabilities are deferred pending completion of the development noted above. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the San Juan VA Medical Center for the period since June 2017, as well as his complete outstanding VA treatment records from the New York City VA Medical Center. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Request that the Veteran clearly and legibly identify the provider named in his January 2018 substantive appeal. Thereafter, take appropriate action to secure all pertinent records from the named provider. 3. Undertake appropriate development in response to the Veteran’s November 2016 completed NA Form 13055 to include contacting the appellant for further information if necessary to secure the evidence identified by the appellant. This includes attempting to secure any records of inpatient hospitalization for any claimed disorder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 4. Forward a completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to Veteran’s last employer. Thereafter, provide access to the Veteran’s VBMS and Virtual VA/Legacy files to the examiner who conducted the June 2017 VA psychiatric examination for an addendum etiological opinion. The examiner must opine whether it is at least as likely as not (at least a 50 percent probability) that any diagnosed acquired psychiatric disorder including, but not limited to, a panic disorder, phobia, anxiety, posttraumatic stress disorder, depression, and adjustment disorder with mixed anxiety and depressed mood, was incurred in service, or is otherwise related to service. The examiner must consider the Veteran’s December 2016 statement that he had experienced psychological and mental changes during basic training, and that during advanced training his symptoms grew worse. The examiner must also consider the appellant’s claim that he suffered from insomnia, a mental problem, and that that while in Korea he experienced panic attacks and depression. A complete, well-reasoned rationale must be provided for any opinion offered. If further examination is in order, that examination must be conducted. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. After completing directives one through four, provide the VA examiner who conducted the June 2017 VA audiological examination access to the appellant’s VBMS and Virtual VA/Legacy files and seek an addendum etiological opinion. The examiner must opine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s bilateral hearing loss and tinnitus were incurred in service, or are otherwise related to service. The examiner must consider the Veteran’s December 2016 statement that he had a hearing problem during advanced training. A complete, well-reasoned rationale must be provided for any opinion offered. If further examination is in order, that examination must be conducted. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 6. Thereafter, undertake any other development appropriate in light of the directives set forth above. This specifically includes ensuring that any Spanish language documents are fully and completely translated into English. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Purdum