Citation Nr: 18156257 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-18 314 DATE: December 7, 2018 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a psychiatric disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a headache disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a right eye disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a left shoulder disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a neck disability is granted. New and material evidence having not been submitted, reopening of the claim of entitlement to service connection for epistaxis (nose bleeds) is denied. REMANDED Entitlement to service connection for a psychiatric disability is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. FINDINGS OF FACT 1. In an unappealed October 1974 rating decision, the Veteran was denied entitlement to service connection for a psychiatric disability and headache disability. 2. The evidence received since the October 1974 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claims of entitlement to service connection for a psychiatric disability and headache disability. 3. In an unappealed September 1997 rating decision, the Veteran was denied entitlement to service connection for a right eye disability, left shoulder disability, neck disability, and epistaxis. 4. For the claims of entitlement to service connection for a right eye, left shoulder, and neck disability; the evidence received since the September 1997 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claims. 5. For the claim of entitlement to service connection for epistaxis, the evidence received since the September 1997 rating decision is cumulative or redundant of the evidence of record at the time of the prior denial and does not relate to an unestablished fact necessary to establish the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for a psychiatric disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received and the claim of entitlement to service connection for a headache disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has been received and the claim of entitlement to service connection for a right eye disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. New and material evidence has been received and the claim of entitlement to service connection for a left shoulder disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. New and material evidence has been received and the claim of entitlement to service connection for a neck disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 6. New and material evidence has not been received to reopen the claim of entitlement to service connection for epistaxis (nose bleeds). 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Marine Corps from March 1973 to May 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the VA Regional Office (RO) in Winston-Salem, North Carolina. In light of other psychiatric diagnoses of record, the Board has recharacterized the issue as entitlement to service connection for a psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 4-6, 8 (2009). Claims to Reopen 1. Service connection for a psychiatric and headache disability In an October 1974 rating decision, the RO denied entitlement to service connection for a psychiatric disability, to include headaches. The RO determined that the evidence was insufficient to show that the Veteran’s psychiatric disability with headaches was related to service. The Veteran did not appeal that decision. The evidence that has been received since the October 1974 rating decision includes an October 2016 VA psychiatric examination, VA treatment records noting additional diagnoses of a psychiatric disability, and the Veteran’s lay statement that he injured his head after a slip and fall during service which resulted in headaches and panic attacks. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a psychiatric and headache disability. Therefore, reopening of the claims is warranted. 2. Service connection for a right eye, left shoulder, and neck disability In a September 1997 rating decision, the RO denied entitlement to service connection for right eye, left shoulder, and neck disabilities. The RO determined that the Veteran’s right eye disability, diagnosed as amblyopia and esotropia, preexisted the Veteran’s active service. The RO found that the Veteran’s esotropia led to diminution of the Veteran’s vision, to include blindness, in his right eye and that there was no objective evidence that the Veteran’s right eye disability was permanently worsened or aggravated by service. Additionally, the RO concluded that the Veteran did not have a currently present neck or left shoulder disability that was related to service. The Veteran did not appeal that decision. The evidence that has been received since the September 1997 rating decision includes VA treatment records revealing complaints of and diagnoses for a left shoulder and neck disability, and the Veteran’s lay statement that he had a slip and fall during service which resulted in a head, left shoulder, and neck injury. He added that since the in-service incident, he has had impaired vision in his right eye and neck and left shoulder pain. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claims of entitlement to service connection for right eye, left shoulder, and neck disabilities. Therefore, reopening of the claims is warranted. 3. Service connection for epistaxis (nose bleeds) In a September 1997 rating decision, the RO denied entitlement to service connection for epistaxis (nose bleeds). The RO concluded that the Veteran did not have any currently present epistaxis that was related to service. The Veteran did not appeal that decision. The evidence that has been received since the September 1997 rating decision includes a February 2016 VA treatment note in which the Veteran reported of a history of nose bleeds and the Veteran’s lay statement that he had a slip and fall during service which resulted in nose bleeds. The Board finds that the additional evidence is not new and material. While the evidence is new, it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for epistaxis. The Veteran’s reported history of having nose bleeds was previously considered by VA and so, is redundant. To the extent that the Veteran had nose bleeds, a current disability has not been diagnosed. Therefore, as new and material evidence has not been presented, reopening of the claim is not warranted. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The Veteran has contended that his psychiatric, headache, right eye, left shoulder, left knee, neck, and bilateral hand disabilities are related to his active service. Specifically, the Veteran stated that he worked as a supply clerk in the mess hall. He described falling on his left side “fast and hard” after slipping on an icy cooler floor while carrying a large, heavy crate of meat. He recalled that the crate of meat hit him in the head and that he directly hit his head, left shoulder, and left knee on the concrete floor. Approximately two weeks later, he stated that he was medivacked from Okinawa to a Naval hospital in late November 1973. He added that since the in-service incident, he has had impaired vision in his right eye, constant headaches, pain in his neck and left shoulder, and panic attacks. Service treatment records (STRs) are silent for any slip and fall accident and any injuries that the Veteran may have sustained directly from a slip and fall accident. Nonetheless, the Veteran’s October 1972 induction examination noted that the Veteran had defective vision in his right eye. In September 1973, the Veteran complained of headaches and pain in the back of his right eye. He was diagnosed with esotropia and amblyopia in his right eye. There was no objective evidence of ocular pathology. A service optometrist noted that the Veteran had an operation on his right eye when he was eight years old. He concluded that the Veteran’s headaches and dizziness were not the result of any vision problems. However, the Veteran continued to complain of headaches and vision-related symptoms during his active service. Additionally, the Veteran was observed to be depressed in late September 1973. By mid-November 1973, the Veteran was evaluated at a military hospital in Okinawa for headaches and visual deficits. In late November 1973, the Veteran was admitted to a Naval hospital for complaints of headaches, blurred vision in his right eye, and occasional syncopal episodes. Upon admission, the Veteran stated that the onset of his symptoms began shortly after having been sent to Okinawa and was assigned to mess detail. A hospital medical provider found no evidence of psychosis or depression. After an eye consult revealed no organic pathology, the final diagnosis was hysterical neurosis, conversion type, existing prior to entrance (EPTE). The Veteran mentioned that he had not received “specialty training” and that his menial work (in the Mess Hall) would not help the Marines. The Veteran was discharged from the psychiatric unit in January 1974. In March 1974, the Veteran was referred for an additional psychiatric consultation after he reported chronic and situational anxiety, headaches, syncopal and “hysterical jerking” episodes, periods of emotional lability and loss of control, and fear of inadequacies in his military life. A March 1974 Medical Evaluation Board (MEB) report concluded that the Veteran had severe, inadequate personality with hysterical features, EPTE, manifested by repeated failures, low tolerance for stress, poor judgment, and a tendency to experience psychological stress through physical symptoms. Last, in March 1974, the Veteran complained of loss of sensation and hardening of the middle digit on his left hand and a history of trauma was noted. A review of post-service treatment records shows that the Veteran complained of and received treatment for symptoms related to psychiatric, right eye, left shoulder, left knee, neck, and bilateral hand disabilities. He was formally diagnosed with dysthymia, depressive disorder, anxiety disorder, legal blindness in his right eye, degenerative disc disease of the cervical spine, and bilateral Dupuytren’s contractures. Additionally, a left knee arthroscopy was noted. In October 1998, the Veteran reported a history of head injuries and headaches behind his right eye since he was fourteen years old. He stated that the last “bump” to his head was in 1995. Further, he reported that he fell off a ladder or roof in 1995 and was treated at a hospital. In August 1974, the Veteran was afforded a general VA examination. The Veteran reported a headache and right eye disability. An examiner noted that the Veteran’s had weak vision in his right eye since he was a child. The Veteran was diagnosed with esotropia and amblyopia in his right eye. Additionally, the Veteran was diagnosed with inadequate personality and moderate, right frontal headaches by subjective complaint of unknown cause. The Veteran was provided an additional VA psychiatric examination in October 2016. The examiner diagnosed intermittent explosive disorder (IED) and unspecified anxiety disorder. The examiner opined that the Veteran’s IED was less likely than not caused by military service. The examiner explained that the Veteran had a history of pre-military behavioral problems, to include dropping out of school in the eighth grade, a history of alcohol use, and arrest for public drunkenness as a teen. Further, the examiner noted that the Veteran had a history of criminal behavior following service, including conspiracy to commit arson, possession of a firearm while on probation, and “unknowingly” growing marijuana on his property. The examiner stated that the Veteran had violent and/or angry outbursts towards members of his family and at work. Additionally, the examiner opined that the Veteran’s anxiety disorder was less likely as not caused by his military service. The examiner noted the Veteran’s mental condition in the military and the March 1974 MEB report that indicated that the Veteran ‘“suffer[ed] from an inherent pre-existing disorder of such severity that it render[ed] him unsuitable for further… service and he now suffer[ed] from no disability which [was] a result of incident of service or aggravated thereby.”’ The examiner stated that the Veteran had a history of trauma prior to the military, to include childhood physical and sexual abuse. With regard to the Veteran’s reported slip and fall accident during service, the examiner found no report of this incident in the Veteran’s STRs. Finally, the examiner noted that after the military, the Veteran reported that he had no history of mental health treatment until many years later. The Board finds the August 1974 and October 2016 VA examinations inadequate as the examiner did not sufficiently explain the etiology of the Veteran’s psychiatric disability. In this regard, the examiners did not address the symptoms of depression, chronic and situational anxiety, and panic attacks experienced by the Veteran during service and the post-service diagnoses for dysthymia, depressive disorder, and anxiety disorder. As such, a remand is warranted to determine the nature and etiology of any currently present psychiatric disability. In addition, as the precise nature of the Veteran’s right eye disability is unclear, the Board finds that a new VA examination should be provided to determine the nature and etiology of the right eye disability, to include a determination as to whether it clearly and unmistakably existed prior to active service and was clearly and unmistakably not aggravated by active service; and, whether he has a right eye disability that could be characterized as a congenital defect versus a congenital disease. Moreover, in light of the Veteran’s report of a slip and fall during service and the service and post-service medical evidence for the claimed disabilities, the Board finds that the Veteran should be afforded VA examinations to determine the nature and etiology of any currently present headache, left shoulder, neck, left knee, and bilateral hand disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by a psychiatrist or psychologist with sufficient expertise to determine the nature and etiology of any currently present psychiatric disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, or proximate thereto. Then, for each psychiatric disability identified, the examiner should state whether the disability clearly and unmistakably existed prior to the Veteran’s active service. In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. (a.) For any psychiatric disability found to clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether such disability was clearly and unmistakably NOT aggravated by service. The examiner should specifically comment on the symptoms of depression and chronic and situational anxiety noted in the Veteran’s STRs, the Veteran’s report of “menial work” and the slip and fall accident that resulted in headaches and panic attacks when he was assigned to the mess hall, the November 1973 hospital report, the March 1974 MEB report, and the Veteran’s pre- and post-service history of head injuries. Additionally, the examiner should determine whether the Veteran’s reported headaches are a manifestation of any currently present psychiatric disability. (b.) For any psychiatric disability that did NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on the symptoms of depression, chronic and situational anxiety noted in the Veteran’s STRs, the Veteran’s report of “menial work” and the slip and fall accident that resulted in headaches and panic attacks when he was assigned to the mess hall, the November 1973 hospital report, the March 1974 MEB report, and the Veteran’s pre- and post-service history of head injuries. Additionally, the examiner should determine whether the Veteran’s reported headaches are a manifestation of any currently present psychiatric disability. Additionally, in forming the requested opinions, the examiner should consider that the Veteran’s lay assertions alone are not a sufficient basis to determine that he clearly and unmistakably had a psychiatric disability that pre-existed entrance to active service. Further, the lack of medical treatment or diagnosis of a psychiatric disability during service alone is not a sufficient basis to determine that a psychiatric disability was clearly and unmistakably not aggravated during active service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present right eye disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all right eye disabilities present during the pendency of the claim, or proximate thereto. Then, for each right eye disability identified, the examiner should determine whether the disability is a congenital defect, or a disease. For VA purposes, the term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, “defects” are defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. The examiner must offer the opinion in the terms as listed above. (a.) For any currently present right eye disability considered a congenital defect, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that it was subject to, or aggravated by, a superimposed disease or injury during active service, which resulted in additional disability. (b.) For any currently present right eye disability considered a disease or the result of injury, the examiner should state whether the disability clearly and unmistakably preexisted the Veteran’s service and if so, whether such disability was clearly and unmistakably NOT aggravated by active service. In responding to that question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. Additionally, the Veteran’s lay statements alone are not sufficient upon which to support a finding that a disability clearly and unmistakably preexisted service. (c.) For any currently present right eye disability (disease or disability resulting from injury ONLY), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability is etiologically related to his active service. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present headache disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present headache disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on the headaches noted in the Veteran’s STRs, the Veteran’s report that he has had headaches since he hit his head in a slip and fall accident during service, the November 1973 hospital report, the March 1974 MEB report, and the Veteran’s pre- and post-service history of head injuries. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present left shoulder disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present left shoulder disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on the post-service left shoulder X-rays and the Veteran’s report that he hit his left shoulder in a slip and fall accident during service. 6. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present left knee disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present left knee disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on the post-service left knee arthroscopy and the Veteran’s report that he hit his left knee in a slip and fall accident during service. 7. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present neck disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present neck disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on the post-service cervical spine X-rays, post-service diagnosis for degenerative disc disease, and the Veteran’s report that he has had neck pain since his slip and fall accident during service. 8. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present bilateral hand disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present bilateral hand disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on the post-service diagnosis for bilateral Dupuytren’s contractures, the in-service treatment for loss of sensation and hardening of the middle digit on his left hand in March 1974, and the Veteran’s report that he was injured in a slip and fall accident during service. 9. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 10. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel