Citation Nr: 18160050 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-49 620 DATE: December 21, 2018 ORDER New and material evidence has been submitted and the claim of entitlement to service connection for major depressive disorder is reopened. Service connection for major depressive disorder is granted. New and material evidence has been submitted and the claim of entitlement to service connection for peripheral neuropathy of the right upper extremities, secondary to diabetes mellitus is reopened. New and material evidence has been submitted and the claim of entitlement to service connection for peripheral neuropathy of the left upper extremities, secondary to diabetes mellitus is reopened. New and material evidence has been submitted and the claim of entitlement to service connection for peripheral neuropathy of the right lower extremities, secondary to diabetes mellitus is reopened. New and material evidence has been submitted and the claim of entitlement to service connection for peripheral neuropathy of the left lower extremities, secondary to diabetes mellitus is reopened. REMANDED Entitlement to a rating in excess of 20 percent for diabetes mellitus, type two is denied. Entitlement to an effective date earlier than August 22, 2012 for the grant of service connection for diabetes mellitus, type two is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremities, secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremities, secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremities, secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremities, secondary to diabetes mellitus, is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) is remanded. Entitlement to service connection for hypertension is remanded. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss is remanded. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a January 2008 rating decision, the RO denied service connection for major depressive disorder. The Veteran appealed this decision. A September 2009 Statement of the Case was issued, but the Veteran did not appeal the decision, nor did he submit new and material evidence within one year of the issuance of the SOC. 2. Additional evidence has been received since the January 2008 rating decision that relates to an unestablished fact that is necessary to substantiate the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities. 3. In a January 2008 rating decision, the RO denied service connection for a peripheral neuropathy of the right and left upper and lower extremities. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 4. Additional evidence has been received since the January 2008 rating decision that relates to an unestablished fact that is necessary to substantiate the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities. 5. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s major depressive disorder is related to service. CONCLUSIONS OF LAW 1. The January 2008 rating decision that denied service connection for major depressive disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for major depressive disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The January 2008 rating decision that denied service connection for bilateral upper and lower peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence to reopen the claims for service connection for bilateral upper and lower peripheral neuropathy has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria to establish service connection for major depressive disorder are met. 38 U.S.C. §§ 1101, 1110, 1134(a), 5107; 38 C.F.R. § 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to November 171. This claim arose to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder and peripheral neuropathy of the right and left upper and lower extremities The Veteran seeks entitlement to service connection for a psychiatric disorder and peripheral neuropathy of the right and left upper and lower extremities, secondary to diabetes mellitus. Implicit in these claims is the contention that new and material evidence has been received which is sufficient to reopen previously disallowed claims. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran filed original claims for service connection for the conditions and was denied in a January 2008 rating decision. The Veteran’s claims for peripheral neuropathy of the upper and lower extremities was denied because his medical records showed no evidence of peripheral neuropathy. The Veteran was notified but did not appeal the decisions. Accordingly, those rating decisions are final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The VA denied the Veteran’s claim for a psychiatric disorder because the Veteran’s medical records did not demonstrate treatment for any psychiatric disorders. Following the January 2008 rating decision, the Veteran filed a Notice of Disagreement pertaining to the claim for service connection for major depressive disorder. The VA responded with a September 2009 Statement of the Case (SOC). The Veteran submitted no response, nor did he submit any new and material evidence within one year of the issuance of the SOC. Accordingly, that rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Subsequently, the Veteran filed the instant application to reopen his claim. Concerning the Veteran’s claim for major depressive disorder, he submitted documentation demonstrating that he was receiving treatment for major depressive disorder, and his provider determined his major depressive disorder was related to service. Concerning the Veteran’s claims for bilateral upper and lower extremity, his medical records from the VA now confirm that he receives treatment for diabetic peripheral neuropathy of the upper and lower extremities. Accordingly, this new documentation from the Veteran’s doctor proffers evidence of a previously unestablished element of these claim, and each of these claims will be reopened. 2. Entitlement to service connection for major depressive disorder The Veteran contends that he is entitled to service connection for major depressive disorder. For the following reasons, the Board finds service connection warranted. On review, the Board concludes that the Veteran has suffered from major depressive disorder with anxious distress features that is related to or aggravated by 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). Current VA medical records show the Veteran has been receiving treatment for major depressive disorder and generalized anxiety, and in November 2017 and June 2012, two separate, treating mental health providers opined that the Veteran’s major depressive disorder more likely than not was related to service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the elements of service connection have been met. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type two. In communications to the VA, the Veteran has indicated that his diabetes has worsened since his last examination in August 2014. As such, an updated examination for diabetes is in order. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). Furthermore, the most recent VA medical records for this Veteran date from August 2013. Upon remand, the VA should obtain the Veteran’s most up-to-date VA medical records. 2. Entitlement to an effective date earlier than August 22, 2012 for the grant of service connection for diabetes mellitus, type two is remanded In the Veteran’s July 2014 Notice of Disagreement to the Board, he elected to appeal the effective date for the grant of service connection for diabetes mellitus, type two. To date, the VA has not issued a Statement of the Case (SOC) to the Veteran or his lawyer. As such, a remand is necessary so that the VA may issue an SOC for all four claims. Manlincon v. West, 12 Vet. App. 239, 241-41 (1999). 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. At the Veteran’s August 2013 examinations for diabetic peripheral neuropathy, the examiner determined the Veteran did not qualify for a diagnosis. However, since that examination, the Veteran’s VA medical records from November 2015—submitted by the Veteran’s lawyer—demonstrate that he has been diagnosed with diabetic peripheral neuropathy of the bilateral lower and upper extremities. As such, given the evidence, an examination is in order to determine the nature and etiology. 5. Entitlement to service connection for glaucoma, COPD, and hypertension The Veteran claims entitlement to service connection for glaucoma, COPD, and hypertension, based on Agent Orange exposure. The RO denied the Veteran’s claims, due to a negative nexus finding by a VA examiner. A thorough review of the Veteran’s file reveals, however, that there are no examinations pertaining to glaucoma, COPD, or hypertension. As such, a remand is in order to obtain those examinations and associate them with the file. 6. Whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus, and entitlement to service connection for bilateral hearing loss and tinnitus The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus. Implicit in those claims are his claims to reopening. In July 2013, the RO performed an examination on the Veteran. A thorough review of the Veteran’s file reveals, however, that those examinations are not in the file. As such, a remand is in order to obtain those examinations and associate them with the file prior to adjudication of the four claims. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) During the pendency of the appeal, in a December 2017 communication to the VA, the Veteran has raised the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as this matter is inextricably intertwined with the remanded claims discussed, this issue must be remanded as well. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Issue a statement of the case which addresses the issue of entitlement to an earlier effective date for the grant of service connection for diabetes mellitus, type two. Inform the Veteran of his appeal rights and that he must file a timely substantive appeal if he desires appellate review. 2. Schedule the Veteran for an examination to determine the nature and severity of his diabetes mellitus, type two. 3. Schedule the Veteran for an examination to determine the nature and etiology of his peripheral neuropathy of the upper and lower extremities. The examiner is asked to review the claims file. The examiner should then provide the following information: a. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s peripheral neuropathy is caused by or aggravated by his service connected diabetes mellitus, type two. b. If it is determined that there is another likely etiology for the Veteran’s claimed peripheral neuropathy, that should be stated. 4. Obtain and associate with the Veteran’s folder all C&P examinations related to hypertension, COPD, glaucoma hearing loss and tinnitus, as well as all updated VA medical treatment records. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues remaining on appeal, to include the issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ryan