Citation Nr: 1806714 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-22 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability, to include a nervous condition and depression. 2. Whether new and material evidence has been received to reopen a claim for service connection for a left eye disability. 3. Entitlement to service connection for an acquired psychiatric disability, to include a nervous condition and depression. 4. Entitlement to service connection for a left eye disability. 5. Entitlement to service connection for a neck disability. 6. Entitlement to service connection for a left shoulder disability. 7. Entitlement to service connection for vocal cord paralysis. 8. Entitlement to service connection for chronic dry cough. REPRESENTATION Veteran represented by: Andrew J. Calica, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to October 1986. These matters come to the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, NY. In May 2015, the Board remanded the appeal for a hearing. In October 2017, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The issues of service connection for an acquired psychiatric disability, a left eye disability, a neck disability, a left shoulder disability, vocal cord paralysis, and chronic dry cough are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed October 2008 Board decision denied service connection for an innocently acquired psychiatric disorder based on a finding that it was not related to service. 2. Evidence received since the October 2008 Board decision includes testimony that the Veteran's psychiatric symptoms began during service and have continued since; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. An unappealed January 2004 rating decision denied service connection for a left eye disability based on a finding that new and material evidence had not been submitted to reopen a previously-denied claim. 4. Evidence received since the January 2004 rating decision includes testimony regarding the Veteran's current left eye symptoms and medical records showing current diagnosed left eye disabilities; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for an acquired psychiatric disorder may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 2. New and material evidence has been received, and the claim of service connection for a left eye disability may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable action taken with respect to the petition to reopen the claims of service connection for an acquired psychiatric disability and a left eye disability, no further discussion of the VCAA is required with respect to these claims. Legal Criteria, Factual Background, and Analysis A December 1992 rating decision denied claims for service connection for a nervous condition and a left eye condition, because examination showed no evidence of a mental disorder or left eye disability related to service. The decision became final because the Veteran did not perfect an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.1103 (2017). In a January 2004 rating decision, the RO found that new and material evidence had not been submitted to reopen claims for service connection for a nervous condition and left eye corneal abrasion, although the decision did note that the Veteran had a diagnosis of major depressive disorder with psychotic features. The Veteran perfected an appeal as to the denial of service connection for the nervous condition to the Board, but did not appeal the denial of service connection for left eye corneal abrasion. Therefore, the decision became final as to the eye claim. Id. In October 2008, the Board denied entitlement to service connection for an innocently acquired psychiatric disorder based on a finding that it was not related to service. The decision became final because the Veteran did not initiate an appeal to the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017). In general, VA decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104b, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108 (2012). New evidence means existing 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. 38 C.F.R. § 3.156(a) (2017). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. Since the last final January 2004 rating decision for the eye claim and October 2008 Board decision for the acquired psychiatric disability claim, the Veteran provided Board testimony regarding his claims. Specifically, he testified as to current eye symptoms and related his depression to service, to include stating he believed his symptoms began during service and have continued since. New medical records have also been associated with his claims file showing diagnoses of dry eye, left eye small pterygium, and compound hyperopic astigmatic presbyope. The Board reiterates that evidence is new and material if it would, in conjunction with other evidence of record, trigger VA's duty to provide an examination. The Board finds that this testimony, if true, triggers VA's duty to provide examinations; therefore, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claims for service connection for an acquired psychiatric disability and a left eye disability are reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disability, to include a nervous condition and depression, is reopened. New and material evidence having been received, the claim of entitlement to service connection for a left eye disability is reopened. REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the remaining issues on appeal. Initially, the Board notes that the Veteran's service personnel records are not of record; therefore, attempts should be made to obtain them on remand. The Veteran contends his acquired psychiatric disorder, left eye disability, and neck disability are related to service. The Board finds that new VA examinations are needed to determine the etiologies of his acquired psychiatric disorder and left eye disability. As well, the Veteran has not been afforded a VA nexus examination with respect to the neck claim; therefore, an examination is needed to ascertain the etiology of the disability. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran testified that his left shoulder disability, vocal cord paralysis, and chronic dry cough were related to his anterior cervical disk replacement (ACDR) surgery. The Board finds that the Veteran's claims for service connection for a left shoulder disability, vocal cord paralysis, and chronic dry cough are inextricably intertwined with the claim for service connection for a neck disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Consideration of the claims for service connection for a left shoulder disability, vocal cord paralysis, and chronic dry cough must be deferred pending the resolution (development and readjudication) of the neck claim. The Board also notes that the Veteran's testimony includes some suggestion of entitlement under 38 U.S.C.A. § 1151. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate steps to obtain the Veteran's complete service personnel records. All steps taken should be thoroughly documented within the record, to include any negative responses received. 2. The AOJ should secure for association with the record updated (to the present) records of any/all VA treatment the Veteran has received for the acquired psychiatric disability, left eye disability, neck disability, left shoulder disability, vocal cord paralysis, and chronic dry cough on appeal. 3. After completing directives (1)-(2), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of his acquired psychiatric disability. Based on the record, the examiner should provide a response to the following: Is it at least as likely as not (a 50% or higher degree of probability) that an acquired psychiatric disability is related to service? The rationale for this opinion must include some discussion of the Veteran's October 2017 Board hearing testimony and the June 2003 private medical questionnaire indicating without explanation that a psychiatric condition is related to service. Detailed reasons for all opinions should be provided. 4. After completing directives (1)-(2), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of a left eye disability. Based on the record, the examiner should provide a response to the following: Is it at least as likely as not (a 50% or higher degree of probability) that a left eye disability, to include dry eye, small pterygium, and compound hyperopic astigmatic presbyope, is related to service? The rationale for this opinion must include some discussion of the Veteran's service records showing an August 1986 left corneal abrasion and his testimony concerning his current symptoms. Detailed reasons for all opinions should be provided. 5. After completing directives (1)-(2), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of his neck disability. Based on the record, the examiner should provide a response to the following: Is it at least as likely as not (a 50% or higher degree of probability) that a neck disability is related to service? The rationale for this opinion must include some discussion of the August 1986 notation in the service records of complaints of neck problems. Detailed reasons for all opinions should be provided. 6. The AOJ should then review the obtained VA examination reports to ensure that the opinions contained therein are responsive to the questions posed. 7. The AOJ should then review the record and readjudicate the six claims in appellate status. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs