Citation Nr: 1807801 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-18 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD); and if so, whether service connection is warranted. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for substance abuse; and if so, whether service connection is warranted. 3. Entitlement to service connection for hepatitis C. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to February 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran provided sworn testimony before the undersigned Veterans Law Judge at an August 2017 Travel Board hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. The Veteran's claim of entitlement to service connection for PTSD has been recharacterized, as expanded in the issues section supra, to afford the Veteran a sympathetic and broad review of his mental health symptoms/diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In August 2016, the RO denied increased ratings for bilateral foot dermatitis and entitlement to service connection for tuberculosis. That same month, the Veteran filed a document requesting the RO to "reconsider" his claims based on re-review of the evidence, as well as selected service treatment records. The request for reconsideration was not a valid Notice of Disagreement (NOD) because he did not express disagreement and a desire for Board review of the August 2016 rating decision. Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002); 38 C.F.R. § 20.201 (2017). Furthermore, effective March 24, 2015, a NOD must be submitted via a specific form provided by the VA (VA Form 21-0958). 38 C.F.R. § 20.201 (2017); 79 Fed. Reg. 57660 -57698 (Sept. 25, 2014). Since more than one year has passed from the rating decision, and the Veteran has not submitted a NOD Form 21-0958 regarding these issues, the August 2016 rating decision is final and these issues are not before the Board. 38 C.F.R. § 20.1103 (2017). The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, substance abuse, and hepatitis C are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By an October 2002 rating decision, the Veteran's claims of entitlement to service connection for PTSD and substance abuse were denied. The Veteran did not have a verifiable stressor or a current PTSD diagnosis. His substance abuse was found to be willful misconduct, statutorily barred from direct service connection entitlement. This rating decision became final. 2. Evidence received since the October 2002 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the Veteran's service connection claims for an acquired psychiatric disorder, to include PTSD, and substance abuse. CONCLUSIONS OF LAW 1. The October 2002 rating decision denying the Veteran's claims of entitlement to service connection for PTSD and substance abuse is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and substance abuse has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's application to reopen his previously denied claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and substance abuse, this application, and only this application, has been granted, as discussed below. As such, the Board finds that any error related to the Veterans Claims Assistance Act of 2000 (VCAA) solely with regard to the Veteran's application to reopen his claims is now moot. Nonetheless, the Board finds that the Veteran received proper VCAA notice regarding his new and material claims in August 2009 and June 2011 letters. The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and substance abuse. After reviewing the evidence of record, the Board finds that new and material evidence has been submitted. The Veteran's claims of entitlement to service connection for PTSD and substance abuse were previously denied in an October 2002 rating decision. The RO notified the Veteran that his claims were denied that same month. No notice of disagreement was filed, and no new and material evidence was received within one year following the notification of that decision. Accordingly, the October 2002 rating decision became final. In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, a veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). The basis of the October 2002 rating decision was the conclusion that the Veteran did not have a current diagnosis of PTSD, his alleged stressor could not be verified, and his substance abuse was barred as a matter of law. However, newly submitted evidence in the form of updated VA treatment records/examinations showing diagnoses of anxiety, mood disorder, and psychosis, as well as lay statements/testimony regarding two instances of in-service personal assault, renders the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, reasonably capable of substantiation. Similarly, new evidence primarily in the form of the Veteran's hearing testimony, suggests the Veteran's alleged substance abuse disorder may be related to his mental health diagnoses resulting in a reasonable possibility of substantiating the claim under 38 C.F.R. § 3.310. The above cited evidence is new, as it was not previously considered in the prior final rating decision, and is material, as it relates to the unestablished fact of a current psychiatric diagnosis and a potential relationship to an in-service event or occurrence. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-18. Accordingly, these claims are reopened. However, the Board cannot, at this point, adjudicate the reopened claims, as further development is necessary. This is detailed in the REMAND below. ORDER As new and material evidence has been submitted regarding the claims of entitlement to service connection for an acquired psychiatric disability, to include PTSD, and substance abuse, the Veteran's claims are reopened. To this extent only, the appeals are granted. REMAND Although the Board regrets additional delay in the adjudication of this appeal, all of the Veteran's service connection claims must be remanded for additional evidentiary development, the results of which may assist in the substantiation of the claims. Further, the Veteran's due process rights prevent the Board from adjudicating these matter, when the Board has notice that relevant evidence remains outstanding. See 38 C.F.R. §§ 3.103, 19.9(a) (2017); Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.2009)). Service treatment records Pursuant to 38 C.F.R. § 3.159(c)(2), "VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include . . . service medical records." While the record contains service treatment records, the Veteran testified that he underwent mental health counseling while serving in the United States Army. Specifically, he indicated that he was seen for mental health consultations while stationed at Fort Ord in California, Fort Lewis in Washington, and at an Army base in Wildflecken, Germany. The Veteran's military personnel records establish that the Veteran was stationed at Fort Ord from April 1972 to August 1972; at Fort Lewis from October 1972 to January 1974, and in Germany from February 1974 to February 1975. The Board is cognizant that Fort Ord is no longer an active U.S. military installation, and that the U.S. military installation at Wildflecken has been decommissioned and transferred to German forces. The Veteran's assertions of in-service mental health treatment are further supported by the Veteran's November 1974 discharge examination, which notes that the Veteran received mental health treatment while in service. To date, these mental health records have not been received for evidentiary review. In light of this evidence, the Board requests the AOJ to attempt to obtain these outstanding mental health service treatment records. VA treatment records To date, the electronic claims file primarily contains VA treatment records from April 2001 forward; along with a handful of VA treatment records from 1977. However, at the August 2017 Travel Board Hearing, the Veteran testified that he has been consistently treated at facilities within the VA Northern California Health Care System (for the disabilities on appeal) since 1977. This testimony is further supported by information contained within the Veteran's March 2009 VA Form 21-526, "Application for Compensation and/or Pension." As the electronic claims file contains a large gap in relevant VA treatment records, 1977 to 2001, the AOJ must undertake efforts to obtain these records and associate them with the electronic claims file for evidentiary review. Considering that many of these treatment notes pre-date VA's electronic medical records systems, appropriate searches of archived paper records must be done. Additionally, the RO is requested to obtain and associate with the Veteran's electronic claims file, any and all outstanding VA treatment records from the VA Northern California Health Care System, June 2017 to present. Social Security records At the August 2017 Travel Board hearing, the Veteran indicated for the first time that he was awarded Social Security disability benefits in 2000 as a result of a workplace injury. The Veteran's Social Security determination and the underlying medical evidence supporting that decision have not been submitted for review and consideration by the VA. As these records may provide evidence to substantiate the Veteran's claims, on remand, the AOJ should request any available Social Security disability records. 38 C.F.R. § 3.159(c)(2) (2017); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA must request potentially relevant Social Security disability records under VA's duty to assist). California Department of Corrections Records At the August 2017 Travel Board hearing, the Veteran testified that he received mental health treatment during short periods of post-service incarceration. In correspondence received in November 2017, the Veteran elaborated, explaining that he was placed in a mental health facility on three occasions from 1987 to 1988 through the California Department of Corrections. He asserts he was treated at the San Luis Obispo and Vacaville, California facilities. The Board finds that the AOJ must make a reasonable attempt to obtain these mental health incarceration records. VA examinations The Veteran was afforded a VA examination in April 2012 to assess the etiology and severity of his alleged PTSD disability. After a review of the claims file and psychological evaluation of the Veteran, the VA examiner found the Veteran's stressor of in-service personal assault was inadequate to support a diagnosis of PTSD. The VA examiner explained that "given [the Veteran's] life circumstances being beaten twice while in training does not meet the usual threshold of a significant trauma causing fear and helplessness." However, the VA examiner diagnosed the Veteran with psychosis, opining that the Veteran's "endorsement of all the criteria for PTSD may be related to his psychosis," but declined to link these symptoms to the Veteran's in-service personal assaults. The Board finds that the rationale provided by the VA examiner lacks the degree of detail necessary for a proper adjudication of this appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion that is unsupported by a coherent rationale is of no probative value); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). The additional service mental health and psychiatric records being obtained on remand may provide relevant evidence about the Veteran's psychiatric history and diagnoses. The Veteran has never been afforded a VA examination to assess the nature, onset, and etiology of his hepatitis C. It is established that the Veteran has a long history of intravenous drug use beginning during his military service, and the Veteran admits this drug use may be the source of his hepatitis C infection. See August 2009 Statement in Support of Claim. Intravenous drug use is a known risk factor for infection with the hepatitis C virus. See VA Adjudication Manual, M21-1MR, III.iv.4.H.2.e. However, as a matter of law, the Veteran cannot obtain direct service connection where a disability is the result of his abuse of illegal drugs, which is considered willful misconduct. See 38 C.F.R. §§ 3.1(n); 3.301(a) (2017). However, resolution of this claim hinges on resolution of his secondary substance abuse claim, so it will be remanded as well. Accordingly, the case is REMANDED for the following action: 1. Request all service mental health and psychiatric records pertaining to the Veteran through official channels. This request must include records from: * Fort Ord, California [which is no longer an active military installation], dated April 1972 to August 1972; * Fort Lewis, Washington, dated October 1972 to January 1974; and * The military installation at Wildflecken, Germany [which is no longer under U.S. control], dated February 1974 to February 1975. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Obtain and associate with the electronic claims file all VA treatment records from the VA Northern California Health Care System, 1977 to 2001, and June 2017 to present. Since the historical records are likely paper records, searches should be made of archived or retired records, with the results documented for the electronic claims file. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Contact the Social Security Administration and obtain records relating to the Veteran's award of Social Security disability benefits. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. With any necessary assistance from the Veteran, procure any and all records of mental health treatment that the Veteran has received from the California Department of Corrections, to include from 1987 to 1988. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. DO NOT proceed to the following instruction until efforts to obtain all the evidence identified above have been exhausted. 6. THEN, schedule the Veteran for a VA psychiatric examination before an appropriate VA examiner. The examiner is requested to review the Veteran's entire electronic claims file, including this REMAND, prior to examination. Such review must be noted in the examination report. The examiner is then requested to: (a) Opine on whether the Veteran's current acquired psychiatric diagnoses are at least as likely as not (probability of at least 50 percent) etiologically related to active duty military service, to include his credible reports of in-service personal assault. (b) Opine on whether the Veteran has experienced a current substance abuse disability at any time since his disability application was received in March 2009. (c) If so, is it at least as likely as not (probability of at least 50 percent) that the Veteran's current substance abuse disability is caused by or aggravated by any of his current acquired psychiatric disabilities? The examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 7. Then, readjudicate the claims on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs