Citation Nr: 1807898 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-07 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for depression. 4. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for stomach ulcers. 5. Entitlement to service connection for a gastrointestinal disorder, to include stomach ulcers. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Army from August 1951 to May 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and May 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that although the Veteran perfected the issue of entitlement to an initial compensable rating for service-connected frostbite residuals, in November 2016, prior to certification and transfer of the appeal to the Board, the Veteran withdrew this issue. The Board therefore does not have jurisdiction over this issue. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for depression, service connection for a gastrointestinal disorder, and service connection for a heart disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A March 2010 rating decision denied a claim of entitlement to service connection for PTSD. The Veteran did not timely appeal the denial and new and material evidence was not submitted within one year of the rating decision. 2. Evidence received since the March 2010 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD and raises a reasonable possibility of substantiating the claim. 3. A July 1982 rating decision denied a claim of entitlement to service connection for ulcers. The Veteran did not timely appeal the denial and new and material evidence was not submitted within one year of the rating decision. 4. Evidence received since the July 1982 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for ulcers and raises a reasonable possibility of substantiating the claim. 5. The evidence is evenly balanced as to whether the Veteran has PTSD that is related to service. 6. The evidence is evenly balanced as to whether the Veteran's current bilateral hearing loss is related to service. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. Evidence received since the March 2010 rating decision is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156. 3. The July 1982 rating decision denying entitlement to service connection for ulcers is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. Evidence received since the July 1982 rating decision is new and material and the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 6. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). As to a gastrointestinal disorder, in July 1982, the RO denied entitlement to service connection for "ulcers." The RO found that the Veteran had current ulcer disease and although he had submitted a statement from a doctor who stated that he had treated the Veteran for gastritis during service, the separation examination indicated there were no serious injuries, operations or diseases. Although notified of the denial by a letter dated from the same month, the Veteran did not appeal and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received since this time includes an August 2012 letter from Dr. Ortiz Valentin who concluded that the Veteran's stomach problems were related to service. As this evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim, the evidence is new and material and reopening of the claim for entitlement to service connection for stomach ulcers is therefore warranted. As to PTSD, in March 2010, the RO denied entitlement to service connection for PTSD. In denying service connection, the RO found that the weight of the evidence was against a finding that the Veteran had a diagnosis of PTSD in accordance with the DSM-IV or a nexus to service. Although notified of the denial by a letter dated from the same month, the Veteran did not appeal, and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In August 2012, the Veteran submitted a letter from Dr. Ortiz Valentin who concluded that the Veteran met the criteria for PTSD in conformity with the DSM-IV and that this diagnosis was the result of his combat experiences in service. As this evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim, the evidence is new and material and reopening of the claim for entitlement to service connection for PTSD is therefore warranted. Service Connection As the RO has already addressed the merits of the underlying claim for service connection for PTSD, there is no prejudice to the appellant in the Board doing so as well. Bernard v. Brown, 4 Vet. App. 4 Vet. App. 384, 390 (1993). In this regard, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). PTSD The Veteran in this case contends that he has PTSD which is the result of his combat service in Korea. There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in certain circumstances, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). More generally, 38 U.S.C.A. § 1154(b) provides that where a veteran has engaged in combat with the enemy, his testimony is sufficient to establish service incurrence if consistent with the circumstances of service, even in the absence of service records showing such incurrence. 38 U.S.C.A. § 1154(b) does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Similarly, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Here, the Veteran's DD-214 reflects that the Veteran has received a Korean Service Medal with two bronze stars as well as a Combat Infantry Badge. Although an April 1953 separation examination is of record and shows a normal psychiatric clinical evaluation, a June 2009 Personal Information Exchange System request response indicates that the Veteran's records were destroyed in a fire. In cases where service records are missing or presumed destroyed, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006). The Veteran consistently contends that his PTSD is the result of witnessing the death of fellow soldiers during combat. See September 2009 VA examination, November 2013 VA examination, August 2012 private evaluation. In light of the Veteran's combat medals, the overall consistency of his contentions, and the fact that except for the separation examination, his service treatment records have been destroyed, the Board finds there is sufficient evidence to establish the occurrence of the claimed in-service stressor. Significantly, most of the VA and private examiners also conclude both that the claimed stressors likely occurred and that they would support a diagnosis of PTSD. The issue in this case is essentially whether the Veteran has met the full criteria under DSM-IV for a diagnosis of PTSD. In this regard, in September 2009, a VA examiner, a psychiatrist, opined that even though the Veteran met the criteria for persistent re-experiencing the traumatic event and persistent symptoms of increased arousal, he did not meet the criteria for persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. She added that although the Veteran referred to having some traumatic experiences during his military service, he also did not meet the stressor criterion for a response which involved intense fear, hopelessness or horror. Accordingly, she concluded that he did not meet the criteria for a diagnosis of PTSD. In November 2013, however, a different VA examiner, a psychologist, noted that the Veteran had participated in combat during service and therefore the claimed stressor was adequate to support a diagnosis of PTSD because the Veteran experienced an event involving actual or threatened death and his response involved intense fear or helplessness or horror. While he also found that the Veteran met the criteria for persistent re-experiencing of the traumatic event, he concluded that he did not meet the criteria for persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, or the criteria for persistent symptoms of increased arousal. The examiner thus concluded that the Veteran did not meet the full criteria for a current diagnosis of PTSD, and further opined that the claimed disorder was not related to service because service treatment records were negative for any mental health referrals, complaints or diagnoses. In support of his claim, the Veteran offers opinions from two private doctors. First, he refers to July 2009 and January 2010 mental health evaluations from Dr. Sotomayor which show diagnoses of PTSD. Although Dr. Sotomayor does not specifically elaborate as to how the Veteran met each of the criteria for such a diagnosis, it is clear that both diagnoses of PTSD appearing in each record were made following an extensive evaluation of the Veteran's mental health. Moreover, as a psychiatrist Dr. Sotomayor is presumed to know what criteria are required to render such a diagnosis even if he did not specifically articulate that. In August 2012, the Veteran also submitted a letter from Dr. Ortiz Valentin, an M.D., who specifically concludes that the Veteran meets the criteria for a diagnosis of PTSD in accordance with the DSM-IV and opines that it is the result of his in-service combat experiences. While Dr. Ortiz Valentin also does not specifically articulate how his symptoms meet each criterion, she observes that he presented with sleep problems, nightmares and flashbacks of traumatic incidents he had at war, nervousness and hypervigilance, intolerance of loud noises and crowded places, attempts to avoid recollection of the event and circumstances that evoke recall, anxiousness and hyperarousal, and recurring intrusive thoughts of traumatic experiences. Although it does not appear that she had access to the claims file, she accurately recounts the Veteran's relevant medical history. Based on the above, the Board finds that there is sufficient evidence to find that the Veteran has met the criteria for a diagnosis of PTSD. Although Dr. Sotomayor and Dr. Ortiz Valentin did not specifically articulate each element of the criteria for a diagnosis of PTSD, both are competent to render such a diagnosis. Moreover, although both VA examiners agreed that the Veteran did not meet the full DSM-IV criteria for a diagnosis of PTSD, they were in disagreement as to which elements he did not meet. While the September 2009 examiner concluded that the Veteran did not meet the stressor criterion for a response involving intense fear, hopelessness or horror, the November 2013 examiner found that he did; although the November 2013 examiner found that the Veteran did not meet the criteria for persistent symptoms of increased arousal, the September 2009 examiner found that he did; both agreed that he met the criteria for persistent re-experiencing of the traumatic event. Although both also agreed that he did not meet the criteria for persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, the Board finds that such general disagreement by medical professionals as to which of the basic elements of PTSD the Veteran met or did not meet tends to undermine the overall conclusion that he does not have a diagnosis of PTSD. In sum, therefore, and with reasonable doubt resolved in favor of the Veteran, the Board finds that the Veteran has met the criteria for a current diagnosis of PTSD. As to whether there is a link between the Veteran's current PTSD and the in-service stressor, there is essentially one opinion in favor and one against. Although it does not appear that Dr. Ortiz Valentin reviewed the claims file, there is no indication that her understanding or recitation of the Veteran's relevant medical history was inaccurate. While the November 2013 VA examiner indicated that he reviewed the claims file, in concluding that the condition was unrelated to service, he appeared to weigh heavily the lack of evidence of in-service mental health referrals, complaints or diagnoses. As noted above, although there is a copy of the Veteran's separation examination, the remainder of his service treatment records were destroyed in a fire and have not been recovered. As the examiner did not appear to take this into consideration in rendering his opinion, the Board finds that it tends to undermine the weight of his opinion. In sum, therefore, both opinions are entitled to approximately the same probative value. As such, the Board finds that, overall, the evidence is approximately evenly balanced as to whether the Veteran's current PTSD is related to service. The Veteran is therefore entitled to the benefit of the doubt. 38 U.S.C.A. § 5107. Hearing Loss The Veteran also contends that his bilateral hearing loss is the result of service, specifically exposure to firearms and other loud weapons. Although the Veteran's separation examination showed 15/15 whispered voice testing bilaterally, no audiological testing was conducted. As noted above, given the Veteran's combat service, the Board finds it likely that he had in-service noise exposure. In addition, a June 2013 VA audiological examination shows that the auditory thresholds in both of the ears have met the criteria for a current disability. See 38 C.F.R. § 3.385. He has therefore met the current disability requirement. The dispositive issue is thus whether this hearing loss is related to service. There are two opinions on this matter. In August 2012, Dr. Ortiz Valentin opined that it was at least as likely as not that his current hearing loss was the result of his in-service noise exposure. She noted that he was exposed to high frequency firearm noise during service and that it is known that prolonged exposure of noises of high intensity causes permanent damage to the inner structures of the ear, which results in irreversible hearing loss. In June 2013, a VA examiner opined that it was less likely as not that the Veteran's hearing loss was caused by service. Although she acknowledged that the whispered voice test is not a reliable test to rule out the presence of frequency-specific hearing loss such as typically found with military noise exposure, she found that it excluded the presence of a significant hearing deficit affecting communication. She also observed that the claims folder, including the service treatment records, was negative for complaints or treatment for hearing loss until December 2012 when audiological testing revealed hearing loss but she further noted that retroactive hearing loss is not medically established. As above, the Board finds that the weight of these opinions is in relative equipoise. Although it does not appear that Dr. Ortiz Valentin reviewed the claims file, there is no indication that her understanding or recitation of the Veteran's relevant medical history was inaccurate. While the June 2013 VA examiner acknowledged the unreliability of the whispered voice tests, she nonetheless appeared to give weight to that finding in concluding that he had suffered no in-service hearing loss. Moreover, she also appeared to give substantial weight to the lack of in-service complaints or treatment for hearing loss without considering the fact that most of the Veteran's service treatment records were destroyed in a fire. Although it is true that there is no audiological evidence of hearing loss until 2012, there are also no audiological findings showing that the Veteran had normal hearing prior to that time. In sum, therefore, the Board finds that both opinions are entitled to approximately the same probative value. As such, the Board finds that, overall, the evidence is approximately evenly balanced as to whether the Veteran's current hearing loss is related to service. The Veteran is therefore entitled to the benefit of the doubt. 38 U.S.C.A. § 5107. ORDER The application to reopen the claim of entitlement to service connection for PTSD is granted. The application to reopen the claim of entitlement to service connection for ulcers is granted. Entitlement to service connection for PTSD is granted. Entitlement to service connection for bilateral hearing loss is granted. REMAND As discussed above, where, as here, service records are missing or presumed destroyed, in addition to the Board's heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule, VA also has a heightened duty to assist the veteran with the development of evidence in support of his claim. In this regard, in a previous August 1980 claim, the Veteran indicated that he had received treatment for a nervous condition at the VA Hospital at Kingsbridge in the Bronx, New York from 1953 to 1954. As it does not appear that any attempts were made to obtain these records, this should be accomplished on remand. Moreover, in an April 2014 application for individual unemployability, the Veteran reported that he was in receipt of Social Security Administration disability benefits. Although a June 2009 inquiry to the Social Security Administration indicated that any such records had been destroyed, in the April 2014 application, the Veteran did not indicate when he first began receiving these benefits. To the extent there are any outstanding records from this agency, these should be obtained. In addition, a January 1982 letter from La Guardia Medical Group states that they were in possession of medical records for the Veteran but could not release them to the Veteran because it was not their policy to release medical records to patients. To the extent this medical facility is still in possession of relevant records and has changed their policy regarding who they will release them to, the Veteran should be offered another opportunity to obtain these records. As to the claim for a gastrointestinal disorder, although a June 2013 VA examiner offered a negative nexus opinion, the rationale underlying that opinion relied in large part on the lack of in-service complaints or treatment for gastrointestinal problems without acknowledging that most of the Veteran's service treatment records have been destroyed. As to a heart disorder, although an April 2014 examiner concluded that the Veteran's service-connected frostbite residuals had not caused coronary artery disease (as the Veteran has claimed), the examiner did not address whether frostbite residuals may have aggravated any current heart disorder, nor did the examiner address whether any current heart disorder was directly incurred in service. Accordingly, the Board finds that addendum opinions are required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send to the Veteran and his representative a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any relevant private medical records, including any treatment from La Guardia Medical Group. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. Obtain any outstanding VA treatment records, to include records from the VA Medical Center in the Bronx, New York from 1953 to 1954. 3. Contact the Social Security Administration and obtain all records associated with any claim for disability benefits. 4. After completing the above development, forward the entire claims file to the VA examiners who prepared the June 2013 opinion regarding a gastrointestinal disorder and the April 2014 opinion regarding a heart disorder, or, if either examiner is unavailable, to another suitably qualified VA examiner. The claims file should be reviewed by the examiners. If examination is indicated, it should be scheduled in accordance with applicable procedures. (a) Regarding a gastrointestinal disorder, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that any current gastrointestinal disorder is related to or had its onset during the Veteran's period of active duty service. In answering this question, the examiner must acknowledge that with the exception of the separation examination, the Veteran's service treatment records are presumed destroyed and thus are not available for review. (b) Regarding a heart disorder, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that any current cardiovascular disorder is related to or had its onset during the Veteran's period of active duty service. In answering this question, the examiner must acknowledge that with the exception of the separation examination, the Veteran's service treatment records are presumed destroyed and thus are not available for review. The examiner should also indicate whether it is at least as likely as not (50 percent probability or more) that any current cardiovascular disorder was caused or aggravated by service-connected frostbite residuals. The examiner is advised that aggravation is defined as any worsening of a nonservice-connected disability by a service-connected disability. Permanent worsening need not be shown. A complete rationale should accompany any opinion provided. 5. After completion of the above, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the statement of the case, and provided an opportunity to respond. The appellant 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs