Citation Nr: 1821887 Decision Date: 04/09/18 Archive Date: 04/19/18 DOCKET NO. 11-15 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to a rating in excess of 10 percent for residuals of a stress fracture of the left proximal tibia. 4. Entitlement to an effective date earlier than December 16, 2008 for the increased rating for residuals of a stress fracture of the left proximal tibia. 5. Whether new and material evidence has been received to reopen a claim for service connection for hepatitis C. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, D. G., D. C., and K. S. ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to June 1971. These matters are before the Board of Veterans Appeals (Board) on appeal from April 2010, July 2010, and May 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the case in December 2015 to afford the Veteran a Travel Board hearing. In a September 2010 notice of disagreement to the April 2010 rating decision, the Veteran's former representative contended that the Veteran had pursued his claim for compensation for the left tibia disability since the effective date of service connection on June 10, 1971 and that an increased rating is warranted since that date or at least May 19, 2006, the date of a claim for an increased rating. Although the RO characterized the claim for an effective date earlier than December 16, 2009, the effective date for an increase in disability compensation for a service-connected disability may be the date of a factually ascertainable increase in disability if it occurred within one year of the date of receipt of a claim for an increased rating. 38 C.F.R. § 3.400 (o)(2) (2017). Therefore, the Board recharacterized the claim for an increased rating as prior to December 16, 2008 and will separately address entitlement to a rating in excess of 10 percent after that date. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in December 2017. A copy of the hearing transcript has been associated with the claims file. There has been substantial compliance with the remand directives, and the matters are again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for an acquired psychiatric disorder, a rating in excess of 10 percent for residuals of a stress fracture of the left proximal tibia, and entitlement to a total disability rating based on individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The February 2, 2008 rating decision confirmed and continued the previous denial of service connection for depression and nervous condition. The Veteran did not file a timely substantive appeal or submit new and material evidence within one year. This decision is final. 2. Additional evidence received since the February 2008 denial is neither cumulative nor redundant and relates to an unestablished fact necessary to substantiate the claim. 3. In July 1971, the RO granted service connection for fracture of the left tibia and assigned a noncompensable rating, effective from June 10, 1971, the day following discharge from service. The Veteran did not express disagreement or submit new and material evidence within one year and the decision is final. 4. In response to a May 25, 2007 claim for an increased rating for the left tibia disability, the RO continued a noncompensable evaluation in an October 23, 2007 rating decision; the Veteran expressed timely disagreement in February 2008 but did not perfect a timely appeal, and the decision is final. 5. An April 2010 rating decision granted a 10 percent rating for residuals of stress fracture of the left proximal third tibia. It assigned an effective date of December 16, 2009, the date of receipt of the Veteran's claim for an increased evaluation. 6. At the December 2017 hearing, the Veteran through his representative informed the Board that he wished to withdraw his appeal related to whether new and material evidence had been received to reopen his claim for service connection for hepatitis C. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The claim for an effective date prior to December 16, 2008 for an increased evaluation for residuals of stress fracture, left proximal tibia is dismissed. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. §§ 20.200 , 20.201; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of whether new and material evidence has been received to reopen service connection for hepatitis C have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Finality of Claim for Service Connection for an Acquired Psychiatric Disorder Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 38 CFR 20.302. A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. 38 C.F.R. § § 20.202 Rule 202. If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108 (a). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed a claim for service connection for a nervous condition and depression received by the RO on July 14, 2006. An October 23, 2007 rating decision denied service connection for depression and nervous condition. This implicit denial was for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The RO found that there was no evidence of depression or nervous condition in service. Private and VA treatment records did not show major depression disorder as related to service. A subsequent February 2, 2008 rating decision confirmed and continued the denial of service connection for depression and nervous condition. The RO did not expressly reopen the claim for service connection for depression and nervous condition was considered "reopened." However, the evidence continued to show that the condition was not incurred in or aggravated by service. At the time of this denial, the evidence of record included additional VA treatment records from the VA Medical Center (VAMC) in Houston Texas. The RO found that there was no link between the Veteran's depression and nervous condition and service. The record shows that the Veteran filed a Notice of Disagreement (NOD) regarding this issue dated February 13, 2008 and received on February 21, 2008. The NOD discusses his mental health history and subsequent treatment, including some narrative and lay argument. The Veteran was sent a Statement of the Case (SOC) dated July 18, 2008. The Veteran was informed of the decision and of the right to appeal. He did not file a timely Substantive Appeal. See 38 C.F.R. § 20.200. The February 2, 2008 rating decision became final. 38 C.F.R. § 3.156. On December 16, 2009, VA received a new claim to reopen the previous denial for a psychiatric disorder that he identified as a "Personality Disorder With Major Depressive Disorder." In July 2010, the RO declined to reopen the claim finding that evidence received since the last final denial in February 2008 was not new and material. The Veteran filed a subsequent Notice of Disagreement dated September 18, 2010 and received on September 22, 2010. The Veteran contended that he experienced manifestations of depression during and immediately after service, attempted suicide on at least one occasion, and was treated at VA facilities from 1971 to 1975 but contended that no request for these records was made by VA. The RO obtained additional VA treatment records from 1975-76 and from 1993 to 2011. In a June 2011 statement of the case, the RO found that the evidence was new but not material because it did not address in-service incurrence of a mental health disability. The Veteran and several witnesses have since testified at a December 2017 hearing regarding his humiliation in service and how they noticed an immediate change in his behavior. They reported that his drill sergeant harassed him and called him out in front of all the men. The Veteran was described as the "broken soldier of the platoon." Three witnesses testified that when the Veteran left the Army, they saw a dramatic change in his mental health. One witness reported "When he came out of the Army it was like traumatic changes." They testified that he was homeless at times, and he made several suicide attempts. This showing of disability potentially due to disease or injury in service relates to an evidentiary defect from his previous rating decisions. Resolving reasonable doubt in favor of the Veteran, the Board finds that the December 2017 testimony is presumed credible and describes manifestations of a mental health disability in and immediately after service. At the time of the prior final denial, the Veteran lacked a nexus to service. He had not yet testified at a hearing. Witnesses had not yet testified regarding their impressions of his humiliation during service and changes in behavior immediately following discharge. Applying the benefit of the doubt doctrine, and acknowledging the low bar for reopening, the Board finds that new and material evidence has been received. See Shade v. Shinseki, 24 Vet. App. 110 (2010); 38 C.F.R. § 3.102. The claim for service connection for an acquired psychiatric disorder is reopened. III. Withdrawn Appeal Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b)(1). The Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). At the December 2017 hearing, the Veteran and his representative indicated that they wished to withdraw the issue of whether new and material evidence has been received to reopen his claim for service connection for hepatitis C. Accordingly, the Board does not have jurisdiction to review this particular issue on appeal, and it is dismissed. IV. Entitlement to an Effective Date Earlier than December 16, 2008, for an Increased Evaluation for Residuals of Stress Fracture, Left Proximal Tibia. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a)(1). However, the effective date for an increase in disability compensation for a service-connected disability may be the date of a factually ascertainable increase in disability if it occurred within one year of the date of receipt of a claim for an increased rating. 38 C.F.R. § 3.400 (o)(2) (2017). An April 2010 rating decision assigned an effective date of December 16, 2009, which was the date of the Veteran's claim for increase. After VA sent the Veteran's statement of the case (SOC) on July 22, 2008, he had one year from the date of notification of the rating decision with which he disagreed. The rating decision was dated October 23, 2007. The date of notification was October 25, 2007. Specifically, the Veteran had until October 25, 2008 to finalize his appeal regarding this issue by submitting a VA Form 9 appealing the case to the Board. The appeal could also have been ongoing if the Veteran had attended a series of scheduled hearings. However, the Veteran cancelled the hearings, so there was no basis to assign benefits earlier than the date of his new claim which was one year prior to December 16, 2009 or December 16, 2008. 38 U.S.C. § 5110 (a)(1); 38 C.F.R. § 3.400. The Board's inquiry in this case into the proper effective date begins with the question of whether there is a valid basis in the first instance to bring an earlier effective date claim. In this regard, the U.S. Court of Appeals for Veterans Claims (Court) in its decision in Rudd v. Nicholson, 20 Vet. App. 296 (2006) addressed the matter of the adjudication of claims for an earlier effective date for a VA benefit, where there is of record a prior final RO decision which considered and decided a claim for that identical benefit. In Rudd, the Court held that where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final RO rating decision, absent an attempt to vitiate the finality of that decision through an allegation of clear and unmistakable error in the decision, the claimant has merely raised a "freestanding" claim that cannot remove the finality of the decision which assigned the previous effective date. The earlier prior decision was final and there was no objective evidence of worsened disability due to his stress fracture of the left proximal tibia prior to one year prior to the date of his claim for increase, which was December 16, 2008. In the instant case, the Rudd decision precludes the Veteran from raising a "freestanding" earlier effective date claim regarding a now final RO rating decision. Here, the Veteran has not specifically alleged clear and unmistakable error in a rating decision. The Board finds that it is unable to grant an earlier effective date for the Veteran's increased evaluation for residuals of stress fracture, left proximal tibia because the decision is final. There has not been an allegation of clear and unmistakable error. Based upon the governing law regarding the assignment of effective dates, the Board is constrained to find that the Veteran's claim for an earlier effective date is precluded as a matter of law and must be dismissed. In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The application to reopen the previously denied claim for service connection for an acquired psychiatric disorder is granted. The claim for entitlement to an effective date earlier than December 16, 2008 for the increased rating for residuals of a stress fracture of the left proximal tibia is dismissed. The appeal on the issue of whether new and material evidence has been received to reopen service connection for hepatitis C is dismissed. REMAND A remand is necessary for additional development. A. Acquired Psychiatric Disorder The Veteran's March 1971 separation examination disclosed a clinically normal psychiatric evaluation. The Veteran denied nervous trouble of any sort. Service Treatment Records (STRs) show a notation that he was referred for being under weight. Ongoing VA and private treatment records show impressions of depression and reports of a history of depression and suicide attempts. See e.g. Appellate Brief, Part II. Additional evidence submitted in 2017 shows that on April 27, 2005, the Veteran reported that he was having depression at age 19 when discharged from the Army. This is consistent with other lay statements submitted in support of his claim. The Veteran was previously afforded a July 2009 VA examination. The examiner did not have access to the claims file but interviewed the Veteran and considered the recent psychological testing. The VA examiner found that "the Veteran's personality pathology is primary responsible for his unstable functioning in his occupational and social life." The VA examiner went on to conclude, "The personality disorder and substance abuse patterns have predisposed him to episodes of major depression. These depressive episodes do appear to be legitimate and genuine, and likely contribute to the Veteran's difficulties in occupational functioning..." Despite impressions of both a personality disorder and depressive disorder, there is not a complete etiology opinion and the December 2017 hearing testimony regarding the Veteran's reported humiliation in service and change in behavior after service was not available for consideration. The VA examination does not fully address whether the Veteran's depressive disorder was caused by the reported events in and immediately after service. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such the Board finds that a supplemental VA examination is warranted. Evidence in the claims file to be considered includes the Veteran's testimony regarding a possible link to service and observed behavioral changes immediately after discharge. In addition, the entire claims file should be made available to the VA examiner for review. B. Residuals of a Stress Fracture of the Left Proximal Tibia A March 2010 VA examination showed that the Veteran had weakness, stiffness, swelling, and instability in his knees and ankles. A physical examination revealed tenderness, painful motion, and weakness of the left knee. The Veteran reported that his ability to stand or walk was limited to less than 15 minutes. The Veteran submitted a statement dated May 25, 2011 indicating that he had recently had an MRI performed on his left leg. He also noted that his pain medication had been increased due to the worsening of his condition. The record shows that the Veteran failed to report for a VA examination scheduled at the Dallas VAMC on January 14, 2013. However, the record also shows that he was incarcerated from July 21, 2011 through May 25, 2017. This would constitute good cause for failing to report for the VA examination. See 38 C.F.R. § 3.655. At the December 2017 hearing, the Veteran testified that he was on the maximum dosage of pain pills until he got cancer. He was then put on morphine. He testified that the pain pills were because the residuals were still there. This pain makes it unstable for him to move. He reported that he now has a hospital bed, and did not walk except around the house due to his leg disability. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's residuals of a stress fracture of the left proximal tibia. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). C. TDIU Regarding the claim for a TDIU, consideration of entitlement to TDIU is dependent upon the impact of service-connected disabilities on a Veteran's ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the currently open claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Determine whether VA has requested all VA records identified by the Veteran as having provided mental health treatment from the date of discharge from service in 1971 to the date of records already obtained in 1976. If there Veteran identifies other evidence, obtain updated copies of the Veteran's VA and any new private treatment records, and associate them with the claims folder. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of a stress fracture of the left proximal tibia. The claims file should be made available to the VA examiner. A complete rationale should accompany any opinion provided. The VA examiner should also note any functional impact the Veteran's residuals of a stress fracture of the left proximal tibia disability has on his daily life and employment. 3. Then, schedule the Veteran for a VA psychiatric examination with a medical professional of sufficient expertise to determine the nature and severity of the Veteran's acquired psychiatric disorder, previously diagnosed as depression. The entire claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a. Identify all current acquired psychiatric disorders under DSM-5 criteria (the appeal was certified to the Board in November 2014 after the transition to DSM-5). b. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's acquired psychiatric disorder first manifested in service or was caused or aggravated by events in active service? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran's December 2017 hearing testimony, as well as his Appellate Brief and the lay statements submitted in 2017 in support of his claim. The term "as likely as not" (at least fifty percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. If, the Veteran's percentage ratings do not meet the requirements for a TDIU under 38 C.F.R. § 4.16 (a), refer the case to VA's Director of Compensation & Pension for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b). 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims for service connection for an acquired psychiatric disorder, for a rating in excess of 10 percent for the left tibia disorder from December 16, 2008, and for a TDIU based on the entirety of the evidence. If the claims remain denied, issue the Veteran and his representative a SSOC. An appropriate period of time should be allowed for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs