Citation Nr: 1829652	
Decision Date: 07/03/18    Archive Date: 07/24/18

DOCKET NO.  14-31 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim for compensation for neck disability under 38 U.S.C. § 1151.

2. Entitlement to compensation for neck disability under 38 U.S.C. § 1151.

3. Whether new and material evidence has been received to reopen a claim for compensation for right shoulder disability under 38 U.S.C. § 1151.

4. Entitlement to compensation for right shoulder disability under 38 U.S.C. § 1151.

5. Whether new and material evidence has been received to reopen a claim for compensation for right knee disability under 38 U.S.C. § 1151.

6. Entitlement to compensation for right knee disability under 38 U.S.C. § 1151.

7. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

8. Entitlement to service connection for low back disability.

9. Entitlement to service connection for right hand disability.

10. Entitlement to vocational rehabilitation and training.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from July 1979 to July 1983, and from November 1986 to January 1992. The character of discharge from the 1986 to 1992 period of service is a bar to VA benefits. Therefore, no compensation based on that service period is permitted.

These matters come before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran raised and appealed different claims at different times, and actions on the claims have occurred at different times. In June 2017, he had a Board videoconference hearing before a Veterans Law Judge (VLJ). Some of his appealed issues were discussed in that hearing. In January 2018, he had a Board videoconference hearing before a different VLJ, the undersigned. Other appealed issues, specifically, the issues listed above, were discussed in that second hearing. Transcripts of both hearings are of record.

In January 2018, the VLJ who presided over the 2017 Board hearing issued a decision and remand addressing issues from both the 2017 and 2018 Board hearings.


ORDER TO VACATE

When the deciding VLJ addressed in the January 2018 decision and remand issues addressed at both the 2017 and 2018 Board hearings, the Veteran did not receive review of the issues discussed at the 2018 hearing by the VLJ who presided over that hearing. The Board may vacate an appellate decision at any time upon request to the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law, or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). The Veteran did not receive due process of law when the 2018 hearing issues were addressed without review by the VLJ who heard his testimony on those issues. The Board therefore is vacating the part of the January 2018 Board decision and remand that addressed those issues, specifically: the requests to reopen previously denied claims for compensation under 38 U.S.C. § 1151 for disabilities of the neck, right shoulder, and right knee; entitlement to compensation under 38 U.S.C. § 1151 for disabilities of the neck, right shoulder, and right knee; entitlement to service connection for psychiatric disability including PTSD, and for disabilities of the low back and right hand; and entitlement to vocational rehabilitation and training.

Having vacated that portion of the January 2018 Board decision and remand, the Board will again review the vacated issues, affording review by the VLJ who heard testimony on those issues.

Of the vacated issues that the Board is reviewing, the issues of compensation under 38 U. S.C. § 1151 for disabilities of the neck, right shoulder, and right knee, service connection for psychiatric disorder including PTSD, service connection for disabilities of the low back and right hand, and entitlement to vocational rehabilitation and training, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The January 2018 Board decision and remand addressed some issues that were not reviewed by the VLJ who hear the Veteran's hearing testimony on those issues; specifically, the issues reopening of previously denied claims for compensation under 38 U.S.C. § 1151 for disabilities of the cervical spine, right shoulder, and right knee, entitlement to compensation under 38 U.S.C. § 1151 for disabilities of the neck, right shoulder, and right knee, entitlement to service connection for psychiatric disability including PTSD, and for disabilities of the low back and right hand, and entitlement to vocational rehabilitation and training.

2. The Veteran did not file a notice of disagreement (NOD) with the denial in a June 2010 rating decision of compensation under 38 U.S.C. § 1151 for neck disability.

3. Evidence received since the June 2010 rating decision addresses the questions of neck disability after a 2009 treadmill test at a VA facility, and of fault by VA in ordering and performing that test.

4. The Veteran did not file an NOD with the denial in a June 2010 rating decision of compensation under 38 U.S.C. § 1151 for right shoulder disability.

5. Evidence received since the June 2010 rating decision addresses the questions of new or increased right shoulder disability after the 2009 VA treadmill test, and of fault by VA in ordering and performing that test.

6. The Veteran did not file an NOD with the denial in a June 2010 rating decision of compensation under 38 U.S.C. § 1151 for right knee disability.

7. Evidence received since the June 2010 rating decision addresses the questions of new or increased right knee disability after the 2009 VA treadmill test, and of fault by VA in ordering and performing that test.


CONCLUSIONS OF LAW

1. As the Veteran was denied due process of law, the Board vacates the part of the January 2018 Board decision and remand that addressed reopening of previously denied claims for compensation under 38 U.S.C. § 1151 for disabilities of the neck, right shoulder, and right knee, entitlement to compensation under 38 U.S.C. § 1151 for disabilities of the cervical spine, right shoulder, and right knee, entitlement to service connection for psychiatric disability including PTSD, and for disabilities of the low back and right hand, and entitlement to vocational rehabilitation and training. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017).

2. The denial in the June 2010 rating decision of compensation under 38 U.S.C. § 1151 for neck disability is a final decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.156 (2017).

3. Evidence received since the June 2010 rating decision is new and material to the claim for compensation under 38 U.S.C. § 1151 for neck disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156.

4. The denial in the June 2010 rating decision of compensation under 38 U.S.C. § 1151 for right shoulder disability is a final decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156.
5. Evidence received since the June 2010 rating decision is new and material to the claim for compensation under 38 U.S.C. § 1151 for right shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

6. The denial in the June 2010 rating decision of compensation under 38 U.S.C. § 1151 for right knee disability is a final decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156.

7. Evidence received since the June 2010 rating decision is new and material to the claim for compensation under 38 U.S.C. § 1151 for right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neck Disability

The Veteran contends that disability of his neck was caused or aggravated by injuries sustained in VA medical testing, specifically, a treadmill stress test in July 2009. In August 2009 he sought compensation under 38 U.S.C. § 1151 for disorders of the neck, right shoulder, and right knee.

Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct. When additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; see also 38 C.F.R. § 3.361. 

In a June 2010 rating decision, the RO denied compensation under 38 U.S.C.A. § 1151 for neck disability. A rating decision becomes final when a claimant does not file an NOD within one year after a decision is issued. 38 U.S.C. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C. § 7105. The Veteran filed NODs addressing some of the issues addressed in the June 2010 rating decision, he did not file a timely NOD addressing compensation under 38 U.S.C.A. § 1151 for neck disability. Therefore that rating decision became final with regard to that issue.

In September 2013, the Veteran again sought compensation under 38 U.S.C.A. § 1151 for neck disability. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C. §§ 5108, 7104(b). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c).

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 evidence in the file in June 2010 includes claim and statements from the Veteran, and some VA medical records. A July 2009 report of contact reflects the Veteran's report that, during a July 2009 treadmill test, his knee gave way, and afterward he experienced severe neck pain.

The evidence added since June 2010 includes additional medical records and more recent statements from the Veteran. In May 2014, imaging performed at a private facility showed mild to moderate degenerative disc disease in the Veteran's cervical spine. In a March 2015 statement, the Veteran asserted that in 2009 VA clinicians should have ordered a different type of test instead of the treadmill test. In the January 2018 Board hearing, he provided additional details about how he sustained injuries in the treadmill test, and further explained his view that VA clinicians made a poor choice in having him take a treadmill test.

Some of the evidence added since the June 2010 decision addresses the question of the existence of neck disorder after the 2009 treadmill test, and the question of fault by VA in ordering and continuing that test. Some of the added evidence is both new and material to the Section 1151 neck disorder claim. The Board therefore grants reopening of that claim.

Having reopened the claim, the Board must consider the claim on its merits. As explained in the remand section, below, the Board finds that additional evidence is needed regarding the reopened claim.

Right Shoulder Disability

The Veteran contends that disability of his right shoulder was caused or aggravated by injuries sustained in the July 2009 treadmill test. In the June 2010 rating decision, the RO denied compensation under 38 U.S.C.A. § 1151 for right shoulder disability. The Veteran did not file a timely NOD addressing compensation under 38 U.S.C.A. § 1151 for right shoulder disability. Therefore that rating decision became final with regard to that issue.

Before the June 2010 rating decision, the Veteran reported, in July 2009, that during the treadmill test his knee gave way and afterward he experienced severe shoulder pain. Since the June 2010 rating decision, the Veteran has provided additional information as to his injuries from the treadmill test, and explanation of his view of the faults involved in ordering and carrying out the test. Some of the evidence addresses the question of new or increased right shoulder disability resulting from the test and from VA fault. Some of the added evidence is both new and material to the Section 1151 right shoulder disorder claim. The Board therefore grants reopening of that claim.

Having reopened the claim, the Board must consider the claim on its merits. As explained in the remand section, below, the Board finds that additional evidence is needed regarding the reopened claim.

Right Knee Disability

The Veteran contends that disability of his right knee was caused or aggravated by injuries sustained in the July 2009 treadmill test. In the June 2010 rating decision, the RO denied compensation under 38 U.S.C.A. § 1151 for right knee disability. The Veteran did not file a timely NOD addressing compensation under 38 U.S.C.A. § 1151 for right knee disability. Therefore that rating decision became final with regard to that issue.

Before the June 2010 rating decision, the Veteran reported, in July 2009, that during the treadmill test his knee gave way. Since the June 2010 rating decision, the Veteran has provided additional information as to his injuries from the treadmill test, and explanation of his view of the faults involved in ordering and carrying out the test. Some of the evidence addresses the question of new or increased right knee disability resulting from the test and from VA fault. Some of the added evidence is both new and material to the Section 1151 right knee disorder claim. The Board therefore grants reopening of that claim.

Having reopened the claim, the Board must consider the claim on its merits. As explained in the remand section, below, the Board finds that additional evidence is needed regarding the reopened claim.



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ORDER

Part of the January 2018 Board decision and remand is vacated; specifically, the part that addressed reopening of previously denied claims for compensation under 38 U.S.C. § 1151 for disabilities of the neck, right shoulder, and right knee, entitlement to compensation under 38 U.S.C. § 1151 for disabilities of the neck, right shoulder, and right knee, entitlement to service connection for psychiatric disability including PTSD, and for disabilities of the low back and right hand, and entitlement to vocational rehabilitation and training.

A claim for compensation under 38 U.S.C. § 1151 for neck disability is reopened.

A claim for compensation under 38 U.S.C. § 1151 for right shoulder disability is reopened.

A claim for compensation under 38 U.S.C. § 1151 for right knee disability is reopened.


REMAND

The Board is remanding to the AOJ for additional action the issues of compensation under 38 U.S.C. § 1151 for disabilities of the neck, right shoulder, and right knee, service connection for psychiatric disorder including PTSD and for disabilities of the low back and right hand, and entitlement to vocational rehabilitation and training.

The Veteran contends that after a 2009 VA treadmill test he had new or increased problems in his neck, right shoulder, and right knee. He contends that VA clinicians should not have ordered a treadmill test for him, and should have taken different actions when problems arose during that test. The evidence in the claims file leaves questions as to whether the treadmill test was followed by new and worsened neck, right shoulder, and right knee problems. That evidence does not contain medical findings or opinions as to whether any additional neck, right shoulder, or right knee disability was proximately caused by fault on the part of VA. The Board is remanding the issue for a VA physician to review the file and provide opinions addressing those questions.

The Veteran contends that he has PTSD as a result of traumatic experiences during his 1979 to 1983 service period. The stressors he has reported include: being assaulted in 1983 and sustaining dental, face, and head injuries; witnessing a serviceman being swept overboard to his death; having fellow servicemen threaten to throw him overboard. Service records contain corroboration that in September 1981 a serviceman on the Veteran's vessel was lost overboard and died, and that in May 1983 the Veteran was assaulted and knocked unconscious. The Board is remanding the issue for the opinion of a mental health professional as to whether the Veteran's current symptoms of PTSD or other psychiatric disorder are linked to any of the corroborated stressors. In addition, it is not clear that his complete service personnel records are associated with the claims file. On remand, an attempt should be made to obtain any outstanding personnel records. Any more recent VA treatment records also should be obtained.

The Veteran contends that he has low back disability as a result of injuries during his 1979 to 1983 service period. He has noted that during that period he played football, and sustained injuries including back injuries. His service treatment records reflect that he has seen in December 1979 for a sore on his back following an injury. At separation from that service period, however, he marked no for history of recurrent back pain. Current low back arthritis has been shown on x-rays. The Board is remanding the issue for a VA medical examination with file review and opinion as to the likelihood that current low back disability is related to injury during the earlier service period.

The Veteran contends that he has right hand disability as a result of a football injury in October 1980, which was during his earlier service period. VA clinicians who examined him in February 2015 and June 2015 provided opinions regarding the likely etiology of current right hand disability. Neither examiner, however, considered whether the type of injury to the hand in 1980 resulted in the arthritis in the hand noted on x-rays in 2015. The Board is remanding the case for a new examination with file review and opinion addressing the likely etiology of the current disorder.

The Veteran contends that he is able to hold employment that is not physically demanding, and that he should receive VA vocational rehabilitation and training. In January 2011, the United States Social Security Administration (SSA) concluded that he was unable to hold employment that is available in the economy, but that later reevaluation was warranted. In September 2014, SSA concluded that his disabilities did not preclude him from working. In the January 2018 Board hearing, the Veteran again asserted that with vocational rehabilitation and training he could hold employment that is not physically demanding. The Board is remanding the issue for a new evaluation as to whether vocational rehabilitation and training can enable him to hold employment. Because other examinations and reviews ordered in the present remand are likely to add information about his current capacities, the new evaluation should be performed after those actions.

Accordingly, the case is REMANDED for the following action:

1. Obtain the Veteran's entire service personnel record, including the records from his periods of active service from July 1979 to July 1983 and from November 1986 to January 1992.

2. Obtain records of VA medical and mental health treatment of the Veteran from January 2015 through the present. 

3. Provide the Veteran's claims file to a VA physician for review. Ask the physician to review the file and provide findings and opinions regarding a treadmill stress test the Veteran had at a VA facility in July 2009, and any current disorders affecting his neck, right shoulder, or right knee as follows:

A. Provide diagnoses for any disorders that affected the Veteran's neck, right shoulder, or right knee before the July 2009 treadmill test.

B. Did the treadmill test result in onset or increase of any disorder of the neck, right shoulder, or right knee?

C. If the treadmill test resulted in onset or increase of any disorder of the neck, right shoulder, or right knee, was the onset or increase caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in having him take a treadmill test or in actions taken or not taken during the test?

D. Did any onset or increase of a disorder of the neck, right shoulder, or right knee with the treadmill test result from an event that was not reasonably foreseeable?

Ask the physician to provide clear explanations of the conclusions and opinions.

4. Schedule the Veteran for a VA mental disorders examination to address the nature and likely etiology of current PTSD or other psychiatric disorders. Provide his claims file to the examiner for review. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to provide clear and thorough explanation of all findings and opinions.

Ask the examiner to provide diagnoses for all current psychiatric disorders, and to specifically state whether the Veteran's symptoms meet the diagnostic criteria for PTSD. Ask the examiner, if he or she concludes that the Veteran has PTSD, to express an opinion as to whether it is at least as likely as not that his PTSD is related to reported events in service, including assault on the Veteran, threats against the Veteran, and the death by falling overboard of another serviceman.

Ask the examiner, for each diagnosed psychiatric disorder other than PTSD, to express an opinion as to whether it is at least as likely as not that the disorder is related to events or mental disorder symptoms during the Veteran's 1979 to 1983 service period.

5. Schedule the Veteran for a VA medical examination to address the nature and likely etiology of current disorders of the low back and right hand. Provide his claims file to the examiner for review. Relate to the examiner that the file has been noted to contain records of back injury in December 1979, right hand injury in October 1980, and post-service arthritis in the lumbar spine and right hand. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to provide clear and thorough explanation of all findings and opinions.

Ask the examiner to provide diagnoses for all current disorders of the low back and right hand. Ask the examiner, for each current disorder of the low back or right hand, to express an opinion as to whether it is at least as likely that the disorder had onset during the Veteran's 1979 to 1983 service period or is otherwise related to injury or events during that period.

6. Thereafter, review the expanded claims file and review the remanded claims for compensation under Section 1151 and for service connection.

7. Thereafter, schedule the Veteran for a new vocational rehabilitation review. Provide the expanded claims file to the reviewing official. Ask the official to review the case and determine whether vocational rehabilitation and training can make the Veteran able to hold employment.

8. Thereafter, if any of the remanded claims remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review, if otherwise in order. 

The Board implies no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. 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 (West 2014).




______________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs