Citation Nr: 1810403 Decision Date: 02/20/18 Archive Date: 03/01/18 DOCKET NO. 13-09 265A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for chronic liver disease. 2. Entitlement to service connection for chronic liver disease. 3. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and/or major depressive disorder and/or anxiety disorder. 4. Entitlement to service connection for a lung disability. 5. Entitlement to service connection for bilateral arm numbness. 6. Entitlement to service connection for a right shoulder disability. 7. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. REPRESENTATION Veteran represented by: Ralph Bratch, an attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1968 to April 1970, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a November 2015 videoconference hearing. A transcript is of record. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The issues of entitlement to service connection for a chronic liver disorder, an acquired psychiatric disorder, a lung disorder, bilateral arm numbness, and a right shoulder disability, and to an increased rating for degenerative joint disease of the left knee, 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 Veteran's claim for service connection for a chronic liver disorder was denied in an August 2004 rating decision. The Veteran was informed of that decision and his appellate rights, but did not appeal or submit new and material evidence within one year. 2. Evidence received into the record since the August 2004 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a chronic liver disorder. CONCLUSIONS OF LAW 1. The August 2004 rating decision denying entitlement to service connection for a chronic liver disorder is final. 38 U.S.C. § 1705(c); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the August 2004 rating decision is new and material, and the claim of entitlement to service connection for a chronic liver disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's Claims Assistance Act (VCAA) requires the VA to provide notice and assistance to the appellant to substantiate his or her claim. However, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for reopening. Whether new and material evidence has been introduced to reopen a claim of service connection for a chronic liver disorder Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran's claim for service connection for a chronic liver disorder was originally denied in April 2003. The Veteran filed a notice of disagreement in February 2004. His claim was again denied in an August 2004 rating decision. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the August 2004 decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records, lay statements, and hearing testimony in support of his claim that shed additional light on his service and the nature of his disability. The Board finds this evidence "new," because it postdates the aforementioned rating decisions. The Board also finds the new evidence "material," because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claim of service connection for a chronic liver disorder is reopened. ORDER The claim for entitlement to service connection for a chronic liver disorder is reopened, and to this extent only, the appeal is granted. REMAND Unfortunately, additional development is necessary before the matters on appeal can be finally adjudicated. As regards the Veteran's claim for increase for his left knee disability, the Board observes that he was last evaluated by a VA examiner in October 2009. Nearly a decade having passed since that examination, the Board finds a new VA examination necessary to explore the current nature and severity of the Veteran's left knee disability. With respect to the Veteran's service connection claims, the Board observes that he has not as yet been afforded VA examinations in connection with his claims for service connection for liver disease, a psychiatric ailment, a lung disability, or a right shoulder disability. The Veteran was afforded a VA cervical spine examination in November 2016, which examination deals in part with the Veteran's claim for service connection for bilateral arm numbness, but that examination and accompanying opinion merely indicate that the Veteran's cervical spine disability is less likely than not related to service, and that any radicular symptoms associated therewith are therefore less likely than not related to service. The Board finds this examination inadequate to adjudicate the claim for bilateral arm numbness. It does not indicate the Veteran's presenting symptomatology, is, per se unrelated to any aspect of service, and does not address any potential alternative provenence for arm numbness. As such, a new examination is necessary to specifically address the Veteran's claim of bilateral arm numbness. With respect to the Veteran's claim for service connection for a psychiatric ailment, alternatively characterized as PTSD, depression and anxiety disorder in the record, the Board observes that the Veteran has theorized that his mental symptoms owe, at least in part, to his physical ailments, including his service-connected left knee disability. Hence, or remand, the examiner must comment on any etiological relationship between the Veteran's service-connected left knee disorder, and/or any other physical limitations, and his psychiatric symptoms. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Conduct the appropriate development to verify any reported PTSD stressors. The AOJ should advise the Veteran that he may submit lay statements that may tend to corroborate his claimed stressors, including the dates and locations thereof. All attempts to verify the Veteran's reported PTSD stressors must be documented in the claims file. 3. After the preceding development is completed, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder other than anxiety disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders other than anxiety disorder. He or she should specifically indicate whether the Veteran has major depressive disorder, anxiety disorder, and/or PTSD. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology therein. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused or aggravated beyond its normal course of progression by the Veteran's service-connected left knee disability, or by any other physical ailment. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should consider the criteria of both the DSM-IV and the DSM-V in determining whether the diagnostic criteria to support the diagnosis of PTSD has been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. 4. Schedule the Veteran for an examination by an appropriate medical professional to ascertain the nature and etiology of his chronic liver disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Please identify by medical diagnosis the Veteran's liver disorder(s). (b) For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran's liver condition began in service or is otherwise related to service? 5. Schedule the Veteran for an examination by an appropriate medical profession to ascertain the nature and etiology of any lung disability that may be present. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Please identify by medical diagnosis the Veteran's lung disorder(s). (b) For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran's lung condition began in service or is otherwise related to service? 6. Schedule the Veteran for an examination by an appropriate medical profession to ascertain the nature and etiology of the Veteran's right shoulder disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Please identify by medical diagnosis the Veteran's right shoulder disorder. (b) For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran's right shoulder condition began in service or is otherwise related to service? 7. Schedule the Veteran for an examination by an appropriate medical profession to ascertain the nature and etiology of the Veteran's bilateral arm numbness. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Please identify by medical diagnosis or diagnoses the provenance of the Veteran's credibly reported bilateral arm numbness. (b) For each diagnosis deemed causative or etiologically related to the Veteran's bilateral arm numbness, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that that condition began in service or is otherwise related to service? 8. Schedule the Veteran for a VA examination to assess the nature and severity of his service-connected left knee disability. The electronic file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. The examination should be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to the knees and spine. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joints in question and any paired joint must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The rationale for all opinions expressed must be provided. 9. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs