Citation Nr: 19136397 Decision Date: 05/10/19 Archive Date: 05/10/19 DOCKET NO. 16-07 365 DATE: May 10, 2019 ORDER Entitlement to service connection for a lumbar spine disability is dismissed. New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus type II. New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus type II. New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus type II. New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus type II. New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, and posttraumatic stress disorder (PTSD). Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus type II, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus type II, is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus type II, is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus type II, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, and PTSD is remanded. FINDINGS OF FACT 1. At his January 2019 Board hearing, the Veteran unambiguously requested to withdraw his claim for entitlement to service connection for a lumbar spine disability. 2. The evidence submitted by the Veteran regarding entitlement to service connection for peripheral neuropathy of the right lower extremity is both new and material. 3. The evidence submitted by the Veteran regarding entitlement to service connection for peripheral neuropathy of the left lower extremity is both new and material. 4. The evidence submitted by the Veteran regarding entitlement to service connection for peripheral neuropathy of the right upper extremity is both new and material. 5. The evidence submitted by the Veteran regarding entitlement to service connection for peripheral neuropathy of the left upper extremity is both new and material. 6. The evidence submitted by the Veteran regarding entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, and PTSD, is both new and material. 7. The Veteran’s peripheral neuropathy of the right lower extremity is due to his diabetes mellitus type II. 8. The Veteran’s peripheral neuropathy of the left lower extremity is due to his diabetes mellitus type II. 9. The Veteran’s peripheral neuropathy of the right upper extremity is due to his diabetes mellitus type II. 10. The Veteran’s peripheral neuropathy of the left upper extremity is due to his diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for reopening the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1154(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for reopening the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1154(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria for reopening the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 1154(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 5. The criteria for reopening the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1154(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 6. The criteria for reopening the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, and PTSD, have been met. 38 U.S.C. §§ 1154(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 7. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to diabetes mellitus type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to diabetes mellitus type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 9. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity, as secondary to diabetes mellitus type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 10. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity, as secondary to diabetes mellitus type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial point, the Board notes that the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) has been reasonably raised by the record. However, the Agency of Original Jurisdiction (AOJ) has not yet developed or rendered a decision on such a claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Withdrawn Claim A substantive appeal may be withdrawn in writing, except for appeals withdrawn on the record at a hearing, at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(c). At his January 2019 Board hearing, the Veteran unambiguously indicated on the record that he wished to withdraw his claim for entitlement to service connection for a lumbar spine disability. In light of the foregoing, the Veteran has withdrawn his appeal with regard to that issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Whether new and material evidence has been received sufficient to reopen the Veteran’s claims for entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and for entitlement to service connection for an acquired psychiatric disorder In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is existing evidence not previously submitted to agency decision makers. “Material” evidence is 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 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). 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The record reflects that the Veteran was originally denied entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and an acquired psychiatric disorder (listed as dysthymic disorder and claimed as PTSD) in an April 2009. He did not timely appeal that decision, and accordingly that decision became final. 38 C.F.R. § 20.1103. The Veteran filed an application for benefits claiming entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and for PTSD/Depression in January 2014, initiating the instant appeal. Since the April 2009 decision became final, the AOJ afforded the Veteran a VA examination regarding his claims for entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities in June, he testified before the Board concerning all of the subject issues in a January 2019 hearing, and he submitted private medical records concerning both peripheral neuropathy and PTSD which were not present in the claims file. The Board finds that this evidence is new and material and, accordingly, the claims for entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and for entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, and PTSD, are reopened Service Connection 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. § 1110. Service connection can be established by evidence that shows “(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-the so-called “nexus” requirement.” 38 C.F.R. § 3.310 (a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, left lower extremity, right upper extremity, and left upper extremity, to include as secondary to diabetes mellitus type II The Veteran contends that he is entitled to service connection for peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities, as the conditions were caused or aggravated by his service-connected diabetes mellitus, type II. In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran’s medical records show that he has a current diagnosis of diabetic peripheral neuropathy, including in a June 2015 VA examination and in the March 2019 DBQ filled out by his private physician. In the June 2015 examination, the examiner indicated that the Veteran had diabetic peripheral neuropathy of the bilateral upper and lower extremities, with a date of diagnosis of 2010. In the December 2018 DBQ, the physician indicated that he had diabetic peripheral neuropathy, a recognized complication of diabetes mellitus, type II. In an October 2015 Agent Orange Review, the examiner indicated that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities was not early onset peripheral neuropathy, further supporting that the conditions were related to his diabetes. Accordingly, the preponderance of the evidence weighs in favor of his secondary service connection claim. Absent evidence to the contrary, the Board concludes that the Veteran has diabetic peripheral neuropathy of the bilateral upper and lower extremities due to his service-connected diabetes mellitus, type II. The Board recognizes that the Veteran’s claims for entitlement to service connection for peripheral neuropathy predate his claim for entitlement to service connection for diabetes mellitus, type II; however, the order in which a claimant files claims for certain disabilities does not affect the etiology of the disabilities or their etiological connection. Thus, the Board finds that secondary service connection for diabetic peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, and PTSD. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include dysthymic disorder, depression, and PTSD, as he was serving at the Long Binh base in Vietnam when the ammunition dump exploded due to an enemy rocket attack and has experienced psychological difficulties related to his military service. The Veteran was previously afforded a VA examination in February 2009 in which the examiner diagnosed him with dysthymic disorder with symptoms of depression, but concluded that the condition was not related to his experiences while in the military but rather more recent psychological stressors. The examiner noted the Veteran’s report that during his first day on base in Vietnam, the base ammunition dump blew up in a rocket attack, but he stated he was not injured and did not see anyone being injured. He did otherwise indicate that he felt his life was in danger and the examiner indicated that the Veteran did not have PTSD. However, since the February 2009 examination, the record reflects that the Veteran has been diagnosed with additional psychiatric disabilities, including major depressive disorder and PTSD. In a February 2019 disability benefits questionnaire, the Veteran’s private psychologist diagnosed the Veteran with PTSD, under both the DSM-IV and DSM-V criteria. The psychologist indicated that he reported on his first night in Vietnam the base ammunition dumb was attacked with rockets and he was traumatized by the incident. The psychologist noted that he had a very poor post-military social, vocational, and personal adjustment, and opined that it was more likely than not that the “traumas he endured in Vietnam” were the nexus between his psychiatric symptoms and his military service. With regard to PTSD, service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) or the Fifth Edition (DSM-V). See 38 C.F.R. § 4.125(a). Effective July 13, 2010, 38 C.F.R § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). Under the amended regulation, service connection for PTSD may be granted if the evidence demonstrates: (1) a current diagnosis of PTSD (rendered by an examiner specified by the regulation); (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran’s fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and (3) evidence that the Veteran’s PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. 75 Fed. Reg. 39843, 39852 (July 13, 2010). Fear of hostile military or terrorist activity means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). Here, the record demonstrates that while the Veteran’s February 2009 VA examiner discussed his claimed incident of incoming rocket fire and an ammo dump explosion, his psychiatric symptoms may have changed since that time and a PTSD diagnosis may now be appropriate. While his private physician opined that the Veteran’s fear of hostile military or terrorist activity was related to his present psychiatric symptoms, this has not been confirmed by a VA psychiatrist or psychologist as required by 38 C.F.R. § 3.304(f). Therefore, a new VA examination should be scheduled to reconcile these findings. The AOJ should also obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given The matter is REMANDED for the following action: 1. The AOJ should obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given. 2. After any newly obtained records have been associated with the claims file, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include dysthymic disorder, depressive disorder, and PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor. The examiner should also address any differences in opinion, if appropriate, with the February 2019 private opinion concerning a diagnosis of PTSD, including whether any such disorder is related to active duty service. The examiner should review the entire claims file in offering the requested opinion, and the opinion report should reflect that the claims file was reviewed. If PTSD is diagnosed, the examiner must explain how the diagnostic criteria are met, to include identifying the specific stressor(s) underlying the diagnosis, and commenting upon the link between the current symptomatology and the Veteran’s stressor(s). In doing so, the examiner should specifically address whether the Veteran’s identified stressor(s) are related to fear of hostile military or terrorist activity; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and which symptoms are related to the identified stressor(s). If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease or caused or aggravated by service connected disability. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.