Citation Nr: 19156232 Decision Date: 07/23/19 Archive Date: 07/19/19 DOCKET NO. 15-30 048 DATE: July 23, 2019 ORDER New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED The issue of entitlement to service connection for PTSD is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded. The issue of entitlement to a compensable initial rating for bilateral hearing loss is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A May 1994 rating decision denied entitlement to service connection for PTSD; the Veteran did not timely appeal the denial, and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of notice of the May 1994 rating decision. 2. An April 2011 rating decision denied a petition to reopen the claim for service connection for PTSD; the Veteran did not timely appeal that denial, and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of notice of the April 2011 rating decision. 3. Evidence received since the April 2011 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The May 1994 rating decision which denied entitlement to service connection for PTSD, and April 2011 rating decision which denied a petition to reopen a claim of entitlement to service connection for PTSD, are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received, the criteria to reopen a claim for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to June 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal of April 2014 and December 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran initially submitted a claim for entitlement to service connection for PTSD. See VA Form 21-4138, Statement in Support of Claim, received February 2013. The medical evidence of record includes diagnoses for psychiatric disabilities other than PTSD. Although the Veteran sought service connection only for PTSD, a claim “cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, such as PTSD, but instead makes a general claim for compensation for the difficulties posed by the mental condition. Id. Accordingly, the Board has reframed the issues on appeal, as shown above. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case, at the February 2019 Board hearing, the Veteran testified that due to his service-connected bilateral hearing loss he has difficulty communicating and therefore has not worked “too much.” The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. 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 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). 1. Whether New and Material Evidence has been Received to Reopen a Claim for PTSD In this case, the RO denied service connection for PTSD in a May 1994 rating decision, in part, because there was no evidence of a verified in-service stressor. The Veteran was notified of the decision in a letter issued May 19, 1994. The Veteran did not file a notice of disagreement with the May 1994 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the May 1994 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. The Veteran submitted a petition to reopen the claim for entitlement to service connection for PTSD in January 2011. The RO denied reopening the Veteran’s claim for entitlement to service connection for PTSD in an April 2011 rating decision because the Veteran had not submitted new and material evidence. The Veteran was notified of the decision in a letter dated April 15, 2011. The Veteran did not file a notice of disagreement with the April 2011 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 2011 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final April 2011 rating decision includes a February 2014 VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder. In the statement the Veteran reported several in-service stressors, and in the July 2015 SOC, the RO conceded that the Veteran experienced a stressful event in service based on fear of hostile military or terrorist activity in Vietnam. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the Veteran’s statement raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for PTSD, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to Service Connection for PTSD The Veteran contends that he has PTSD that is causally related to his active service. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f). 38 C.F.R. § 4.125 (a) requires that the diagnosis of PTSD must conform to the criteria of the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (DSM). For cases certified to the Board from August 4, 2014, such as the present case, the diagnosis of PTSD must be in accordance with the DSM Fifth Edition (DSM-5). 38 C.F.R. § 4.125 (a); schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,303 (March 19, 2015) (updating 38 C.F.R. § 4.125 to reference DSM-5). In an April 2014 memorandum, the RO determined that the Veteran did not provide enough information to corroborate the stressful events reported as incurred by the Veteran during his active service. However, the Board notes that the Veteran’s identified in-service stressors relate to his fear of hostile military or terrorist activity. Additionally, in the April 2017 statement of the case, the RO conceded that the Veteran experienced a stressful event in service, fear of hostile military or terrorist activity. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist confirms that the claimed stressor is adequate to support a diagnosis of PTSD disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. “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, 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). The Veteran was provided a VA examination in December 2013. The VA examiner reported that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. However, a review of the Veteran’s VA treatment records reveals that he is currently being treated for PTSD and has been diagnosed with PTSD. See, e.g., January 2011, VA treatment record. However, the VA examiner did not address the references to PTSD contained in the Veteran’s VA treatment records. As such, the Board finds that the issue must be remanded so that the Veteran may be provided another VA examination to determine whether he has a diagnosis of PTSD and, if so, whether the condition is related to an in-service stressor. 2. Entitlement to Service Connection for an Acquired Psychiatric Disorder, Other Than PTSD The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, other than PTSD. The Veteran was provided a VA examination as to his mental condition in December 2013. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the December 2013 VA examination related to service connection for an acquired psychiatric disorder, other than PTSD, is inadequate for decision-making purposes. Upon examination, the VA examiner diagnosed the Veteran with other specified trauma - and stressor-related disorder. However, the VA examiner did not provide an adequate opinion as to whether the Veteran’s diagnosed other specified trauma - and stressor-related disorder is related to his active service, to include his conceded in-service stressful event based on fear of hostile military or terrorist activity in Vietnam. See July 2017 Statement of Case. As the examination is not adequate for decision-making purposes, the Veteran must be provided a new VA examination to address whether the Veteran has an acquired psychiatric disorder, other than PTSD, that is etiologically related to an in-service event, injury, or disease, including fear of hostile military or terrorist activity in Vietnam. 3. Entitlement to a Compensable Initial Rating for Bilateral Hearing Loss The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a compensable initial rating for bilateral hearing loss. The Veteran was last provided a VA examination relating to his bilateral hearing loss in November 2016. At the February 2019 Board hearing, the Veteran testified that his condition has increased in severity. Specifically, the Veteran testified that his hearing is not clear and that he has difficulty hearing in a roomful of people. Additionally, the Veteran requested a new VA examination to determine the current severity of his service-connected bilateral hearing loss. In light of the Veteran’s assertions, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disability may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 4. Entitlement to a TDIU As noted above, the issue of entitlement to a TDIU has been raised as part and parcel to the Veteran’s claim for a higher initial disability rating for bilateral hearing loss. See Rice, 22 Vet. App. 447. As the RO has not yet considered whether the Veteran is entitled to a TDIU, the issue must be remanded to the RO for appropriate development and initial adjudication. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from August 2018. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A; Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from August 2018. 2. Send the Veteran a notification letter with respect to his claim for entitlement to a TDIU. The letter should include a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a VA Form 21-4142, Authorization and Consent to Release Information to VA, for completion and return to VA. 3. Complete any necessary development in view of the Veteran’s response to the above notification letter, to include the scheduling of any additional VA examinations deemed warranted. 4. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of each diagnosed acquired psychiatric disability, to include PTSD, and other specified trauma - and stressor-related disorder. Provide a copy of this remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Does the Veteran have a diagnosis of PTSD under the DSM-5? If a diagnosis of PTSD is deemed not appropriate, the examiner must explain why the diagnostic criteria for PTSD of the DSM-5 have not been met. The examiner must take into account and attempt to reconcile other diagnoses of record, specifically to include the notations of PTSD found in the Veteran’s VA treatment records. (b.) If the Veteran does have a diagnosis of PTSD, is it at least as likely as not (50 percent or greater probability) that the diagnosed PTSD is related to the Veteran’s fear of hostile military or terrorist activity? Rationale must be provided for the opinion proffered. “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). (c.) If the Veteran has a diagnosis of PTSD, but it is not related to the Veteran’s fear of hostile military or terrorist activity, is it at least as likely as not that the Veteran’s PTSD is related to an in-service stressor? Rationale must be provided for the opinion proffered. (d.) Is it at least as likely as not that any acquired psychiatric disability other than PTSD that is demonstrated in the record or upon examination, specifically to include other specified trauma - and stressor-related disorder, had its onset during the Veteran’s active service or is otherwise causally or etiologically related to the Veteran’s active service? Rationale must be provided for the opinion proffered. 5. After the first remand directive, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations and functional impairment related to the Veteran’s service-connected bilateral hearing loss, to include as to occupational activity. 6. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for PTSD, or service connection for an acquired psychiatric disorder other than PTSD, may be granted, and whether a compensable initial rating for bilateral hearing loss and entitlement to a TDIU may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, 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.