Citation Nr: 20006090 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 18-24 045 DATE: January 24, 2020 ORDER New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to an acquired psychiatric disorder, to include bipolar disorder, depressive disorder, cognitive disorder, and posttraumatic stress disorder (PTSD). New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for a tremor disorder (also claimed as a pinched nerve). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, cognitive disorder, and PTSD, is remanded. Entitlement to service connection for a tremor disorder is remanded. FINDINGS OF FACT 1. Evidence received since the August 2013 denial of the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder is both new and material. 2. Evidence received since the December 2007 denial of the Veteran’s claim for a tremor disorder is both new and material. CONCLUSIONS OF LAW 1. The criteria to reopen the Veteran’s claim for entitlement to an acquired psychiatric disorder have been met. 2. The criteria to reopen the Veteran’s claim for entitlement to service connection for a tremor disorder have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board notes that the issue of entitlement to service connection for a tremor disorder has been recharacterized to also include the Veteran’s claim for entitlement to service connection for a pinched nerve. The record reflects that the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claims for entitlement to service connection for a pinched nerve and entitlement to service connection for a tremor disorder in a December 2015 rating decision. In a February 2016 Notice of Disagreement (NOD), the Veteran indicated disagreement regarding a “pinched nerve in spine,” “uncontrollable head jerking,” “PTSD, and “bipolar.” The AOJ subsequently issued a March 2018 Statement of the Case (SOC) continuing the denial of entitlement to service connection for a pinched nerve; for a mental condition, to include bipolar disorder and depression; for PTSD; and for cognitive disorder, to include memory loss. In his May 2018 VA Form 9, the Veteran indicated that he was appealing a “pinched nerve on spine,” “uncontrollable head” shaking,” and “PTSD.” Although the issues of entitlement to service connection for a pinched nerve and for a tremor disorder have previously been adjudicated separately, the evidence of record indicates that the two issues are based upon a common set of symptoms claimed by the Veteran. The Board notes that it is not entirely clear from his applications for benefits as to whether his “uncontrollable head shaking” was a symptom of a “pinched nerve” or an individual claim. He originally claimed entitlement to service connection for a “tremor disorder in neck” in March 2006. After the AOJ denied his claim in a December 2007 rating decision, the Veteran indicated in a September 2014 statement that he had a “pinched nerve in [his] spine.” The AOJ interpreted his claim as one for entitlement to service connection for back pain and denied the claim in a February 2015 rating decision. The Veteran again applied for entitlement to service connection in November 2015 and included a “pinched nerve” and “uncontrollable head shaking” in his application. While the record is somewhat unclear concerning whether the Veteran intended to file separate claims for entitlement to service connection for a pinched nerve and for a tremor disorder, in a March 2014 VA psychology consultation note, he stated that he sought a medical discharge for problems related to a pinched nerve while in service. His service treatment records do not indicate a diagnosis of or treatment for a pinched nerve; however, they do reflect complaints and diagnosis of a “neck tremor.” Further, in a June 2019 statement, the Veteran claimed that he “appealed for [a] pinched nerve on [his] spine” and stated that while in Fort Knox, Kentucky, he was written up for uncontrollable head shaking. Thus, the evidence of record indicates that the Veteran’s claim for entitlement to service connection for a pinched nerve is based on the same symptomology as his claim for entitlement to service connection for a tremor disorder. The United States Court of Appeals for Veterans’ Claims (Court) has held that, a claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). This finding enables lay persons, who are hampered by a lack of clinical knowledge, to assert a claim without the need for explicit knowledge of their underlying disability. In this regard, when determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. See also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Read together Brokowski and Clemons, mandate that the Board is to consider a Veteran’s claim in the context of his reported symptoms, not just on the basis of specific diagnoses. Accordingly, the Board has recharacterized the claims as a single issue. The Board has also recharacterized the issues of entitlement to service connection for cognitive disorder, depressive disorder, and PTSD as entitlement to service connection for an acquired psychiatric disorder, in accordance with the Clemons, supra (holding that a claim for benefits of one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). 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. § 20.200. From the date of notification of an AOJ decision, a claimant has one year to submit new evidence or to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.302. In this regard, the decision becomes final if the Veteran does not express disagreement or if new, relevant evidence is not associated with the claims file within one year of the mailing of the rating decision to the Veteran. 38 C.F.R. § 20.302. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 1. Whether new and material evidence has been received sufficient to reopen the Veteran's claim for entitlement to an acquired psychiatric disorder The record reflects that the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder (claimed as a cognitive disorder) was initially denied in an August 2013 rating decision. He subsequently filed claims for entitlement to service connection for cognitive disorder, bipolar disorder, and PTSD in January 2014, interpreted by the AOJ as a “request to reconsider” the August 2013 rating decision, which were all denied in a May 2014 rating decision. The Veteran then indicated that he “would like to initiate [a] claim for nonservice-connected disabilities,” including PTSD, bipolar disorder, and memory loss, in a June 2014 statement. The AOJ denied the Veteran’s claims in a February 2015 rating decision. The Veteran subsequently submitted additional lay and medical evidence related to his acquired psychiatric disorder claims, and also filed another application for benefits that included claims of entitlement to service connection for PTSD, cognitive disorder, and a “mental condition.” After the AOJ denied the Veteran’s claims in a December 2015 rating decision, he filed a NOD with the decision in February 2016. A NOD is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. A liberal standard is applied in determining whether a communication constitutes a NOD. While special wording is not required, the communication in question must at least refer to the rating decision in question and must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. Thus, a NOD relates to a specific adjudicative determination on a specific date. 38 C.F.R. § 20.201; see also Gallegos v. Principi, 283 F.3d 1309, 1313-15 (Fed. Cir. 2002) (upholding the validity of the regulatory requirement that a NOD include “terms that can be reasonably construed... as a desire for appellate review”); Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991). While the Veteran filed additional claims for acquired psychiatric conditions within the one-year period following the initial denial of his claims in August 2013, the record does not reflect that he expressed disagreement with that decision at any time during the relevant timeframe. Furthermore, he did not submit any new evidence related to his claims until March 2015. Thus, he did not file a NOD with the August 2013 decision or submit new and material evidence within one year of that decision and, accordingly, the decision became final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. Since the August 2013 denial, a significant amount of medical and lay evidence concerning the Veteran’s claim for an acquired psychiatric disorder has been added to the claims file. The new evidence included information that was not previously of record which could potentially affect the outcome of the Veteran’s claim. The Board therefore finds that this evidence is new and material and, accordingly, the claim for entitlement to service connection for an acquired psychiatric disorder is reopened. 2. Whether new and material evidence has been received sufficient to reopen the Veteran's claim for entitlement to service connection for a tremor disorder The Veteran’s claim for entitlement to service connection for a tremor disorder (subsequently claimed as a pinched nerve) was initially denied in a December 2007 rating decision. The record does not indicate that the Veteran filed a timely NOD or submitted new evidence within one year of that decision and, accordingly, it became final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. Since the December 2007 denial, a significant amount of medical and lay evidence concerning the Veteran’s claim for a pinched nerve has been added to the claims file. The new evidence included information that was not previously of record which could potentially affect the outcome of the Veteran’s claim. The Board therefore finds that this evidence is new and material and, accordingly, the claim for entitlement to service connection for a pinched nerve is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, as the condition was due to or aggravated by his active duty military service. The record reflects that the Veteran has not yet been afforded a VA examination related to his claim. Under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. The record indicates that the Veteran has had diagnoses of PTSD and depression, along with other psychiatric conditions, during the period on appeal, including as documented in a March 2015 VA history and physical note, and he indicated that his acquired psychiatric conditions are related to negative interactions that he had with his commanding officer during his military service. Additionally, the Veteran’s report of medical history associated with his December 1973 entrance examination indicates that he had a history of depression or excessive worry and nervous trouble of any sort. Further, the Veteran’s VA psychiatric treatment records also reflect that he reported significant abuse as a child, which may be associated with his current psychiatric conditions. However, there is no indication in the record whether an acquired psychiatric disorder existed prior to the Veteran’s entrance into active duty service and/or whether any current condition was due to or aggravated by his service. Therefore, remand is necessary so that the Veteran may be afforded a VA examination which addresses the nature and etiology of any current acquired psychiatric disorder. See McClendon, supra. 2. Entitlement to service connection for a tremor disorder is remanded. The Veteran contends that he is entitled to service connection for a tremor disorder, as the condition was due to or aggravated by his active duty military service. The record reflects that the Veteran has not yet been afforded a VA examination related to his claim. The record indicates that the Veteran has been diagnosed with and/or treated for a tremor disorder during the period on appeal. Additionally, in his 1973 entrance examination, the examiner noted that he shook at times with worry. An October 1978 treatment record noted that he had a history of multiple accidents associated with his symptoms, such as being thrown from a horse repeatedly. Further, the Veteran’s service treatment records reflect multiple instances where he complained of “neck shakes” during service and his November 1978 separation examiner noted that he had a suspected diagnosis of a palsy, with head jerking since age 15. The record indicates that the Veteran has continued to experience symptoms consistent with those reported during his active duty service since his separation. However, there is no indication in the record whether a tremor disorder existed prior to the Veteran’s entrance into active duty service and/or whether any current condition was due to or aggravated by his service. Therefore, remand is necessary so that the Veteran may be afforded a VA examination which addresses the nature and etiology of any current tremor disorder. See McClendon, supra. The AOJ should also obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. The matters are REMANDED for the following action: 1. The AOJ should obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. 2. After all newly obtained evidence has been associated with the claims file, schedule the Veteran for an examination with an appropriately qualified examiner to determine the nature and etiology of any current acquired psychiatric disorder. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. The examiner is asked to provide an opinion as to whether any acquired psychiatric disorder clearly and unmistakably existed prior to the Veteran’s active duty military service. If so, the examiner is asked to provide an opinion as to whether any such condition was clearly and unmistakably not aggravated by his military service. If the examiner determines that an acquired psychiatric disorder did not pre-exist his military service, the examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed acquired psychiatric disorder is related to his military service, the examiner should specifically address the Veteran’s claimed negative interactions with his commanding officer. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. 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. 3. After all newly obtained evidence has been associated with the claims file, schedule the Veteran for an examination with an appropriately qualified examiner to determine the nature and etiology of any current tremor disorder. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. The examiner is asked to provide an opinion as to whether any tremor disorder clearly and unmistakably existed prior to the Veteran’s active duty military service. If so, the examiner is asked to provide an opinion as to whether any such condition was clearly and unmistakably not aggravated by his military service. If the examiner determines that a tremor disorder did not pre-exist his military service, the examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed tremor disorder is related to his military service, the examiner should specifically address the Veteran’s entrance and separation examinations and his claim of a pinched nerve. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. 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.