Citation Nr: 20009752 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-24 879 DATE: February 6, 2020 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD is granted. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to an acquired psychiatric disorder, other than PTSD, to include as secondary to service-connected erectile dysfunction is remanded. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder to include PTSD and/or the medications prescribed to treat service-connected disabilities, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder to include PTSD and/or the medications prescribed to treat service-connected disabilities, is remanded. Entitlement to service connection for a gastrointestinal disability, to include an acquired psychiatric disorder to include PTSD and/or the medications prescribed to treat service-connected disabilities, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In a November 2004 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for anxiety disorder (claimed as depression). He did not appeal the decision nor was new and material evidence received within one year. 2. The evidence received since the November 2004 decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for anxiety disorder (claimed as depression) and, if presumed credible, raises a reasonable possibility of substantiating the claim. 3. In a December 2012 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for PTSD. He did not appeal the decision nor was new and material evidence received within one year. 4. The evidence received since the December 2012 decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for PTSD and, if presumed credible, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2004 rating decision denying the claim of entitlement to service connection for anxiety disorder (claimed as depression) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for anxiety disorder (claimed as depression). 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 3. The December 2012 rating decision denying the claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to warrant reopening of the claim of service connection for PTSD. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTSD. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a November 2004 decision, the RO denied the Veteran’s original claim of entitlement to service connection for anxiety disorder (claimed as depression). The Veteran did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final as to the identified claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Under these circumstances, the RO’s November 2004 rating decision denying entitlement to service connection for anxiety disorder is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In March 2008, the Veteran raised an original claim of entitlement to service connection for PTSD. This claim was denied in an August 2008 rating decision. The Veteran did not appeal the decision and new and material evidence was not received within one year of the decision, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond, supra. Under these circumstances, the RO’s August 2008 rating decision is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran sought to reopen his claim of entitlement to service connection for PTSD in May 2012; this claim was denied in December 2012. He did not appeal the decision and new and material evidence was not received within one year of the decision. As such, the December 2012 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond, supra. Under these circumstances, the December 2012 rating decision is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran now seeks to reopen his claims of entitlement to service connection for PTSD and acquired psychiatric disorder other than PTSD. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with attention to the additional evidence received since the last final decisions in November 2004 and December 2012. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claims. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran’s claims of entitlement to service connection PTSD and an acquired psychiatric disorder other than PTSD. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, an April 2015 VA examiner indicated that the Veteran is diagnosed with other-specified trauma and stressor-related disorder, which he determined was at least as likely as not incurred in or caused by the Veteran’s reported military stressors. In addition, the Veteran submitted seven lay statements from family members and friends, who collectively described the Veteran’s psychological symptomatology dating from his active duty service as well as his report of in-service stressors. Further, the Veteran, through his attorney, submitted several articles linking erectile dysfunction and depression. Service connection for erectile dysfunction was granted, effective June 5, 2012. Critically, this evidence relates to the previously unestablished elements of nexus and continuity as to the claims of entitlement to service connection for PTSD and service connection for an acquired psychiatric disorder other than PTSD. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. 2. Entitlement to an acquired psychiatric disorder other than PTSD, to include as secondary to service-connected erectile dysfunction, is remanded. The Veteran asserts entitlement to service connection for PTSD, as well as an acquired psychiatric disorder other than PTSD. He was afforded a VA psychological examination in April 2015 at which time the examiner determined that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-V criteria. However, the examiner diagnosed the Veteran with other-specified trauma and stress-related disorder, which he indicated was at least as likely as not incurred in or caused by the Veteran’s reported military stressors. Notably, at the time of the April 2015 VA examination, the Veteran had identified two stressors: witnessing the death of his friend/fellow servicemember in an automobile accident in Thailand and exchanging gunfire with Thai nationals while guarding an ammunition dump. See, e.g., the PTSD stressor statement dated March 2014. Significantly, upon inquiry, the Defense Personnel Records Information Retrieval System (DPRIS) performed a detailed search, but was unable to corroborate the Veteran’s contentions. See the Formal Finding of Lack of Information Required to Corroborate Stressors dated August 2015. The RO therefore denied the Veteran’s PTSD claim. However, the Veteran has since asserted that he feared for his life due to the threat of hostile military activity while serving in Thailand. See, e.g., the Veteran’s notice of disagreement (NOD) dated September 2015. As this contention was not addressed by the April 2015 VA examiner, the Board finds that the Veteran’s claim of entitlement to service connection for PTSD must be remanded in order to afford him a new VA psychological examination. The Board observes that the April 2015 VA examiner additionally diagnosed the Veteran with unspecified depressive disorder, which he found was not incurred in or caused by the Veteran’s military service. Critically, the Veteran, through his attorney, has recently asserted entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected erectile dysfunction. See the written argument of the Veteran’s attorney dated December 2019. He has submitted multiple articles in support of this contention. Accordingly, upon remand, the VA psychological examination should address the Veteran’s recent contention of secondary service connection. 3. Entitlement to service connection for a gastrointestinal disability, to include as due to an acquired psychiatric disorder to include PTSD and/or the medications prescribed to treat service-connected disabilities, is remanded. The Veteran has asserted entitlement to service connection for a gastrointestinal disability on a direct basis and has alternately asserted entitlement to service connection as secondary to an acquired psychiatric disorder to include PTSD and/or the medications prescribed to treat his service-connected disabilities such as Tramadol and Naproxen. See the Veteran’s claim dated March 2015; see also the Veteran’s NOD dated September 2015. The Veteran’s VA treatment records document a history of gastroesophageal reflux disease (GERD). See, e.g., the VA treatment records dated December 2015. His service treatment records (STRs) show that the Veteran was evaluated for an episode of constant epigastric pain lasting for a period of three weeks. See the STRs dated November 1968. Two upper gastrointestinal (UGI) x-ray series were conducted, which were both negative. Id. The Veteran was determined to have “[n]o evidence of gastrointestinal disease.” Id. Significantly, the Veteran has not been afforded a VA medical opinion to address the etiology of his diagnosed gastrointestinal disability. Accordingly, this matter should be remanded in order to obtain a VA medical opinion to address the outstanding questions of nexus. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. 4. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disorder to include PTSD and/or the medications prescribed to treat service-connected disabilities, is remanded. 5. Entitlement to service connection for sleep apnea, to include as due to an acquired psychiatric disorder to include PTSD and/or the medications prescribed to treat service-connected disabilities, is remanded. 6. Entitlement to a TDIU is remanded. The matters of entitlement to service connection for hypertension and sleep apnea, as well as entitlement to a TDIU, are inextricably intertwined with the matters of entitlement to service connection for PTSD and an acquired psychiatric disorder other than PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, these claims must also be remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the etiology of his claimed PTSD and acquired psychiatric disorder other than PTSD. All indicated tests and studies should be conducted. The contents of the electronic claims file must be made available to the examiner for review in connection with the examination. a. Following examination of the Veteran and review of the entire claims file, the examiner is requested to provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD under the DSM-5 criteria. If not, the examiner should specify which of the criteria are not met. If the Veteran does meet the PTSD criteria, the examiner shall specify the stressors supporting the diagnosis. If the diagnosis of PTSD is based upon a stressor involving fear of hostile military or terrorist activity, the examiner shall so state. In rendering this finding, the examiner should specifically address the Veteran’s contention that he feared for his life during his service in Thailand, as referenced above. b. For any additional psychiatric diagnosis (including any previously diagnosed psychiatric disorders such as depressive disorder, NOS, and anxiety disorder, NOS) the examiner is requested to provide an opinion as to: i. Whether it is at least as likely as not that said disability was incurred in or caused by the Veteran’s active duty service. ii. Whether it is at least as likely as not that said disability is (1) proximately due to a service-connected disability to include erectile dysfunction, or is (2) aggravated beyond its natural progression by a service-connected disability to include erectile dysfunction. In answering these questions, the examiner should address the Veteran’s assertions of continuity of symptomatology dating from his military service. The medical reasons for accepting or rejecting the Veteran’s statements regarding continuity since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Refer the VA claims file to a medical professional to provide an opinion as to the claimed gastrointestinal disability. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The clinician should then address the following: a. With respect to the diagnosed gastrointestinal disability (to include GERD), is it at least as likely as not that the identified disability was incurred in the Veteran’s active duty service? b. Whether any diagnosed gastrointestinal disability to include GERD is at least as likely as not (1) proximately due to a service-connected disability to include the medications prescribed to treat these disabilities (such as Tramadol and Naproxen), or (2) aggravated beyond its natural progression by a service-connected disability to include the medications prescribed to treat his service-connected disabilities. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. In addressing the above, the examiner must consider and discuss the pertinent medical, periodical, and other objective in- and post-service evidence, and all lay assertions. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.