Citation Nr: 20023079 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 15-41 671 DATE: April 3, 2020 ORDER New and material evidence having been received, entitlement to service connection for an acquired psychiatric disorder is reopened. Eligibility for financial assistance for an automobile and adaptive equipment or adaptive equipment only is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for Alzheimer’s dementia (claimed as memory loss) is remanded. Entitlement to service connection for neurosarcoidosis (claimed as blood clots in lungs, legs, and spasms in body, thighs, legs, and feet) is remanded. Entitlement to special monthly compensation based upon the need for regular aid and attendance or by reason of being housebound is remanded. FINDINGS OF FACT 1. The March 2000 and June 2000 rating decisions denying PTSD (also claimed as stress, anxiety, depression, sleeping problems, and fatigue) and dysthymic disorder are final. The February 2009 rating decision that severed entitlement to service connection for PTSD is also final. 2. Evidence has been received since the prior final decisions which relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. 3. Eligibility for automobile and adaptive equipment is a non-periodic, personal benefit that does not survive the Veteran’s death. CONCLUSIONS OF LAW 1. The March 2000, June 2000, and February 2009 rating decisions are final, and new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of the issue of eligibility for financial assistance for an automobile and adaptive equipment or adaptive equipment only. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 3.1000, 3.1010, 20.1302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1973 to April 1976. He also served in the Alabama Army National Guard and had a period of active duty from November 1990 to April 1991. The Veteran died in June 2019, and his surviving spouse has been substituted as the appellant. This case comes to the Board of Veterans’ Appeals (Board) on appeal from March 2014 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2019. A transcript of the hearing is of record. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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 the 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, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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 RO previously considered and denied a claim for service connection for posttraumatic stress disorder (PTSD) (also claimed as stress, anxiety, depression, sleeping problems, and fatigue) in a March 2000 rating decision. The RO acknowledged the Veteran’s report of a 13-day conflict with Israel and Asia in 1973, the stabbing a friend in Texas in 1975, and stress from skin rashes in 1991. However, the RO found that there was no verified stressor. The Veteran was notified of the March 2000 rating decision and of his appellate rights. In June 2000, the Veteran sent a letter to VA stating that he had been diagnosed with dysthymic disorder and that it had been caused by his physical symptoms, including leg pain and itching. The Board does not find that this letter constitutes a notice of disagreement, as it does not express disagreement with the March 2000 rating decision or express a desire to contest the result. See 38 C.F.R. § 20.201 (2000). Instead, the RO accepted the statement as a new claim. See e.g. Voracek v. Nicholson, 421 F.3d 1299, 1304-05 (Fed. Cir. 2005) The RO denied the claim for service connection for dysthymic disorder (also claimed as depression in a June 2000 rating decision. The RO noted that the Veteran’s service treatment records were negative for any complaints, treatment, or diagnosis and found that the evidence did not establish that the current disorder was incurred in or aggravated by his active service. The claim was denied because the evidence did not show complaints of dysthymic disorder in service and did not indicate that dysthymic disorder was incurred or aggravated in service. In December 2000, the Veteran submitted a letter listing his medications, but this letter also did not express disagreement with the decision determination or express a desire to contest the result. The Veteran was notified of the June 2000 rating decision and of his appellate rights, but he did not submit a notice of disagreement or new and material within one year of its issuance. In December 2000, the Veteran did submit a letter listing his medications, but he did not express disagreement with the decision or express a desire to contest the result. Therefore, the March 2000 and June 2000 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The Veteran later submitted a claim, and the RO denied the issue of entitlement to service connection for PTSD in an August 2002 rating decision. In particular, the RO notes that the found that available evidence did not show a confirmed diagnosis of PTSD or a verified stressor. The Veteran submitted a notice of disagreement in September 2002, and the RO issued a statement of the case (SOC) in May 2003. However, the Veteran did not file a timely substantive appeal. Therefore, the August 2002 rating decision is also final. See 38 U.S.C. § 7105 (b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. In January 2004, the Veteran submitted a VA Form 9 in which he listed his claim for PTSD. Although the VA Form 9 was not timely filed in response to the May 2003 SOC, the RO accepted the correspondence as a new claim for service connection. The Veteran was afforded a VA examination in July 2005, and he reported that he had received the Bronze Star for receiving fire while recovering dead bodies in Vietnam. He also reported that he had witnessed the stabbing death of his best friend and that he continued to have intrusive thoughts about Vietnam. He was diagnosed with chronic PTSD with depressed mood. Thereafter, in In an August 2005 rating decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation, effective from January 14, 2004. In October 2007, the RO reviewed documents submitted by the Veteran and found that the Bronze Star Medal and special orders documentation that he had submitted were inconsistent with the other service personnel records and appeared to be fraudulently altered. A review of his complete military personnel records showed no service in Vietnam. Thus, in an October 2007 rating decision, the RO proposed severance of service connection for PTSD on the basis that the Veteran’s stressor had not been verified. In November 2007, the Veteran submitted statements describing his claimed stressors. He wrote that he had witnessed the stabbing and death of a friend be at Fort Hood and that he was in a fire fight with North Koreans that killed two spies. He made no mention of having been in Vietnam. The Veteran also submitted service personnel records purporting to show service in the Navy in Vietnam and listing the Bronze Star with V-device and Combat Action ribbon as awards. The Veteran had also submitted different versions of his record of Assignments, one of which showed handwritten entries adding Vietnam service and another one that included added typed entries. In July 2008, a Joint Services Records Research Center (JSRRC) coordinator determined that the Veteran was sending in altered military documents for purposes of establishing a claim for PTSD. He wrote that the other records showed no service in the Navy or in Vietnam. A separate response from the JSRRC stated that they were unable to verify the Veteran’s other claimed stressors based on the information provided, which was too vague. A February 2009 memorandum indicated that the Veteran had not served in combat and had not received the Combat Action Ribbon, and it found a lack of information to corroborate his claimed stressors. In a February 2009 rating decision, the RO severed service connection for PTSD, effective March 1, 2009. The RO stated that the questionnaire provided by the Veteran did not contain enough information to verify the claimed stressors and that the service personnel records he had submitted were clearly altered from their original state and were therefore unacceptable. The Veteran did not appeal this decision, and it is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. In August 2010, the Veteran submitted a new claim for service connection for PTSD. He wrote that his military friend had died in 1975 and that he had captured a spy in 1973 or 1974. In December 2010, the Veteran’s colleague, J.C. (initials used to protect privacy), submitted a letter stating that, while they were stationed in Korea, the Veteran had been in an accident when his truck flipped over. He indicated that his space heater and sleeping bag had caught fire just couple of weeks later and that the Veteran helped to save him. He also submitted a separate statement describing how the Veteran had cut his hand on barbed wire in 1974 while apprehending a Korean man who was attempting to sneak through it. In January 2011, the Veteran submitted a newspaper article announcing the funeral of Private L.R., who was stabbed and killed at Fort Bliss. The Veteran’s son, A.M., submitted a letter in March 2011 stating that his father was depressed and had problems with memory, sleep, and mood. He wrote that his father always talks about his friend who was stabbed in Texas and that it makes him very angry that he was not allowed to attend the funeral. In August 2011, the Veteran wrote that he would like to withdraw all appeals, except for special monthly compensation. In January 2012, the Veteran called VA and requested to start an informal claim of entitlement to service connection for PTSD, but in August 2012, he called and asked to withdraw that claim. Although this request was not in writing, under 38 C.F.R. § 3.155(a), an informal claim must be followed up with the formal VA Form 21-526 within one year of the informal claim to or the informal claim is considered abandoned. See Jernigan v. Shinseki, 25 Vet. App. 220, 230 (2012). When a claim is abandoned, the Veteran must file a new claim, and the effective date will not be earlier than the date of receipt of the new claim. 38 C.F.R. § 3.158(a). The January 2012 claim is therefore considered an abandoned informal claim. After receiving various correspondence from the Veteran in 2013 regarding his health issues, the RO issued a March 2014 rating decision denying entitlement to service connection for depression because the condition was not incurred in or caused by service. The Veteran appealed that decision to the Board. The Board acknowledges that the Veteran’s past claims for psychiatric disorders have been characterized variously. The current claim has been characterized broadly to allow the consideration of any potential psychiatric diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). (the scope of a claim contains any disability reasonably encompassed by the Veteran’s reported symptoms). The Board finds that the March 2000 and June 2000 rating decisions also addressed multiple symptoms and specifically referenced his reported anxiety, stress, depression, and sleep problems, as well as the diagnoses of PTSD and dysthymia. Although the February 2009 rating decision only addressed PTSD, the Board finds that this diagnosis and its symptomatology is also encompassed within the current claim. The Board therefore concludes that new and material evidence is required to reopen the claim. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries”). Upon review, the Board concludes that new and material evidence has been submitted. The claim was previously denied, and the subsequent grant of PTSD was severed because there was no evidence of a stressor in service. Since those denials, the Veteran has submitted a January 2011 newspaper article confirming that a soldier was killed in a stabbing at Fort Bliss, where he was stationed, and he has submitted statements from J.C. describing events that occurred to them in service. Under the law, the evidence is presumed credible for the purposes of reopening a claim, and it relates to an unestablished element necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for an acquired psychiatric disorder is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the claim can be addressed. Automobile and Adaptive Equipment After the Veteran’s death in June 2019, the issues appealed to the Board were dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. In August 2019, the Veteran’s surviving spouse submitted a claim for Dependency and Indemnity Compensation, which was also accepted as a request to be substituted as the appellant in any pending claims. In November 2019, she was notified that she had been accepted as a substituted appellant for the claims that were pending before the Board. Nevertheless, substitution is only available in claims for periodic monetary benefits and not for claims for personal benefits administered through the Veterans Health Administration. 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1000, 3.1010. Automobile and adaptive equipment is considered a non-periodic, personal benefit, and these claims do not survive a veteran’s death. 38 U.S.C. § 5121(a); Gillis v. West, 11 Vet. App. 441 (1998). Therefore, the issue is not eligible for substitution by the Veteran’s surviving spouse, and it is dismissed. REASONS FOR REMAND Acquired Psychiatric Disorder The appellant contends that her husband had a psychiatric disorder that was caused by traumatic events that occurred during his military service. As discussed above, the Veteran had reported numerous events that occurred in service, but he most consistently reported that he had witnessed the stabbing death of a friend while stationed at Fort Bliss in Texas. The Veteran had also asserted that he had a separate period of service in the Navy from 1970 to 1972, which included service in Vietnam. During the January 2019 hearing, he testified that he had served in Vietnam for 10 or 11 months in the Navy and that someone had “taken a lot of stuff out of my record.” In August 2019, the appellant submitted a DD Form 214 showing that the Veteran had service in the Army from August 1970 to August 1972. This DD Form 214 was not previously of record and this earlier period of service is not reflected in the personnel records that have been obtained. There have been problems with the Veteran’s earlier claims due to the submission of altered military documents, but the Board nonetheless finds that attempts to verify this earlier period of service must be made, including all necessary inquiries to the JSRRC. A formal finding should be made regarding whether the Veteran had a period of service from 1970 to 1972, including any service in Vietnam. Moreover, regardless of whether the additional period of service has been verified, a medical opinion should be obtained addressing whether the Veteran had an acquired psychiatric disorder that was related to his military service, including his reports of witnessing his friend’s stabbing and his service in Korea. The Veteran’s VA treatment records show that he had been diagnosed with PTSD and depressive disorder/dysthymic disorder by his regular treatment providers. Sarcoidosis and Alzheimer’s Dementia The appellant has contended that her husband developed sarcoidosis and Alzheimer’s disease as a result of his military service. She wrote in August 2019 that the Veteran had died from sarcoidosis, which had invaded his lungs, eyes, and brain. At the January 2019 hearing, the Veteran’s son testified that he had been suffering from dementia for the past two years since he had a seizure. He discussed how he became severely disoriented and combative at that time when he was hospitalized and that he had severe symptoms ever since. He indicated his belief that the Veteran’s Alzheimer’s disease could have been caused or aggravated by his depression, which was related to stressors in service. The Veteran also testified that he believed his sarcoidosis could be related to exposure to herbicide agents in service while he was stationed in Korea. He reported working near a building that stored herbicide agents and weapons. The Veteran also thought that his neurosarcoidosis could be caused by his service-connected right knee disability. The Veteran’s son stated that they had once been told by a doctor that neurosarcoidosis could be related to exposure to herbicide agents in service. As discussed above, it is unclear whether the Veteran had any service in Vietnam where he could have been exposed to herbicide agents, which requires further development. Moreover, the Veteran had asserted that he had exposure to herbicide agents in Korea, but the Board notes that his period of service from 1973 to 1976 is not eligible for a presumption of exposure to herbicide agents in Korea. In this regard, VA regulations provide a presumption of herbicide exposure to certain veterans who served in Korea between April 1, 1968, and August 31, 1971, and operated in or near the Demilitarized Zone (DMZ). 38 C.F.R. § 3.307(a)(6)(iv). There is no indication that the Veteran had service in Korea during this time, and thus, the presumption is not applicable. Nevertheless, the Board finds that a medical opinion should be obtained on remand. Special Monthly Compensation The Veteran’s son testified in January 2019 that his father’s neurosarcoidosis caused decreased strength, limitation of motion, and shaking in his extremities and that it prevented him from being able to perform basic hygiene functions by himself. He discussed how the Veteran had falls and that he needed assistance with transfers to bed and to the wheelchair. The Veteran’s spouse wrote in August 2019 that the Veteran had become severely incapacitated at the end of his life due to sarcoidosis and that they had to pay people to transfer him from his bed and dress him. The Veteran’s VA treatment records show that he was hospitalized at the end of his life for complications from neuropulmonary sarcoidosis, which ultimately led to his death. Because the issue of entitlement to special monthly compensation is inextricably intertwined with the claim for service connection for neurosarcoidosis, this issue must also be remanded until the service connection claims have been decided. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should verify whether the Veteran had any period of active service in 1970 to 1972, including any service in Vietnam during this time. All appropriate agencies, including the JSRRC, should be contacted as needed. A formal memorandum must be issued outlining the steps taken and findings reached. If this period of service is not verified, the reviewer should specifically address the DD Form 214 submitted by the appellant showing service from 1970 to 1972 and explain why it is not sufficient evidence of service in Vietnam. 2. The AOJ should attempt to verify the stabbing death of the Veteran’s fellow soldier at Fort Bliss and whether this occurred at a time when the Veteran would have been present. The Veteran has provided the name of the soldier in written statements and in the newspaper clipping submitted. 3. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who provided treatment for the Veteran, including all treatment at the end of his life and any treatment received following his service in 1990 and1991. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 4. After completing the foregoing development, the AOJ should obtain a medical opinion from a psychiatrist or psychologist addressing the nature and etiology of any acquired psychiatric disorder that the Veteran had during the appeal period. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service treatment records, the Veteran's own assertions, and the January 2019 hearing transcript. It should be noted that laypersons are competent to attest to factual matters of which they have first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran or other laypersons, the examiner should provide a fully reasoned explanation. The examiner should identify any psychiatric disorders that the Veteran had during the appeal period. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or was otherwise causally or etiologically related to the Veteran’s military service. 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, as well as any stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the foregoing development, the AOJ should obtain a medical opinion addressing the etiology of the Veteran’s neurosarcoidosis and Alzheimer’s dementia. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service treatment records, the Veteran’s own assertions, and the January 2019 hearing transcript. It should be noted that laypersons are competent to attest to factual matters of which they have first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran or other laypersons, the examiner should provide a fully reasoned explanation. a) The examiner should opine as to whether it is as likely as not that the Veteran’s neurosarcoidosis manifested in service or within one year thereafter or was otherwise related to any verified period of active service. If the Veteran’s claimed service in Vietnam has been verified, he or she address whether neurosarcoidosis could have been caused by exposure to herbicide agents. b) The examiner should opine as to whether it is at least as likely as not that the Veteran’s neurosarcoidosis was either caused by or aggravated by his service-connected right knee degenerative joint disease and cruciate ligament reconstructive arthroscopy. c) The examiner should opine as to whether it is as likely as not that the Veteran’s Alzheimer’s disease/dementia is related to any verified period of active service. If the Veteran’s claimed service in Vietnam has been verified, he or she should address whether Alzheimer’s disease/dementia could have been caused by exposure to herbicide agents. d) The examiner should opine as to whether it is at least as likely as not that the Veteran’s Alzheimer’s disease/dementia was either caused by or aggravated by any acquired psychiatric disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After completing these actions, the AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.