Citation Nr: 20032986 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-38 846 DATE: May 12, 2020 ORDER The application to reopen a previously denied claim of entitlement to service connection for colon polyps is denied. The application to reopen a previously denied claim of entitlement to service connection for heart disease is denied. The application to reopen a previously denied claim of entitlement to service connection for hypertension is denied. The application to reopen a previously denied claim of entitlement to service connection for left foot disability is denied. The application to reopen a previously denied claim of entitlement to service connection for right foot disability is denied. The application to reopen a previously denied claim of entitlement to service connection for neck disability is denied. Entitlement to service connection for unspecified depressive disorder is granted. Entitlement to special monthly compensation (SMC) based on aid and attendance, or under the provisions of 38 U.S.C. § 1114 (s) is denied. FINDINGS OF FACT 1. A December 2013 rating decision denied service connection for right and left foot condition, colon polyps, hypertension, neck condition, and denied reopening the service connection claim for heart disease. The Veteran did not timely file a notice of disagreement to the decision, and new and material evidence was not received within the one-year appeal period. 2. Evidence added to the record since the December 2013 decision became final is cumulative and redundant and does not relate to an unestablished fact that is necessary to substantiate the claims of service connection, or raise a reasonable possibility of substantiating the claims. 3. The evidence is at least evenly balanced as to whether the Veteran’s unspecified depressive disorder is related to service. 4. The evidence of record reflects that the Veteran does not require assistance in accomplishing the activities of daily living, is not unable to protect himself from the hazards and dangers of his daily environment due to his now service-connected disability, and does not have a service connected disability rated total and an additional service-connected disability independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The December 2013 rating decision that denied the Veteran’s claim for entitlement to service connection for right and left foot condition, colon polyps, hypertension, neck condition, and denied reopening the service connection claim for heart disease is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received since the December 2013 rating decision is not new and material, the criteria for reopening the claims of entitlement to service connection for right and left foot condition, colon polyps, hypertension, neck condition, and heart disease have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for unspecified depressive disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for SMC based on the regular need for the aid and attendance of another person, or under the provisions of 38 U.S.C. § 1114 (s), have not been met. 38 U.S.C. §§ 1114 (l), 1114 (s), 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to November 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia which denied, among one other thing, service connection for posttraumatic stress disorder (PTSD) and SMC; and an April 2016 rating decision of the VA RO in Atlanta, Georgia which denied reopening claims for service connection for colon polyps, heart problems, hypertension, left and right foot condition, and a neck condition. In February 2013 and April 2016, the Veteran filed his notices of disagreement, was issued a statement of the case in April 2014 and April 2019, and in March 2015 and April 2019 perfected his appeals to the Board. The Board notes that the Veteran’s March 2015 Form 9 appeal form was received more than 60 days after the issuance of the statement of the case. However, the Veteran indicated in his March 2015 Form 9 that he never received a copy of his statement of the case as he believed it was sent to an incorrect address. The Veteran provided an updated address and requested that his appeal be sent to the Board. As the Veteran provided reasonable explanation as to why his Form 9 appeal was sent more than 60 days after he was issued a statement of the case, the RO accepted the Veteran’s Form 9 as timely, and the Board accepted jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In September 2018, the Board, among one other thing, remanded the Veteran’s claim for service connection for PTSD and SMC for a VA examination to determine whether the Veteran has a psychiatric disability related to service. New and Material The Agency of Original Jurisdiction denied the Veteran’s claim of entitlement to service connection for, among other things, right and left foot condition, neck condition, colon polyps, and hypertension, and continued its denial of service connection for a heart condition, to include on the basis that the evidence of record did not show that the conditions occurred in, or were caused or aggravated by service, or reflect continuity of symptomatology since service in a December 2013 rating decision. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. The decision is therefore final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade, 24 Vet. App. at 117. 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. At the time of the December 2013 rating decision, evidence relevant to the service connection claims included service treatment records from October 1976 to November 1976, and VA treatment records from April 2003 through December 2013. Evidence received since that prior final denial includes post-service VA treatment records from September 2015 through May 2019. The evidence regarding the Veteran’s service connection claims is cumulative and redundant of the record and does not raise a reasonable possibility of substantiating the claims. The evidence added since the December 2013 rating decision detailed treatment for hypertension, colon polyps, neck pain, and a heart disability, evidence which was already contained in the Veteran’s previous VA treatment records. Therefore, the evidence is cumulative and redundant of the record as it had been established that the Veteran suffered from these disabilities at the time of the December 2013 rating decision. There is no new evidence relating to the basis for the prior final denials, for example an opinion regarding a nexus between the Veteran’s claims and service. As the evidence added to the record since the prior final denial is not new and material, the application to reopen the claims for service connection for right and left foot condition, neck condition, colon polyps, hypertension, and a heart condition must be denied. The benefit of the doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Psychiatric disability In a September 2011 statement, the Veteran indicated that he suffers from PTSD since separation from service in 1976. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders criteria, in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § § 3.304 (f). The Board notes that the DSM-IV has been updated with a Fifth Edition (DSM-V). Effective August 4, 2014, VA issued a rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the final rule only apply, however, to all applications received at the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the Court, or the United States Court of Appeals for the Federal Circuit (Federal Circuit). 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014). The Veteran’s psychiatric claim was pending before the Board after that date, therefore DSM-V applies. The record contains psychiatric diagnoses for unspecified depressive disorder, and alcohol use disorder. Therefore, the Board has expanded the issues on appeal to entitlement to service connection for a psychiatric disorder, to include PTSD, and unspecified depressive disorder consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s service treatment records do not note treatment for, or complaints of a psychiatric disability. A November 2011 post-service VA psychology consult noted a negative depression screen, and a negative PTSD screen. The Veteran denied current problems with depression, anger control, or anxiety. The Veteran submitted buddy statements from longtime friends who reported that prior to service, the Veteran was very social, with a large network of friends, but since service has become withdrawn, socially isolated, easily angered and depressed. An April 2017 disability benefits questionnaire (DBQ) prepared by a private psychologist noted a diagnosis of unspecified depressive disorder, and of alcohol use disorder in sustained remission, but the examining psychologist noted that it was not possible to differentiate what symptoms are attributable to each diagnosis. The psychologist referenced treatises which discussed active military service and its impact on depression, anxiety, and quality of life satisfaction, and opined that the Veteran’s unspecified depressive disorder more likely than not began in military service, continues to the present, and prevents him from maintaining substantially gainful employment. In September 2019, the Veteran was afforded a VA examination which noted that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria. The examination report did however note a diagnosis of unspecified depressive disorder and alcohol use disorder, and indicated that it was possible to differentiate what symptoms are attributable to each diagnosis. The Veteran reported that prior to service, he was mild mannered, but since service he has become very angry and feels a sense of betrayal from the United States Marine Core. He reported being diagnosed with glaucoma during service which led to his discharge. He also stated that the diagnosis led to him drinking and doing drugs regularly, which resulted in his daughter and girlfriend leaving him, and caused him to fall into a deep depression. The examination report indicated that the Veteran fails to meet Criterion A for a traumatic event, and thus does not meet the DSM-5 criteria for PTSD. The examination report noted that the Veteran does meet the criteria for depression, but the examining psychologist opined that the Veteran’s depression was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event or illness. The psychologist stated that while the Veteran’s friends noted differences in his behavior after discharge, there was no injury which occurred to suggest he experienced anything that a reasonable expert would consider to be traumatic. She also stated that the private psychologist’s opinion is not valid as the private psychologist is not licensed to practice in Georgia where the Veteran was at the time of his telephonic interview, and was not consistent with the Veteran’s presentation at the time of the September 2019 VA examination. The evidence of record is at least evenly balanced as to whether the Veteran’s unspecified depressive disorder is related to service. The April 2017 DBQ and September 2019 VA examination report both note a diagnosis of unspecified depressive disorder which the Veteran contends he has struggled with since service. While the September 2019 VA psychologist opined that the Veteran’s unspecified depressive disorder was less likely than not (less than a 50 percent probability) incurred in or caused by an in-service injury, event or illness, the April 2017 private psychologist opined that it more likely than not began in service, and provided a thorough rationale with references to medical treatises to support her opinion. Therefore, the April 2017 private psychologist’s opinion is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran also provided competent and credible evidence from his friends who stated that his personality had changed substantially since discharge from service. The Board acknowledges the September 2019 VA psychologist’s statement that the April 2017 private psychologist’s opinion is invalid. However, as noted on the DBQ form, to conduct the initial examination for mental disorders, the examiner must be a board-certified or board-eligible psychiatrist; a licensed doctorate-level psychologist; a doctorate-level mental health provider under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist; a psychiatry resident under close supervision of a board-certified or board eligible psychiatrist or licensed doctorate-level psychologist; or a clinical or counseling psychologist completing a one-year internship or residency (for purposes of a doctorate-level degree) under close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist. According to the April 2017 private psychologist’s curriculum vitae, she is a licensed psychologist with a Ph.D. in counseling psychology. Therefore, as a licensed doctorate-level psychologist, she meets the requirements to complete the DBQ and her opinions are valid. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s unspecified depressive disorder is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for unspecified depressive disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § §3.102. SMC The Veteran contends in his May 2011 supplemental claim form that he is entitled to SMC based on aid and attendance due to his disabilities including his glaucoma and depression. SMC provides for additional levels of compensation above the basic levels of compensation afforded by the schedular rating criteria in 38 C.F.R. Part 4. These additional levels of compensation are awarded for various types of losses or levels of impairment, due solely to service-connected disabilities, and for specific combinations of such impairments. The different types of SMC available are commonly referred to by their alphabetic designations, such as SMC(k), SMC(l), etc., which correspond to the paragraphs of 38 U.S.C. § 1114 which provides the statutory authority for SMC. These same paragraphs are codified in VA regulations, predominantly at 38 C.F.R. § 3.350 (a) - (i). SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to need regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In this matter, the record does not reflect that the Veteran has the anatomical loss or loss of both feet or one hand and one foot, or is blind in both eyes due to a service connected disability. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Thus, the question is whether he is permanently bedridden or so helpless as to be in need of regular attendance due to his now service-connected unspecified depressive disorder. Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a veteran is so helpless as to need regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. “Bedridden” is defined as that condition, which, through its essential character, requires that a claimant remain in bed, and is a proper basis for this determination. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352 (a). The Veteran is now service connected for unspecified depressive disorder. For the following reasons, the requirements for SMC based on aid and attendance have not been met for any period on appeal. There is no evidence of record indicating the Veteran is in need of aid and attendance due to his service-connected disability. While the Veteran’s unspecified depressive disorder causes a depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, he is able to handle his household finances, and acknowledged that he still tries to do yard work. There is no evidence of record that indicates that the Veteran requires the care or assistance of another on a regular basis, or that the Veteran required care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Therefore, the above evidence reflects that the Veteran does not meet the criteria for aid and attendance. Pursuant to 38 U.S.C. § 1114 (s), when a Veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). The Veteran is now service connected solely for his unspecified depressive disorder. Therefore, the Veteran does not qualify for compensation at the 38 U.S.C. § 1114 (s) rate. For the foregoing reasons, the preponderance of the evidence is against the claim for SMC, including based on aid and attendance. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.