Citation Nr: 20078209 Decision Date: 12/10/20 Archive Date: 12/10/20 DOCKET NO. 19-16 333 DATE: December 10, 2020 ORDER VA has not received new and material evidence to reopen a claim of service connection for hypertension. VA has received new and material evidence to reopen a claim of service connection for Hepatitis C. VA has received new and material evidence to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder and delusional disorder, is granted. Entitlement to service connection for glaucoma is denied. Entitlement to service connection for a pancreatic disorder is denied. Entitlement to service connection for diverticulitis is denied. Entitlement to service connection for a temporary total evaluation for diverticulitis is denied. REMANDED Entitlement to a rating greater than 10 percent for right knee instability is remanded. Entitlement to a rating greater than 10 percent for right knee impairment is remanded. Entitlement to a rating greater than 10 percent for left knee instability is remanded. Entitlement to a rating greater than 10 percent for left knee impairment is remanded. Entitlement to a rating greater than 10 percent for a right ankle disorder is remanded. Entitlement to a rating greater than 0 percent for a scar, right ankle, is remanded. Entitlement to a rating greater than 10 percent for hemorrhoids is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Entitlement to service connection for Hepatitis C is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of service connection for hypertension in a May 2010 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the May 2010 rating decision became final. 2. Since this final denial, the Veteran has not submitted evidence that, by is itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the hypertension claim. 3. The AOJ denied the Veteran’s claim of service connection for Hepatitis C in a May 2010 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the May 2010 rating decision became final. 4. The Veteran filed a claim for service connection for Hepatitis C in September 2015. He submitted new and material evidence with this claim. 5. The AOJ denied the Veteran’s claim of service connection for PTSD in a May 2010 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the May 2010 rating decision became final. 6. The Veteran filed a claim for service connection for PTSD in August 2015. He submitted new and material evidence with this claim. 7. The Veteran’s service-connected musculoskeletal disorders aggravated his acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder and delusional disorder. 8. The Board has found no evidence of an in-service injury or event regarding the Veteran’s glaucoma. 9. No medical professional diagnosed the Veteran with a pancreatic disorder, and there is no evidence the Veteran’s prominent lymph node in the pancreas resulted in a level of functional impairment in earning capacity to constitute a disability during the period on appeal. 10. The Board has found no evidence of an in-service injury or event regarding the Veteran’s diverticulitis. 11. The Veteran's diverticulitis is not service connected, so VA may not compensate the Veteran for his hospitalization for diverticulitis. CONCLUSIONS OF LAW 1. The May 2010 rating decision denying the claim for service connection for the residuals of hypertension is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence since the May 2010 rating decision has not been submitted to allow the reopening of the claim of service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The May 2010 rating decision denying the claim for service connection for Hepatitis C is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 4. New and material evidence since the May 2010 rating decision has been submitted to allow the reopening of the claim of service connection for Hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The May 2010 rating decision denying the claim for service connection for PTSD is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 6. New and material evidence since the May 2010 rating decision has been submitted to allow the reopening of the claim of service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder and delusional disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for glaucoma have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 9. The criteria for service connection for a pancreatic disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 10. The criteria for service connection for diverticulitis have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 11. The criteria for a 100 percent temporary rating for diverticulitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had two periods of active service - December 6, 1976 to December 5, 1980, and December 6, 1980 to August 16, 1983. Pursuant to an April 1984 administrative decision, the Department of Veterans Affairs (VA) determined that the Veteran was not eligible for benefits based on the second period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of February 2016 and May 2017 of an Agency of Original Jurisdiction (AOJ) of the VA. Two administrative matters warrant discussion. First, as the Board will discuss below, the AOJ developed the psychiatric claims in this appeal separately, splitting PTSD from the other non-PTSD claims. For the Veteran’s understanding, in 2009, the U.S. Court of Appeals for Veterans Claims decided Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court held that a claimant seeking service connection for a psychiatric disability who has no special medical expertise is not competent to provide a diagnosis requiring application of medical expertise to facts such as claimant’s description of history and symptoms. Therefore, VA should construe claims for service connection based on reasonable expectations of a non-expert claimant. While the Board would ordinarily broaden, combine, and recharacterize the psychiatric claims into one, it will not do so here. The nature and etiology of the Veteran's PTSD is unclear and further development is warranted. This contrasts with the Board's favorable action, as described below, for his non-PTSD psychiatric claim. Once the PTSD claim is developed, the evidence gathered may impact the rating VA will assign to the non-PTSD psychiatric disability. Second, the AOJ, on April 30, 2019, issued a Statement of the Case concerning entitlement to a TDIU. The Veteran, to perfect his appeal of this issue, submitted a Form 9 received on May 10, 2019 in which he requested a Board hearing. However, on May 22, 2019, his attorney submitted a VA Form 9, also to perfect an appeal of the TDIU issue. His attorney, on behalf of the Veteran, declined a Board hearing. The Board finds the May 22, 2019 VA Form 9 supersedes the May 11, 2019 VA Form 9 on the hearing request issue. As such, the Board finds the Veteran has withdrawn his request of a Board hearing on the TDIU issue. New and Material Evidence – Background Law Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Issue 1: Whether VA has received new and material evidence to reopen a claim of service connection for hypertension The AOJ denied the Veteran's claim for service connection for hypertension in a May 2010 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the May 2010 rating decision became final. At the time of the May 2010 rating decision, the record consisted, most notably, of service treatment records, private treatment records, and VA treatment records. The May 2010 rating decision, after finding the Veteran was first diagnosed with hypertension in 1988, denied the claim because "this condition neither occurred in nor was caused by service," i.e., the in-service injury and nexus prongs of the three-prong test of service connection. The Veteran filed a claim for service connection for hypertension in October 2015. The AOJ denied reopening the claim in a February 2016 rating decision finding the Veteran did not submit new and material evidence with this claim. After the last final denial of this claim, the Veteran has submitted no evidence showing either an in-service injury or that service caused his hypertension. Moreover, he has not explained, including in his April 2016 Notice of Disagreement, May 2019 VA Form 9, or January 2020 counsel brief, how the AOJ erred in its decision not to reopen his claim. The Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless, and as described, the evidence that has been added to the claims file since May 2010 clearly does not reach that threshold. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran’s previously denied claim for service connection for hypertension. Issue 2: Whether VA has received new and material evidence to reopen a claim of service connection for Hepatitis C The AOJ denied the Veteran's claim for service connection for Hepatitis C in a May 2010 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the May 2010 rating decision became final. At the time of the May 2010 rating decision, the record consisted, most notably, of service treatment records, private treatment records, and VA treatment records. The May 2010 rating decision, after finding the Veteran was first treated for Hepatitis C in 2001, denied the claim because "this condition neither occurred in nor was caused by service," i.e., the in-service injury and nexus prongs of the three-prong test of service connection. The Veteran filed a claim for service connection for Hepatitis C in September 2015. The AOJ denied reopening the claim in a February 2016 rating decision finding the Veteran did not submit new and material evidence with this claim. In his October 2015, claim, the Veteran asserted that his Hepatitis C was “due to in-service inoculations” while at Scofield Barracks, Hawaii, in 1978. The Board recognizes the threshold for reopening a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). New evidence that is not likely to convince the Board to alter its previous decision could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Here the Board finds that the Veteran’s statement alleging how he contracted Hepatitis C in service is both new and material evidence. It is new because the Veteran did not previously advance a theory of entitlement to service connection at the time of his original claim. It is also material because it helps substantiate the Veteran’s claim, and it relates to a reason the AOJ previously denied the claim (i.e., the in-service injury prong). Reopening of the Appellant’s claim for service connection for Hepatitis C based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). Issue 3: Whether VA has received new and material evidence to reopen a claim of service connection for PTSD The AOJ denied the Veteran’s claim for service connection for PTSD in a May 2010 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the May 2010 rating decision became final. At the time of the May 2010 rating decision, the record consisted, most notably, of service treatment records, private treatment records, and VA treatment records. The May 2010 rating decision denied the claim because “the evidence [did] not show a confirmed diagnosis of post-traumatic stress disorder which would permit a finding of service connection," i.e., the current disability prong of the three-prong test of service connection. The Veteran filed a claim for service connection for PTSD in August 2015. The AOJ reopened the claim even though it found "the evidence [did] not show a current diagnosed disability." It then denied the claim on the merits. After the last final denial of this claim, VA treatment records have been added to the claims file. Most of these records do not show a PTSD diagnosis. However, a November 25, 2019 record cites an "active problem" list that includes a diagnosis of "chronic PTSD" made on February 15, 2019 by H.W. Moreover, it says the PTSD is "combat-related" and that the Veteran "follows with private psychiatry" for the disorder. This evidence of diagnosis is new. It is also material because it helps substantiate the Veteran's claim, and it relates to a reason the AOJ previously denied the claim. Reopening of the Appellant’s claim for service connection for PTSD based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). Secondary Service Connection Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Issue 4: Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder, and delusional disorder K.B., PsyD., diagnosed the Veteran with unspecified depressive disorder and delusional disorder in November 2019, as reported in a Disability Benefits Questionnaire submitted in February 2020. This satisfies the first prong of a secondary service connection claim for this disorder. VA has service connected the Veteran for seven musculoskeletal disabilities. This satisfies the second prong of a secondary service connection claim for this disorder. K.B., after recounting the Veteran's long history of substance abuse and musculoskeletal pain, opined it "was difficult to determine the origin of [the Veteran's] depressive symptoms and delusional beliefs strictly from the veteran's report." However, K.B. further opined that his psychological symptoms "have been impacted by his physical health limitations, therefore it is as likely as not that unspecified depressive disorder and delusional disorder have been permanently aggravated by his service-connected medical conditions." This satisfies the third prong of a secondary service connection claim for this disorder. The Board finds that there is adequate evidence to enable the AOJ to determine the baseline level of disability upon the evidence of record. The Veteran has satisfied all three prongs of a secondary service connection claim for this disorder. Therefore, the Board will grant the appeal. Direct Service Connection – Background Law Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Issue 5: Entitlement to service connection for glaucoma The Veteran has glaucoma, so this satisfies the first prong of a direct service connection claim. Here, the Veteran fails the second prong of service connection – in-service event. Neither the Veteran nor his counsel have articulated any in-service diagnosis of glaucoma or event that precipitated its later development. The Board has reviewed the Veteran’s service treatment records, and it does not find any either. Because the Veteran has not satisfied all three prongs of a direct service connection claim, the Board must deny the appeal. Issue 6: Entitlement to service connection for a pancreatic disorder The Board has reviewed the Veteran's extensive medical treatment records, finds the Veteran does not have a pancreatic disorder. At most, a December 11, 2015 VA treatment record shows a "prominent lymph node in the pancreas." The evidence does not show, nor has the Veteran or his counsel contended, that the prominent lymph node in the pancreas results in a level of functional impairment in earning capacity to constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Moreover, neither the Veteran nor his counsel have identified any pancreatic disorder diagnosis, nor have they explained how the AOJ erred in denying his claim. Because there is no evidence of a diagnosis, the Board finds the Veteran does not meet the current disability requirement, i.e., the first prong of a service connection claim. Accordingly, the Board must deny the appeal. Issue 7: Entitlement to service connection for diverticulitis The Veteran has diverticulitis, so this satisfies the first prong of a direct service connection claim. Here, the Veteran fails the second prong of service connection – in-service event. Neither the Veteran nor his counsel have articulated any in-service diagnosis of diverticulitis or event that precipitated its later development. The Board has reviewed the Veteran’s service treatment records, and it does not find any either. Because the Veteran has not satisfied all three prongs of a direct service connection claim, the Board must deny the appeal. Issue 8: Entitlement to service connection for a temporary total evaluation for diverticulitis Under 38 C.F.R. § 4.30, VA will assign a total disability rating without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. The Veteran claimed a temporary total evaluation in October 2015. He did not identify the service-connected disability for which he was purportedly hospitalized. The AOJ construed this claim to relate to the Veteran's hospitalization for diverticulitis from October 25, 2015 until November 9, 2015. Neither the Veteran nor his counsel have disagreed with the AOJ's construal of the record. As such, the Board will view this claim through the same lens. Because the Board has denied service connection for diverticulitis, it must similarly deny this claim insofar as it is inextricably intertwined. REASONS FOR REMAND Remand is warranted for the following claims. Right knee instability Right knee impairment Left knee instability Left knee impairment Right ankle disorder Scar, right ankle Hemorrhoids TDIU The Veteran claimed a TDIU in December 2016. The AOJ, in turn, had the Veteran examined for the seven above-identified issues in May 2017. The examiner, as indicated by the reports for the respective disabilities, did not review the claims file prior to completing the reports. Indeed, the examiner said, "no files were reviewed," as seen in the "evidence review" section of each report. This statement renders the reports generated from these examinations inadequate. Remand is therefore warranted for a new examination with consideration of the entire claims file to determine the functional impairment each of these issues causes. PTSD As indicated above, a November 25, 2019 VA treatment record cites an "active problem" list that includes a diagnosis of "chronic PTSD" made on February 15, 2019 by H.W. Moreover, it says the PTSD is "combat-related" and that the Veteran "follows with private psychiatry" for the disorder. Neither the February 15, 2019 record nor the private treatment records cited are in the claims file, so remand is warranted to attempt to obtain them. Moreover, the "combat-related" finding suffices to trigger VA's requirement to examine the Veteran to determine the nature and etiology of his PTSD. Hepatitis C Having reopened the Veteran’s claim for service connection for Hepatitis C, the Board must now determine whether the reopened claim may be granted on the merits, de novo. As noted above, the Veteran has asserted that his Hepatitis C is due to in-service inoculation received at Scofield Barracks, Hawaii, in 1978. The Veteran’s VA treatment records reflect that he has been treated for Hepatitis C since approximately 2001. This satisfies the first prong of a service connection claim for this disorder. The Veteran’s military personnel records reflect that he was posted in Hawaii from June 1977 to June 1979. The Veteran’s service treatment records include an Immunization Record which documents the administration of vaccinations and other immunizations from 1976 to 1982. This satisfies the second prong of a service connection claim for this disorder. When the Board reopens a legacy claim that the RO declined to reopen, it may not consider new evidence and decide the matter without obtaining a waiver from the claimant or determining that the claimant will not be prejudiced by such adjudication. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010); Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). In the Veteran’s case, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for Hepatitis C because no medical examiner has opined whether his Hepatitis C is related to service, including as due to inoculations received while posted in Hawaii. Therefore, an appropriate examination and opinion must be obtained upon remand. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. Attempt to obtain all VA treatment records related to the Veteran's February 25, 2019 diagnosis of PTSD, as seen in the CAPRI records uploaded to the claims file on November 27, 2019, page 3. 2. Ask the Veteran to identify the private medical professionals who have treated him for his PTSD. If the Veteran responds, attempt to obtain these records. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his PTSD. The examiner should provide the following opinions: a) Is it as least as likely as not (50 percent or greater probability) that the currently diagnosed PTSD was incurred in or is etiologically related to service? b) Do you concur with the February 15, 2019 PTSD diagnosis that characterized it as "combat-related"? If yes, why? If no, why not? 4. Schedule the Veteran for VA examinations for his a) right knee disorders; b) left knee disorders; c) right ankle disorder; d) right ankle scar; and e) hemorrhoids to determine the nature, severity, and functional impairment these disabilities cause. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his Hepatitis C. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed Hepatitis C is related to an injury or disease during service, to include inoculations received during the Veteran’s service while posted in Hawaii. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.