Citation Nr: 21061701 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-44 866 DATE: October 5, 2021 ORDER New and material evidence having been received, the previously denied claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), generalized anxiety disorder (GAD) and unspecified trauma-related disorder is reopened. New and material evidence not having been received, the claim for service connection for diabetes mellitus, to include as due to Agent Orange exposure is not reopened. The claim for service connection for peripheral neuropathy, left upper extremity, claimed as secondary to diabetes mellitus is denied. Service connection for peripheral neuropathy, right upper extremity, claimed as secondary to diabetes mellitus is denied. Service connection for peripheral neuropathy, left lower extremity, claimed as secondary to diabetes mellitus is denied. Service connection for peripheral neuropathy, right lower extremity, claimed as secondary to diabetes mellitus is denied. REMANDED Service connection for an acquired psychiatric condition, to PTSD, MDD, GAD and unspecified trauma-related disorder is remanded. FINDINGS OF FACT 1. In a final August 2011 rating action, the Regional Office (RO) denied service connection for PTSD. 2. The evidence received since the final August 2011 rating action relates to an unestablished fact necessary to substantiate a claim for service connection for an acquired psychiatric disability, to include PTSD because it shows that the Veteran has been diagnosed as having psychiatric disabilities, to include MDD, GAD and unspecified trauma-related disorder. 3. By a June 2015 rating action, the RO, in part, denied service connection for diabetes mellitus finding that the Veteran had not been diagnosed with this disability. The Veteran did not perfect a timely appeal or submit new and material evidence within one year of that decision; evidence received since the June 2015 rating action does not relate to an unestablished fact necessary to substantiate the underlying claim for service connection for diabetes mellitus. 4. There is no current diagnosis of peripheral neuropathy of the left upper extremity. 5. There is no current diagnosis of peripheral neuropathy of the right upper extremity. 6. There is no current diagnosis of peripheral neuropathy of the left lower extremity. 7. There is no current diagnosis of peripheral neuropathy of the right lower extremity. CONCLUSIONS OF LAW 1. The August 2011 rating action, wherein the RO denied service connection for PTSD, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 20.200, 20.201. 2. The criteria for reopening the Veteran's previously denied claim for service connection for an acquired psychiatric disability, to include PTSD, MDD, GAD and unspecified trauma disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The June 2015 rating action, wherein the RO denied service connection for diabetes mellitus, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 20.200, 20.201. 4. The criteria to reopen the previously denied claim for service connection for diabetes mellitus have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 6. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 7. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 8. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from June 1967 to March 1970, to include service in the Republic of Vietnam from March 1969 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Claims The Veteran seeks to reopen previously denied claims for service connection for PTSD and diabetes mellitus. Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented. If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of an appellant's claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). i) New and Material Evidence having been received, the claim for service connection for an acquired psychiatric disorder, to include PTSD, MDD, GAD and unspecified trauma disorder is reopened Initially, the Board recognizes that the Veteran has presented evidence of multiple psychiatric disorders, including GAD, MDD and unspecified trauma-related disorder. However, for the purposes of determining whether new and material evidence has been received in order to reopen the Veteran's previously denied claim for service connection for PTSD, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C. § 7104 (b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Further, the United States Court of Appeals for Veterans Claims (Court) has recently determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively-after there has been a finding of fact based upon competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009). In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. Therefore, in light of the Court's decision in Clemons and the Board's decision to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD herein, the Board has recharacterized the issue regarding the merits of the Veteran's claim for service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and recognizes that such characterization includes consideration of all currently diagnosed acquired psychiatric disorders. The Board finds that new and material evidence has been received and the claim for service connection for an acquired psychiatric disorder, to include PTSD, MDD, GAD and unspecified trauma disorder is reopened. By way of background, the AOJ denied the Veteran's original claim for service connection for PTSD in August 2011. Since the Veteran neither filed a timely appeal nor submitted new and material evidence within a year of that rating decision, the August 2011 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. VA received the Veteran's petition to reopen his previously denied claim for PTSD on November 24, 2014. By a June 2015 rating decision, the RO reopened the previously denied claim for service connection for PTSD, and denied the claim on the merits because the evidence did not show a current diagnosis of any psychiatric disability, to include PTSD. In December 2015, VA treatment records were received into the record and contain various psychiatric diagnoses, to include unspecified trauma disorder and major depressive disorder (MDD). As new and material evidence was received within the one-year appellate period following the RO's June 2015 rating action, that decision did not become final and the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD remained pending since November 24, 2014, the date of receipt of the Veteran's claim to reopen. Having reopened the claim for service connection for an acquired psychiatric disorder, to include PTSD the Board will address the merits of the claim in the remand section following the decision below. (ii) New and Material Evidence not having been received, the claim for service connection for diabetes mellitus is not reopened. The Veteran seeks to reopen a previously denied claim for service connection for diabetes mellitus. VA received the Veteran's informal claim for service connection for diabetes mellitus, to include as due to Agent Orange exposure on November 21, 2014. The RO denied service connection for diabetes mellitus in a June 2015 rating decision. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the June 2015 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. The evidence added to the record since the June 2015 final rating decision while new as it was not of record at the time of the June 2015 rating action, it is not material. It is not material because it does not relate to an unestablished fact necessary to decide the claim, namely that the Veteran has been diagnosed as having diabetes mellitus. Here, a March 2017 VA treatment note indicated that the Veteran was borderline diabetic but did not diagnose him with diabetes. At a June 2017 VA examination, the Veteran did not have a diagnosis of diabetes. The examiner indicated that the Veteran did not meet the American Disability Act (ADA) requirements for diabetes mellitus. The lay statements received since the 2015 rating decision, asserting that his diabetes mellitus is related to his Agent Orange exposure in the RVN, were already of record and considered at the time of the June 2015 rating decision. Thus, they are not new evidence. Likewise, the Veteran's post-service treatment records are merely cumulative and do not show that he has been diagnosed as having diabetes mellitus, criteria that is relevant to reopening the claim. Therefore, the Board finds that new and material evidence has not been received, and the claim for service connection for diabetes mellitus, to include as due to Agent Orange is not reopened. 38 U.S.C. § 7105; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117. The evidence that was not of record at the time of the RO's June 2015 final rating decision, is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156 . However, the Board finds that this evidence is not material, as it does not relate to an unestablished fact, namely that the Veteran has been diagnosed as having diabetes mellitus. In summary, the new evidence is not material, and does not raise a reasonable possibility of substantiating the claim for service connection for either diabetes mellitus. Accordingly, the claim for service connection for diabetes mellitus is not reopened. Peripheral Neuropathy of the Bilateral and Lower Extremities The Veteran seeks service connection for peripheral neuropathy of the bilateral upper and lower extremities as secondary to his claimed diabetes mellitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110 , 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For certain chronic disorders, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307 , 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. §§ 3.307 (a)(6), (d), 3.309(e). Even if the Board is unable to find that the Veteran is afforded the presumption of herbicide exposure, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection is also warranted for a disability, which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board will deny the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremity because the preponderance of the evidence is against a finding that he has current diagnoses of peripheral neuropathy of his upper and lower extremities. There is no medical evidence of record that supports a current diagnosis of peripheral neuropathy of either the upper or lower extremities. The Board is cognizant of the recent holding in Saunders v. Wilkie, which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. In this case, however, the VA treatment records associated with the claims file consistently reflect no sensory or motor deficits, and there is no evidence that the Veteran experiences any functional limitation or functional impact on ability to work due to his neurological complaints. As such, the Veteran's disabilities do not amount to functional impairment of earning capacity, and Saunders is not applicable in this case. Absent evidence showing a current diagnosis, service connection for peripheral neuropathy of the bilateral upper and lower extremities, on any basis, including as secondary to diabetes mellitus is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REMANDED The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. In an April 2015 Statement in Support of Claim, the Veteran reports a stressor that occurred in June 1969 during a battle that occurred on the base that he was stationed at. He also reported witnessing his platoon's medic take a round in the head during contact with the enemy. The most recent VA examination was completed in April 2015. The examiner evaluated the Veteran and determined that, while he directly experienced the traumatic events he reported, has recurrent, involuntary, and intrusive distressing memories of the traumatic event, reports avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with traumatic events, he did not meet the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-V) criteria for a clinical diagnosis of PTSD. In a May 2017 VA treatment note, the Veteran reported subjective symptoms of anger and anxiety, nightmares, and flashbacks. The Veteran self-reported a diagnosis of PTSD and unspecified anxiety disorder and unspecified depressive disorder. The Veteran was diagnosed with unspecified trauma/stressor-related disorder. No diagnosis of PTSD was noted. Given that the most recent VA examination on this matter was in May 2015, where the Veteran did not have a diagnosis of PTSD or any mental health disorder, a remand is required to determine the current diagnosis, if any, of a psychiatric disorder and the etiology of such disorder. The matters are REMANDED for the following action: 1. The AOJ should seek verification of the Veteran's reported stressors from Joint Services Records Research Center (JSRRC). See April 22, 2015 VA 21-0781, Statement in Support of Claim for PTSD. 2. Schedule the Veteran for a VA psychiatric examination, with a psychiatrist or psychologist. The examiner should diagnose any current Axis-I psychiatric disability. i) If PTSD is diagnosed, the examiner should identify the stressor that the diagnosis is predicated on (to include fear of a hostile military or terrorist activity of the Veteran's confirmed service in Vietnam). ii) If PTSD is not diagnosed, the examiner should answer the following question: Is it at least as likely as not (50 percent or greater) that any current acquired psychiatric disability began during or was otherwise caused by the Veteran's active service? Why or why not? 3. The AOJ must review the claims and ensure that the foregoing development and requested actions have been completed in full. 4. If any development is incomplete, then appropriate and corrective actions must be implemented. Carole R. Kammel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.