Citation Nr: 21065767 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-47 782 DATE: October 27, 2021 ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder is reopened. New and material evidence having been received, the claim for service connection for residuals of a cerebrovascular accident (stroke) is reopened. Service connection for residuals of a cerebrovascular accident (stroke) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, attention deficit disorder (ADD), attention deficit/hyperactivity disorder (ADHD), posttraumatic stress disorder (PTSD), hyperactivity, and cognitive dissonance, is remanded. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. New and material evidence has been received since the last final denial for an acquired psychiatric disorder in December 2008, including updated medical records and lay statements. 2. New and material evidence has been received since the last final denial for residuals of a stroke in December 2008, including updated medical records and lay statements. 3. The preponderance of evidence does not support a finding of an in-service event, injury or disease related to a stroke or residuals of a stroke. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously denied claim of service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen the previously denied claim of service connection for a cerebrovascular accident. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for residuals of a stroke are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May to August 1986, with reserve service spanning from January 1985 to January 1993. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In her September 2017 VA Form 9, the Veteran requested a hearing before the Board via videoconference from her local VA office. However, in March 2021, the Veteran wrote the Board and stated that she no longer wanted a hearing, and she requested the case be decided. As such, the Board will proceed to the adjudicate this appeal without a hearing. Additionally, the Veteran had AMVETS as her representative, but they revoked their representation in March 2015. The Veteran has not appointed another representative so she will be representing herself. The claims certified to the Board include two acquired psychiatric disorders issue. One for PTSD and one for attention deficit disorder, which the Veteran has also described the latter as cognitive dissonance with memory loss. A preliminary review of the evidence of record shows that the Veteran has a long history of treatment for numerous mental health conditions including clinical diagnoses of depression, ADD, ADHD, and PTSD. Accordingly, the Board will reopen and recharacterized the issue on appeal as a single issue which encompasses each of these additional diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). New and Material Evidence The Board is required to address petitions to reopen previously denied claims on the basis of new and material evidence in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the Agency of Original Jurisdiction (AOJ) may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will proceed in the following decision to adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). 1. New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder is reopened. The Veteran's claims for service connection for ADD/ADHD and for PTSD were denied by a rating decision in December 2008. This rating decision denied ADD/ADHD due to lack of complaints or treatment in her service treatment records and the failure to provide post-service medical evidence of treatment. It denied PTSD due to lack of a diagnosis per the Diagnostic and Statistical Manual of Mental Disorders and lack of supporting evidence of an in-service stressor. The Veteran did not appeal that decision during the required period and the decision became final. Since the 2008 rating decision, VA has received new evidence in the form of updated medical records from numerous medical facilities, and lay statements from the Veteran. For example, a November 2015 letter from T.M.C., MD, indicates that the Veteran has bipolar disorder, PTSD, and ADD. This evidence is new in that it has not previously been considered by VA. It is material in that it relates to an unestablished fact necessary to substantiate the claim; namely, clinical diagnoses and treatment for psychiatric disorders. New and material evidence having been received, the petition to reopen the claim for service connection for an acquired psychiatric disorder is granted. 2. New and material evidence having been received, the claim for service connection for residuals of a stroke is reopened. The Veteran's claim for service connection for residuals of a stroke was denied by a rating decision in December 2008. The rating decision found that the evidence did not show treatment for residuals of a stroke from the date of the Veteran's discharge to the present. The Veteran did not appeal that decision during the required period and the decision became final. Since the 2008 rating decision, VA has received new evidence in the form of updated medical records from numerous medical facilities, and lay statements from the Veteran. For example, the Veteran's lay statement in May 2013 described her problems with memory, dizzy spells and balance. May 2013 VA Form 21-4138 Statement in Support of Claim. Medical records received by VA in July 2013 showed treatment for the Veteran's symptoms with consideration of a stroke in March 2008. July 2013 Medical Treatment Record Non-Government Facility, at 19 (May 2008 record). The evidence is new in that it has not been previously considered by VA. It is material in that it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). New and material evidence having been received, the petition to reopen the claim for service connection for residuals of a stroke is granted. Since the last final denial, the RO has considered the Veteran's claim on the merits. See August 2017 Statement of the Case; and January 2018 Supplemental Statement of the Case. Thus, the Board may address the Veteran's reopened claim for service connection on appeal without prejudice to the Veteran. 3. Entitlement to service connection for residuals, cerebrovascular accident (stroke) is denied. The Veteran seeks service connection for residuals of a stroke. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the present case, the record shows that the Veteran was a registered nurse for at least 21 years. Thus, the Veteran has a degree of medical training and experience. However, she has offered any medical opinions, diagnoses, or etiology opinions regarding residuals of a stroke. The Board will consider her lay statements relevant to this issue and weigh them appropriately. A review of the medical evidence shows that the Veteran suffered a stroke in March 2008. 7/6/2013 Medical Treatment Record Non-Gov't, at 19. Thus, the first Shedden requirement is satisfied. However, the record does not show evidence in support of the remaining Shedden requirements. The Veteran's service treatment records do not show an in-service event or incurrence related to a stroke, and the Veteran has not asserted any such event or incurrence. Her claim arose from correspondence received by VA in August 2008 claiming entitlement to disability benefits for "a stroke" listed among several other medical conditions, with no further explanation. Subsequent correspondence from the Veteran has not provided any further information in support. The preponderance of evidence does not support a finding that the Veteran experienced any in-service event, injury or disease which may have led to her post-service stroke in 2008. The second Shedden requirement is not met. The Veteran has not received a VA examination for this issue. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, four factors are for consideration: (1) competent evidence of a current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) indication that the current disability may be associated with an in-service event; and (4) sufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). Here, the evidence does not show an in-service event, injury or disease during her active duty time related to a post-service stroke. Additionally, the record does not tend to show nor has the Veteran submitted evidence indicating that the post-service stroke is related to an event, incurrence, disease, or injury during service. The Board therefore concludes that, based on the lack of all the McLendon factors, a VA examination is not required in the present case. As the preponderance of evidence weighs against the claim, the benefit of the doubt doctrine is not for application, and the claim for service connection is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, ADD, ADHD, PTSD, hyperactivity, and cognitive dissonance, is remanded. As discussed previously, the Board has recharacterized the Veteran's multiple acquired psychiatric disorders as a single service connection issue encompassing numerous mental health diagnoses. The Veteran has not received a VA examination of her mental health. Here, application of the McLendon factors shows such an examination is necessary before the Board may adjudicate this issue. The Veteran has numerous past clinical diagnoses of acquired psychiatric conditions, as listed above. She has asserted to her doctors that at least some of her mental health symptoms arose during service and have worsened since that time. See April 2014 Medical Treatment Record Non-Government Facility (p. 11, March 22, 2013 record, describing the timing of PTSD and ADD symptoms "since military service"). She has also stated that several nervous breakdowns and episodes of hearing voices, including voices urging her to commit suicide, are tied to her past work in Army communications in a psychological operations unit. See October 2013 Medical Treatment Records Furnished by SSA (p. 46, July 31, 2008 record). She has alleged flashbacks to her military service. See May 2013 VA Form 21-4138 Statement In Support of Claim; and see April 2014 Medical Treatment Record Non-Government Facility (p. 6, September 29, 2008 record). A preliminary review of the medical evidence also shows a letter from the Veteran's private treating physician, who wrote that he has treated the Veteran for "symptoms of PTSD" since August 2006, and that the Veteran's flashbacks "seem to be related to her military experience." See March 2018 Status Letter, at 5. The Board finds that this letter is insufficient to support a grant of service connection for PTSD, as it does not contain a clear diagnosis or a supporting rationale linking the present condition to military service. Nonetheless, the physician's opinion provides an indication that her one or more of her current acquired psychiatric disorder may be related to her active duty service. As such, VA's duty to provide a VA examination for her acquired psychiatric conditions is triggered. McLendon, 20 Vet. App. at 81-85. The claim is remanded for a medical examination and readjudication. 2. Entitlement to a TDIU is remanded. The Board finds that entitlement to a TDIU is inextricably intertwined with the resolution of the claim for service connection for an acquired psychiatric disorder. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board requests that the Veteran complete another VA Form 21-8940 as the one of record was completed in May 2013 and employment and/or education may have changed since that time. Accordingly, this matter is remanded for readjudication following evidentiary development. These matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA mental health disorder examination to determine the nature and etiology of any present acquired psychiatric disorders. The examiner should indicate review of the Veteran's complete claim file. This examiner is asked to list all acquired psychiatric disorders since the Veteran filed her claim in October 2011. In this regard, the examiner's opinion should directly address the Veteran's psychological diagnoses of record, including depression, attention deficit disorder, attention deficit/hyperactivity disorder, and posttraumatic stress disorder, as well as the Veteran's claims of hyperactivity and cognitive dissonance. --Then, for each acquired psychiatric disorder diagnosed, the examiner is to provide a statement of whether the acquired psychiatric disorder at least as likely as not (approximately 50 percent probability) originated during military service or is otherwise related to military service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of her employment history and her educational background for proper adjudication of this claim. Readjudicate the Veteran's claim accordingly. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.