Citation Nr: 21066512 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-36 814 DATE: November 1, 2021 ORDER New and material evidence having been received, the claim of service connection for an acquired psychiatric disability, to include PTSD and schizoaffective disorder, is reopened. New and material evidence having been received, the claim of service connection for residuals of a head disability is reopened. New and material evidence having been received, the claim of service connection for an eye disability, including cataracts, is reopened. REMANDED Entitlement to service connection for difficulty swallowing is remanded. Entitlement to service connection for a broken nose is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right hand disability is remanded. Whether new and material evidence has been received to reopen the claim of service connection for sinusitis is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and schizoaffective disorder, is remanded. Entitlement to service connection for a bilateral eye disability, to include cataracts, is remanded. Entitlement to service connection for a head disability is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDINGS OF FACT 1. New evidence received since the time of the final January 1997 decision relates to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and schizoaffective disorder. 2. New evidence received since the time of the final October 1989 decision relates to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for residuals of a head injury. 3. New evidence received since the time of the final June 1983 decision relates to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for an eye disability, including cataracts. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disability, to include PTSD and schizoaffective disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim of service connection for residuals of a head injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim of service connection for an eye disability, including cataracts. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to January 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the Veteran was afforded a hearing before the undersigned in June 2021, and a hearing of said transcript is of record. New and Material Evidence Generally, a claim that has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). 1. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disability, to include PTSD and schizoaffective disorder In order to more accurately reflect the nature of the Veteran's disability, the Board has expanded the claim to one for entitlement to service connection for an acquired psychiatric disability, to include PTSD and schizoaffective disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). These changes are reflected on the title page and provide the most favorable review of the Veteran's claim in keeping with the holding in Clemons. The AOJ issued a rating decision in January 1997 denying service connection because no evidence of an in-service diagnosis or nexus to service were found. The Veteran did not submit any statements disagreeing with the January 1997 findings within the prescribed period of time, and the rating decision, therefore, became final. The evidence of record at the time of the January 1997 rating decision included the Veteran's service treatment records, a VA examination dated in June 1979, and some post-service VA and private treatment records. It is noted that the 1979 VA examiner noted that the Veteran's drug abuse may be a factor in his altered mental state, but made no conclusions about the nature and etiology of his psychiatric disability. The Veteran also underwent an examination in April 1983 indicative that service records show difficulty with anxiety, depression and insomnia as early as 1973. Also acknowledged was a diagnosis of paranoid schizophrenia of record. The records received since the January 1997 decision include ongoing VA clinical and private treatment records, which indicate clear diagnosis and treatment of schizoaffective disorder with medications; a positive PTSD screen in May 2018; a private disability benefits questionnaire of December 2014, clearly diagnosing the Veteran with PTSD and schizophrenia, and opining that these are more likely than not related to service; as well as the Veteran's sworn testimony before the undersigned indicating continuous psychiatric symptomatology since service, and a description of in-service sexual assault. 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, as previously noted, the credibility of the new evidence is presumed. As the Veteran provided credible lay testimony as to continuity of his psychiatric symptomatology in service and since service, and there is medical evidence going to the question of nexus as well, the Board finds that this evidence is both new and relates to an unestablished fact necessary to substantiate the claim. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted, and the claim is reopened. 2. Whether new and material evidence has been received to reopen the claim of service connection for residuals of a head disability The AOJ issued an original rating decision in June 1983 denying service connection because no nexus to service was found. Thereafter, the Veteran submitted a petition to reopen the claim in September 1985, and a rating decision was issued in October 1989, stating there was no new evidence to reopen the claim, and that the first VA examinations following discharge did not indicate residuals of a head injury. The Veteran did not submit any statements disagreeing with the October 1989 findings within the prescribed period of time, and the rating decision, therefore, became final. The evidence of record at the time of the October 1989 rating decision included the Veteran's service treatment records including treatment of viral encephalitis in September 1975, a VA neuropsychiatric examination dated in June 1979, some post-service VA and private treatment records and an April 1983 VA examination. It is noted that the 1979 VA examiner noted the Veteran's reports that he experienced headaches since service, but concluded that there were insufficient findings for a diagnosis. The Veteran also underwent an examination in April 1983 indicative that 1975 service records show a diagnosis of encephalitis and discharge from hospitalization without definite neurological problems; and the examiner confirmed a current diagnosis of encephalitis. The records received since the October 1989 rating decision include ongoing VA clinical and private treatment records, which indicate clear diagnosis and treatment of encephalitis, chronic post traumatic headache, and traumatic brain injury. See September 2014 VA medical records and March 2016 VA examination. In addition, the Veteran testified before the undersigned, indicating continuous headache symptomatology since service, and a description of in-service injuries to the head including while boxing. Finally, while the March 2016 VA TBI examiner opined that the TBI is less likely than not related to service, it was also opined that the Veteran's headaches are likely related to encephalitis, respiratory infections since service. The Board notes that the Veteran has claimed service connection for sinusitis as well as a broken nose which are remanded herein. Furthermore, 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). As previously noted, the credibility of the new evidence is presumed. As the Veteran provided credible lay testimony as to continuity of his symptomatology in service and since service, the Board finds that this evidence is both new and relates to an unestablished fact necessary to substantiate the claim. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted, and the claim is reopened. 3. Whether new and material evidence has been received to reopen the claim of service connection for an eye disability, including cataracts The AOJ issued an original rating decision in August 1979 denying service connection because no nexus to service was found as well as no ocular pathology. Thereafter, the Veteran submitted a petition to reopen the claim in June 1981, and a rating decision was issued in June 1983, stating there was no new and material evidence received to reopen the claim. The Veteran did not submit any statements disagreeing with the June 1983 findings within the prescribed period of time, and the rating decision, therefore, became final. The evidence of record at the time of the June 1983 rating decision included the Veteran's service treatment records, an eye examination dated in June 1979, some post-service VA and private treatment records and an April 1983 VA examination. The April 1983 examination reflects the Veteran's reports of blurry vision, and an assessment of refractive error, blepharitis and benign Bergmeister's Papilla. The records received since the June 1983 rating decision include ongoing VA clinical and private treatment records, as well as a March 2016 VA examination which confirms diagnoses of bilateral glaucoma and bilateral presbyopia. The Veteran reported he was hit in the head and eyes many times while in service. While the VA examiner's opinion was negative, the reasoning was based on silence of service records. In addition, the Veteran testified before the undersigned, indicating continuous eye symptomatology since service, and a description of in-service injuries to the head and eyes including while boxing. The Board notes that the Veteran has claimed service connection for sinusitis as well as a broken nose which are remanded herein. Furthermore, 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). As previously noted, the credibility of the new evidence is presumed. As the Veteran provided credible lay testimony as to continuity of his symptomatology in service and since service, the Board finds that this evidence is both new and relates to an unestablished fact necessary to substantiate the claim. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted, and the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for difficulty swallowing is remanded. 2. Entitlement to service connection for a broken nose is remanded. 3. Entitlement to service connection for a left hand disability is remanded. 4. Entitlement to service connection for a right hand disability is remanded. 5. Whether new and material evidence has been received to reopen the claim of service connection for sinusitis is remanded. 6. Entitlement to service connection for a right hip disability is remanded. 7. Entitlement to service connection for Hepatitis C is remanded. Regarding the claims of entitlement to service connection for difficulty swallowing; a broken nose; a bilateral hand disability; a right hip disability; Hepatitis C; and whether new and material evidence has been received to reopen the sinusitis claim; the Veteran submitted a timely notice of disagreement with September 2013 and June 2015 rating decisions, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case addressing these issues. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 8. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and schizoaffective disorder is remanded. Having reopened the previously denied claim for service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder, the Board finds that additional development is warranted in this case before a decision may be rendered. Specifically, an addendum medical opinion should be obtained. The Veteran submitted a private disability benefits questionnaire of December 2014, clearly diagnosing the Veteran with PTSD and schizophrenia, and opining that these are more likely than not related to service; as well as sworn testimony before the undersigned indicating continuous psychiatric symptomatology since service, and a description of in-service sexual assault. A VA examination was scheduled for the Veteran in May 2015. However, the Veteran failed to appear. Nonetheless, the Veteran submitted a statement that he was unable to attend the examination due to incarceration. Here, the Board finds that the Veteran has provided good cause for his failure to attend the examination. However, the Veteran is notified that it is his responsibility to report for any future examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.15, 3.655. Under 38 C.F.R. § 3.655(b), if a Veteran does not appear at a scheduled VA examination that is required in order to adjudicate a claim, VA may proceed with the adjudication of the claim. 9. Entitlement to service connection for a bilateral eye disability, to include cataracts, is remanded. Having reopened the previously denied claim for service connection for a bilateral eye disability, the Board finds that additional development is warranted in this case before a decision may be rendered. Specifically, an addendum medical opinion should be obtained. When VA undertakes to obtain an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion or examination is considered adequate where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Of record is a March 2016 VA examination which confirms diagnoses of bilateral glaucoma and bilateral presbyopia. The Veteran reported he was hit in the head and eyes many times while in service. The Board finds the March 2016 VA examination inadequate. While the VA examiner's opinion was negative, the reasoning was based exclusively on silence of service records. The absence of evidence of a disability in service is not fatal to a veteran's claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In addition, the Veteran testified before the undersigned, indicating continuous eye symptomatology since service, and a description of in-service injuries to the head and eyes including while boxing. The Board finds the Veteran's testimony to be credible. As such, an addendum VA opinion should be obtained that offers a thorough, well-reasoned opinion regarding all of the Veteran's eye symptoms, regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 10. Entitlement to service connection for a head injury is remanded. Having reopened the previously denied claim for service connection for a head disability, the Board finds that additional development is warranted in this case before a decision may be rendered. Specifically, an addendum medical opinion should be obtained. When VA undertakes to obtain an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion or examination is considered adequate where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board finds the March 2016 VA examination inadequate. Of record is a March 2016 VA examination which confirms a diagnosis of TBI and acknowledges the Veteran's headaches. While the examiner opined that the TBI is less likely than not related to service, it was also opined that the Veteran's headaches are likely related to encephalitis and respiratory infections since service. September 2014 VA treatment records document diagnoses of encephalitis and chronic post traumatic headache in addition to the Veteran's TBI. The March 2016 VA examiner did not address these disabilities, and as a result, there is no probative etiological opinion of record regarding the Veteran's claimed head disabilities other than TBI. In addition, the Veteran testified before the undersigned, indicating continuous head symptomatology since service, and a description of in-service injuries to the head and eyes including while boxing. The Board finds the Veteran's testimony to be credible. Finally, the Board notes that during the same hearing before the undersigned, it was suggested by the Veteran that his head symptoms may be caused by other service-connected disabilities. As such, an addendum VA opinion should be obtained that offers a thorough, well-reasoned opinion regarding all of the Veteran's symptoms, regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 11. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. The Veteran's acquired psychiatric disability is among the disabilities he contends render him unable to secure substantially gainful employment. Thus, his TDIU claim is inextricably intertwined with the remanded claim herein, and consideration of entitlement to a TDIU must be deferred until the intertwined issue is resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issues of service connection for difficulty swallowing; a broken nose; a bilateral hand disability; a right hip disability; Hepatitis C; and whether new and material evidence has been received to reopen the sinusitis claim. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 2. Obtain and associate any outstanding VA and private medical records pertinent to the remanded claims. 3. Thereafter, obtain addendum medical opinions from appropriate medical professionals to determine the nature and etiology of the Veteran's claimed psychiatric, eye and head disabilities, however diagnosed. The entire claims file, to include a complete copy of this remand, must be made available to, and reviewed by, the designated examiner. If additional examination is deemed necessary, such must be arranged. a. Acquired Psychiatric Disabilitythe examiner must first confirm whether any of the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis and opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's PTSD is related to his service. If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner must reconcile this finding with the diagnosis of PTSD assigned to the Veteran by his private treatment provider. The examiner must then list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not that any diagnosed psychiatric disorder either began during or was otherwise caused by the Veteran's military service. In rendering this opinion, the examiner must specifically comment on the Veteran's lay statements of record, including his discussion during the June 2021 hearing of the in-service assault, and must discuss the positive etiological opinion of December 2014. b. Head Disabilitythe examiner must list all diagnosed head injuries and disorders the Veteran experiences, and specifically state whether it is at least as likely as not that any diagnosed disorder either began during or was otherwise caused by the Veteran's military service. In rendering this opinion, the examiner must specifically comment on the Veteran's lay statements of record, including his boxing and assaults in service, and the encephalitis and chronic post traumatic headache diagnoses of record. c. Eye Disabilitythe examiner must list all diagnosed eye disabilities the Veteran experiences, and specifically state whether it is at least as likely as not that any diagnosed disorder either began during or was otherwise caused by the Veteran's military service. In rendering this opinion, the examiner must specifically comment on the Veteran's lay statements of record, including his boxing and assaults in service, and the cataract, presbyopia, glaucoma, refractive error, blepharitis and benign Bergmeister's Papilla diagnoses of record. The examiners are advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating any requested opinion. If the examiners reject the Veteran's reports, the examiners must provide a rationale for doing so. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.