Citation Nr: 21076689 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-30 389 DATE: December 27, 2021 ORDER The appeal to reopen a claim of service connection for pulmonary tuberculosis is granted. REMANDED Entitlement to service connection for pulmonary tuberculosis is remanded. Entitlement to service connection for an acquired psychiatric disorder, including depression and anxiety, is remanded. FINDINGS OF FACT 1. A final December 1972 rating decision denied service connection for pulmonary tuberculosis, finding in essence that such disability was not shown to be etiologically related to the Veteran's service. 2. Evidence received since the December 1972 rating decision suggests that the Veteran's pulmonary tuberculosis may be related to her service, relates to an unestablished fact necessary to substantiate the claim of service connection for pulmonary tuberculosis, and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for pulmonary tuberculosis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from March 1965 to March 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 Department of Veterans Affairs (VA) rating decision which, in relevant part, declined to reopen the claims of service connection for pulmonary tuberculosis and an acquired psychiatric disorder. In August 2020, the Board granted the appeal to reopen the claim of service connection for an acquired psychiatric disorder and denied the claims of service connection for tinnitus and an acquired psychiatric disorder (on de novo review). The Veteran appealed the portions of the August 2020 Board decision which denied the appeal to reopen the claim of service connection for pulmonary tuberculosis and service connection for an acquired psychiatric disorder to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an August 2021 Joint Motion for Partial Remand (JMPR) by the parties. An August 2021 CAVC Order remanded the matters for compliance with the JMPR instructions. [The Veteran did not appeal the Board's denial of service connection for tinnitus. Accordingly, that matter is no longer before the Board. Because the August 2020 Board decision reopened the claim seeking service connection for an acquired psychiatric disorder, the Board will proceed to adjudicate that matter on the merits.] 1. The appeal to reopen the claim of service connection for pulmonary tuberculosis is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The CAVC has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed December 1972 rating decision denied service connection for pulmonary tuberculosis on the basis that such disability was unrelated to service. The Veteran did not appeal the decision or submit new and material evidence within the following year, and the decision became final. 38 U.S.C. § 7105. Pertinent evidence of record at the time of the December 1972 rating decision included the Veteran's service treatment records (STRs), June 1972 St. Joseph Hospital treatment records, and an August 1972 Missouri State Chest Hospital report. Evidence received since the December 1972 rating decision includes a May 1973 Missouri State Chest Hospital treatment letter, a May 1973 Missouri State Chest Hospital report, a November 1973 VA examination report, and the Veteran's January 2017 statement relating her 1972-1973 infection to a positive purified protein derivative (PPD) test in April 1965 in service; since she was untreated, she contended that it led to her subsequent infection. Amongst all this evidence, the Board finds the Veteran's 2017 statement both new and material. It is new because it was not in the record in December 1972. It is also material because the Veteran (with a military occupational specialty of hospital corpsman) has some medical training (albeit, full extent unknown) and her statement is presumed credible for the purpose of reopening. [The evidence does not show, however, that she has medical training specific to the nature, etiology, and disease process of infectious respiratory diseases.] Consequently, and considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, the Board finds that the evidence received is both new and material, and that the claim of service connection for pulmonary tuberculosis may be reopened. REASONS FOR REMAND 2. , 3. Entitlement to service connection for pulmonary tuberculosis (on de novo review) and an acquired psychiatric disorder. In the August 2021 JMPR, the parties agreed that the Board erred in declining the appeal to reopen the claim of service connection for pulmonary tuberculosis. They specifically pointed out that the Board used the wrong (December 1973) rating decision (which adjudicated the Veteran's entitlement to non-service connected pension benefits for pulmonary tuberculosis) in determining whether the evidence submitted by the Veteran was new and material. (As such, the Board erroneously decided that the 1973 private medical records submitted by the Veteran in August 2016 were duplicative of the evidence of record.) The parties agreed that the December 1972 rating decision is the correct one and that the Board should address whether the evidence submitted by the Veteran, including the private medical records pertaining to a 1973 hospitalization, is new and material in relation to the December 1972 rating decision. [The Board, hereinabove, granted the appeal to reopen the claim of service connection for pulmonary tuberculosis and will proceed to adjudicate on the merits.] Further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts and evidence to properly adjudicate the now reopened claim for pulmonary tuberculosis. Upon review of the record, the Board finds that a VA examination to secure a medical advisory opinion regarding the nature and likely etiology of the Veteran's pulmonary tuberculosis was, and remains, necessary. An April 1965 STR noted a positive PPD test (5mm) in service. In January 2017, the Veteran submitted a statement relating her pulmonary tuberculosis to the positive PPD test in service. She believes that, had she been treated earlier while in service, the infection would never have progressed to the point of hospitalization in 1972. As noted above, the Veteran has some medical training based on her MOS as hospital corpsman. However, the nature and depth of her training are unknown, and the evidence does not show that she has medical training specific to the nature, etiology, and disease process of infectious respiratory diseases (particularly to determine the etiology of a disease diagnosed 4 years after separation from service). Under these circumstances and considering the low threshold standard for determining when a VA examination to obtain a nexus opinion is necessary, endorsed by the CAVC in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), remand for a VA examination is necessary. The parties to the JMPR also agreed that the Board failed to ensure that VA satisfied the duty to assist, namely in providing a medical examination to ascertain the likely etiology of any diagnosed psychiatric disability. Specifically, they agreed that the Board failed to provide an explanation of inconsistent statements in denying the Veteran the opportunity for an examination and hence "a remand is warranted for Appellant to be provided with a VA examination in accordance with McLendon." (In reopening the claim of service connection for an acquired psychiatric disorder, the Board concluded that the evidence submitted showed the Veteran's acquired psychiatric disorder may have had its onset during service or otherwise be related to service. However, the Board also determined the third element of McLendon was not satisfied because the evidence of record did not indicate that the Veteran's acquired psychiatric disorder may be associated with her service.) Considering the agreement by the parties regarding a possible association between her current condition and service, the Board finds that the "low threshold standard" in McLendon is met. Accordingly, an examination to ascertain the nature and likely etiology of the Veteran's claimed psychiatric disability is necessary. [The Board acknowledges that the parties to the JMPR found the Board failed to provide an explanation as to why the evidence (including lay statements) is adequate to reopen the claim of service connection for an acquired psychiatric disability but not satisfy the third element of McLendon. The Board specifically points out that statements made in a claim to reopen are presumed credible for the purpose of reopening; such is a different adjudicatory standard than that required under the duty to assist and furthermore necessary to substantiate a claim on the merits.] The matters are REMANDED for the following: 1. Arrange for a pulmonary examination of the Veteran to ascertain the nature and likely etiology of her pulmonary tuberculosis. The entire record (to specifically include this remand, the April 1965 STR notation of a 5mm PPD in service, and the infection in 1972) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a.) Confirm whether or not she has a diagnosis of residuals of pulmonary tuberculosis during the pendency of the instant claim. (b.) If the Veteran has residuals of pulmonary tuberculosis, identify the likely etiology of her pulmonary tuberculosis. Specifically, is it at least as likely as not (a 50% or greater probability) that her disability was incurred during her service? The rationale for this opinion must address whether the April 1965 PPD test indicates that the Veteran is positive for pulmonary tuberculosis and whether her 1972 infection (causing her hospitalization) is related to that positive PPD notation in service. (c.) If the 1965 PPD test indicates a positive test of pulmonary tuberculosis but the 1972 infection is deemed not related to it, explain why (with rationale). If the answer to this question involves a finding that the 1965 PPD test was a false positive, explain why. (For example, has there been a change in testing protocols or a change in medical knowledge/research since?) 2. Arrange for a psychiatric examination of the Veteran to ascertain the nature and likely etiology of her claimed psychiatric disability. Based on review of the record (including this remand) and examination of the Veteran, the examiner should provide opinions that respond to the following: (a.) Identify by diagnosis each psychiatric disability found or shown by the record during the appeal period (from August 2016 to present). (b.) Identify the likely etiology for each psychiatric disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that any disability diagnosed is etiologically related to the Veteran's service? The rationale for this opinion must address: a. In-service suicide attempts in January 1966 and April 1967 b. March 1968 service separation examination which notes a clinically normal psychiatric evaluation c. July 2010 VA psychiatric treatment record which notes the Veteran reported attempted suicide in service "when she felt homesick and unable to leave the base." d. The Veteran's January 2017 notice of disagreement in which she reported that her depressive disorder began in service and has continued since separation from service. (c.) If the psychiatric disability is determined to be unrelated to service, identify the etiology of the disability that is considered to be more likely and explain why that is so. (Continued on the next page) The examiner must include rationale for all opinions, citing to supporting factual data and medical literature/treatise as deemed appropriate. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.