Citation Nr: 21015923 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-32 744 DATE: March 18, 2021 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for schizophrenia is granted. New and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than PTSD is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a broken jaw bone with nerve removal and slurred speech is remanded. FINDING OF FACT 1. The RO previously denied the Veteran’s claim of entitlement to service connection for schizophrenia and PTSD in a January 2006. The Veteran was notified of the decision, but he did not appeal, and that decision is final. 2. Evidence obtained since the January 2006 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 3. Evidence obtained since the January 2006 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. CONCLUSION OF LAW 1. The January 2006 rating decision which denied entitlement to service connection for schizophrenia is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The January 2006 rating decision which denied entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received in order to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received in order to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to April 1973. In June 2020, the Veteran testified before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. Notably, the Board has characterized the issue concerning whether new and material evidence has been submitted as a claim for an acquired psychiatric disorder since the claimed conditions have been adjudicated interchangeably since 1995. However, as the Board is reopening the claims and inn accordance with the United States Court of Appeals for Veterans Claims (the Court) holding in Clemons v. Shinseki 23 Vet. App. 1, 5 (2009), the Board has characterized the issues as two separate psychiatric disabilities, one for PTSD and one for an acquired psychiatric disorder, other than PTSD. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the Regional Office (RO) initially considered and denied the Veteran’s claims for PTSD and an acquired psychiatric disorder, claimed as schizophrenia, together in a November 1995 rating decision. In April 2001, the Veteran again filed a petition to reopen the psychiatric claims, which were again denied on the basis that evidence of a nexus or in-service incurrence had not been submitted. In July 2005, the RO confirmed the previous denial. After the issuance of that rating decision, additional service treatment records were received, and the RO again denied the claims on a de novo basis in a January 2006 rating decision. 38 C.F.R. § 3.156(c). The Veteran did not file a notice of disagreement with this determination. As no further action was pursued, the January 2006 decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). At the time of the prior January 2006 determination, the evidence included the Veteran’s service treatment records (STRs) that failed to show any in-service diagnoses or treatment. Further, the RO found that while the Veteran submitted a statement from Dr. C. showing psychiatric treatment, there was no evidence of a nexus for the diagnosed PTSD or schizophrenia to the Veteran’s military service. The Veteran filed a petition to reopen this claim in June 2012, which was denied in a July 2013 rating decision on the basis that the Veteran failed to report for a VA examination, therefore, there is no nexus of the claimed disorders to service. Since the prior January 2006 rating decision, in relevant part, the evidence of record includes the report of a May 2012 VA treatment record indicating that the Veteran suffers from PTSD due to personal assault. The RO acknowledged that the Veteran’s service personnel records included a possible maker in the form of behavioral changes that may indicate assault. Further, during the Veteran’s June 2020 hearing, he also discussed experiencing an in-service assault when he would be drilled, tortured, and swapped around other platoons. The Veteran also testified that it was his belief the things that happened during service aggravated his pre-existing childhood trauma. Specifically regarding the schizophrenia, the RO determined there was no evidence of a nexus to service or in-service incurrence. However, the VA treatment records dated since 2006 indicate ongoing psychiatric treatment that does not clearly differentiate the symptoms between PTSD and schizophrenia and that routinely references his military service as the cause of his disorders. See August 2011 VA Treatment Record. Finally, the Board notes that in the record there is a Report of Contact, dated in July 2013, several days prior to the issuance of the rating decision presently on appeal, informing the RO that he was unable to attend his VA examination appointment due to a transportation issue and would like to reschedule. See July 2013 Report of Contact. Therefore, based on this evidence and the testimony, the Board finds that there is a possible nexus to service, and reopening of the claims for service connection for PTSD and an acquired psychiatric disorder is accordingly warranted. To this extent only, the appeal is granted. REASONS FOR REMAND 1. An acquired psychiatric disorder, other than PTSD The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, claimed as schizophrenia, that he believes is due to his military service. The Veteran also testified that it was his belief the things that happened during service aggravated his pre-existing childhood trauma. The record reflects a diagnosis of schizoaffective disorder resulting from his military service. See August 2011 VA Treatment Record. Additionally, an October 2009 VA treatment record notes a diagnosis of schizophrenia. The Veteran was previously scheduled for a VA examination to determine the nature and etiology of any diagnosed psychiatric disorder in June 2013, however, he failed to report. In July 2013, several days prior to the issuance of the rating decision on appeal, the Veteran stated he would like his examination rescheduled as he was unable to attend due to transportation problems. See July 2013 Report of Contact. As the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran’s diangosed acquired psychiatric disorders are due to or aggravated by the Veteran’s military service, and because the Board finds good cause has been presented as to why the Veteran previously failed to report, a remand is required. 2. PTSD The Veteran is seeking entitlement to service connection for PTSD, to include as due to personal assault, that he believes is due to his military service. The record reflects a diagnosis of PTSD resulting from his military service. See August 2011 VA Treatment Record. Further, the evidence of record includes the report of a May 2012 VA treatment record indicating that the Veteran suffers from PTSD due to personal. The RO acknowledged that the Veteran’s service personnel records included a possible maker in the form of behavioral changes that may indicate assault. Additionally, during the Veteran’s June 2020 hearing, he also discussed experiencing in-service assault when he would be drilled, tortured, and swapped around other platoons. The Veteran also testified that it was his belief the things that happened during service aggravated his pre-existing childhood trauma. The Veteran was previously scheduled for a VA examination to determine the nature and etiology of any diagnosed psychiatric disorder, including PTSD, in June 2013, however, he did not report. In July 2013, several days prior to the issuance of the rating decision on appeal, the Veteran stated he would like his examination rescheduled as he was unable to attend due to transportation problems. See July 2013 Report of Contact. As the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran’s diagnosed PTSD is due to or aggravated by the Veteran’s military service, and because the Board finds good cause has been presented as to why the Veteran previously failed to report, a remand is required. 3. Entitlement to compensation under 38 U.S.C. § 1151 The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for residuals of a dental procedure conducted by the VA in September 2010. Specifically, the record indicates the Veteran had a tooth extraction done in March 2008 at a VA facility which broke his jaw. As a result, he had a subsequent surgery in September 2010 for left inferior alveolar nerve injury, which resulted from that 2008 surgery. The Veteran is arguing that as a result of the surgeries, he now slurs his words and he does not have feeling in his jaw. See December 2011 Statement in Support of Claim; see also June 2020 Board Hearing Transcript. In December 2012, the Veteran was scheduled for a VA examination regarding this claim. The examiner noted facial pain and speech that is difficult to understand. The examiner stated that while the claimed disability may have been caused by the procedure, these procedures have known complications and the patient consented for all procedures. However, the examiner also acknowledged that there were no available radiographs for the examination which limited his ability to form an opinion as to whether there was carelessness, negligence, or lack of skill factor in this case. Nevertheless, from a review of the file, the examiner stated he did not believe it to be the case. Further, the examiner stated it was difficult to say that additional disabilities results from the procedure because a speech therapist found no deficits in speech. Therefore, there was no failure on the part of VA to timely diagnose or treat the Veteran, and he has been seen on a very regular basis to treat the complications. The Board finds that the December 2012 VA examination is inadequate. The VA examiner failed to specifically identify if an additional disability exists as a result of the Veteran’s 2008 and 2010 surgical procedure, including the resulting slurred speech and facial numbness, as the Veteran contends. Further, the examiner noted that due to the lack of radiograph evidence, he is limited in his ability to form an opinion whether there was carelessness, negligence, or lack of skill factor in this case. Therefore, on remand, the Veteran should be provided with a VA examination to determine whether the Veteran has an additional disability that is directly and causally related to VA medical care received by the Veteran when he underwent dental treatment in 2008 and/ or 2010. The examiner must also provide an adequate medical opinion regarding whether in the course of treatment the VA either (i) failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. A medical opinion regarding whether a reasonable health care provider would have foreseen the Veteran’s slurred speech and facial numbness as a result of his treatment must also be obtained. Accordingly, a VA medical opinion is necessary to provide an opinion as to whether the Veteran’s reports of slurred speech and facial numbness constitute additional disabilities under 38 U.S.C. § 1151, and, if so, whether in furnishing that course of treatment VA either failed to exercise the degree of care that would be expected of a reasonable health care provider. Further, the Veteran requested that VA obtain information relating to the December 2012 VA examiner’s credentials. In Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit clarified that although there is a presumption of competence, if the veteran challenges the competence of the medical examiner, VA must “satisfy its burden of persuasion as to the examiner’s qualifications.” Id. Therefore, remand is required for the Board to furnish the curriculum vitae and other information about the qualifications of the medical examiner as part of VA’s duty to assist. Id. The matters are REMANDED for the following action: 1. Send the Veteran’s attorney the curriculum vitae and other information about the qualifications of the December 2012 VA medical examiner. 2. Obtain an additional VA or private treatment records, to include Texas Department of Corrections, if in existence. Further, any additional records pertaining to the Veteran’s surgical procedures in 2008 and 2010 must be obtained. All efforts to do so must be documented in the claims file. 3. Schedule the Veteran for a VA examination concerning all psychiatric claims. A complete rationale for all opinions offered must be provided. The examiner is asked to determine the following: (a.) Identify any and all currently diagnosed psychiatric disorders, to include schizophrenia, schizoaffective disorder, and PTSD. (b.) Did the Veteran have a psychiatric disorder that clearly and unmistakably exist prior to the Veteran’s entrance onto active duty? When answering this question, please phrase it as either “the Veteran’s (insert diagnosed psychiatric disorder) (did/ did not) clearly and unmistakably exist prior to the Veteran’s entrance onto active duty.” (c.) If the examiner determines that the Veteran did have a psychiatric disorder prior to the Veteran’s entrance onto active duty, the examiner should state an opinion as to whether the identified disorder clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was in the natural progression of the disease. (d.) Alternatively, if the examiner determines that the Veteran did not have a psychiatric disorder that existed prior to the Veteran’s entrance into active duty, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any disorder is related to service. (e.) Regarding the PTSD due to assault, the examiner must opine whether the evidence of record, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service pursuant to 38 C.F.R. § 3.304 (f)(5). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Schedule the Veteran for a VA examination to address his claim of slurred speech and facial numbness as a result of VA treatment in 2008 and 2010. The examiner is asked to address the following: (a.) Is it at least as likely as not that the Veteran had additional disabilities including slurred speech and facial numbness due to the VA treatment in 2008 and 2010? (b.) Is at least as likely as not that any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider)? (c.) Based upon the specific facts and circumstances of this Veteran’s case, was any additional disability a reasonably foreseeable outcome of the dental treatment? In rendering this opinion, the examiner should address whether a “reasonable health care provider” would have considered the Veteran’s additional disability to be an ordinary risk of the treatment provided and would have disclosed such risk related to the treatment, regardless of what risks the treating physician foresaw and disclosed in the informed consent forms. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.