Citation Nr: 21016041 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-26 908 DATE: March 19, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depression is granted. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for a right arm disability, to include as secondary to service-connected fibrocystic breast with right axilla adenopathy, is granted. REMAND Entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression, is remanded. Entitlement to service connection for a right arm disability, to include as secondary to service-connected fibrocystic breast with right axilla adenopathy, is remanded. Entitlement to a compensable rating for service-connected fibrocystic breast with right axilla adenopathy is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file since the May 2013 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression. 2. The evidence associated with the claims file since the May 2013 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for a right arm disability, to include as secondary to service-connected fibrocystic breast with right axilla adenopathy. CONCLUSIONS OF LAW 1. The criteria for reopening of the claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression, are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 19.20, 19.21, 19.52(a). 2. The criteria for reopening of the claim for entitlement to service connection for a right arm disability, to include as secondary to service-connected fibrocystic breast with right axilla adenopathy, are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 19.20, 19.21, 19.52(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to April 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A Board hearing was conducted via videoconference in conjunction with the RO in Montgomery, Alabama. A transcript of this hearing is contained within the electronic claims file. See January 22, 2021, Hearing Transcript (Tr.). While the undersigned Veterans Law Judge (VLJ) characterized the issues on appeal as ones for direct service connection, the Board will explain below why the pending claims must be characterized as ones to reopen, which require the submission of new and material evidence. VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is 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 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). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The United States Court of Appeals for Veterans Claims (CAVC) has held that 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117–18 (2010). Furthermore, the Court has held that evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (holding that the “RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C. §] 7104.”). The Board should proceed on the merits only where it has secured a waiver from the Veteran or it determines that proceeding would not prejudice the Veteran. Id. at 399–400. The Veteran first filed her claims for a right arm and psychiatric disability in July 2011. Those claims were denied in a May 2013 rating decision. At the time, the pertinent evidence of record consisted of service treatment records (STRs), personal statements from the Veteran, records from March 2011 to April 2013 from the Montgomery, Alabama, VAMC, and a March 2013 VA psychiatric examination. The Veteran did not appeal the May 2013 determination. Instead, the following month, the Veteran submitted additional evidence. The March 2014 rating decision on appeal noted that the evidence was not new and material and continued its prior denial. The Veteran filed a notice of disagreement ((NOD)VA Form 21-0958) in July 2014. Because the NOD was filed more than one year after the initial May 2013 decision, that decision became final and binding, and the NOD can correspond only to the March 2014 rating decision. Thus, in order to reopen these claims, the submission of new and material evidence is required. 1. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression is granted. The July 2011 decision denied service connection for a psychiatric condition because, although the 2013 examination revealed a diagnosis of anxiety disorder (neither PTSD nor depression was diagnosed), VA determined that the anxiety condition did not occur in, nor was caused by, service. Recall above that VA stated it reviewed records from the Montgomery VAMC from March 2011 through April 2013. The VA psychiatric examination indicates that it took place at the Montgomery facility, and the examiner (under Section 2.c) stated that the Veteran “was previously being treated at the [Central Alabama Veterans Health Care System (CAVHCS)] for the diagnosis of PTSD.” Associated with the claims file prior to the May 2013 decision are VA records from the Veteran’s sessions with Dr. B., who diagnosed and treated the Veteran for PTSD. These records, however, do not indicate the location of the treating VA facility. After the May 2013 decision, the Veteran resubmitted copies of these records. A subsequent July 2014 statement from the Veteran and her hearing testimony make clear that she was diagnosed by Dr. B. at the Fort Rucker VAMC in June 2012. While the VA examiner noted that the Veteran previously was treated at the CAVHCS for PTSD, the term “CAVHCS” encompasses a handful of VA facilities. See https://www.centralalabama.va.gov/locations/index.asp (hereinafter CAVHCS Locations). Thus, there is no way of discerning where the PTSD treatment with Dr. B. occurred. In affording reasonable doubt to the Veteran, the Board finds these pieces of evidence constitute new and material evidence. The May 2013 decision specifically listed that it reviewed medical records from the Montgomery VAMC only—it did not mention records from the Fort Rucker location. After the final denial, the Veteran resubmitted those records and indicated that Dr. B. (the treating professional in those records) was from the Fort Rucker location. While the Board has no way of verifying whether those records are from the Fort Rucker location, the credibility of the Veteran’s statement on this point is presumed. See Justus, 3 Vet. App. at 513. Thus, those resubmitted records constitute new and material evidence. The Board is satisfied that the RO previously did not review them, and they relate to an unestablished fact necessary to substantiate the claim (a diagnosis of PTSD). Therefore, reopening of this claim is warranted. See 38 C.F.R. § 3.156(a). 2. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for a right arm disability, to include as secondary to service-connected fibrocystic breast with right axilla adenopathy, is granted. When the May 2013 decision denied this claim, it did so on the basis that there was no evidence of an in-service injury or event. The March 2014 decision on appeal, however, noted that the Veteran had no current diagnosis of a right arm disability. For the purposes of service connection, pain alone, without any underlying pathology or disease process, can constitute a current disability if there is objective evidence that the pain causes functional impairment resulting in a decrease of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). As noted, additional VAMC records were added to the claims file in March 2014. These records are from the Fort Rucker location, also known as the “Wiregrass” location. See supra CAVHCS Locations. A July 2012 entry indicates that the Veteran was experiencing pain for the last two–three months. The pain is both constant and intermittent, and described as shooting, stabbing, sharp, and radiating. Exacerbating factors include movement and activities of daily living; alleviating factors include medication, and the Veteran’s medication include prescriptions for Robaxin, Flexeril, and Motrin. The Board finds that this evidence is both new and material. As discussed for the psychiatric disability claim, the Board is satisfied that the RO previously did not review records from the Fort Rucker facility. Furthermore, given the Federal Circuit’s holding in Saunders, the Board finds that this documentation of pain speaks to an unestablished fact (current diagnosis) and at least raises a reasonably possibility of substantiating the Veteran’s claim. Thus, reopening is warranted. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression, is remanded. If VA provides a veteran with an examination, then it must provide an adequate examination and opinion. A medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, when a nexus between a current disability and an in-service event is indicated, there must be a medical opinion that provides some non-speculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). At the hearing, the Veteran informed the undersigned VLJ that she has not undergone psychiatric treatment since February 2013. Tr. at 10. Furthermore, the undersigned conceded that the sole psychiatric examination of record failed to provide a nexus opinion. Thus, a new psychiatric examination is in order to properly asses the nature and severity of her psychiatric disability and its relation, if any, to service. See Jones, 23 Vet. App. at 387; 38 C.F.R. § 20.904(a). 2. Entitlement to service connection for a right arm disability, to include as secondary to service-connected fibrocystic breast with right axilla adenopathy, is remanded. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). The Veteran never has been provided an examination for her right arm, and the Board finds this to be in error. The Veteran has persistent or recurrent symptoms of a disability. The Veteran testified at her hearing that, since her fibrocystic breast with right axilla adenopathy, she experiences “stiffness in the [right] arm” and an “inability to move the arm . . . as much as [she] used to.” The Board has no reason to doubt the Veteran’s credibility on this point, and she is competent to report such symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); Tr. at 3. The Veteran currently is service connected for fibrocystic breast with right axilla adenopathy. The Veterans testimony regarding how her service-connected condition has impacted her ability to move her arm normally over the years at least indicates that the two conditions can be related. Cf. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (stating that evidence “indicating” that a condition “may be associated” with service need not be “competent”). Lastly, there otherwise is insufficient medical evidence for the Board to adjudicate the claim. There is no competent and credible medical professional who has expressed an adequate opinion as to the relation, if any, between the two conditions. Thus, VA must provide the Veteran with an initial examination and opinion. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81; 38 C.F.R. §§ 3.159(c)(4), 20.904(a). 3. Entitlement to a compensable rating for service-connected fibrocystic breast with right axilla adenopathy is remanded. VA’s duty to assist includes assisting the veteran in the procurement of relevant private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). A veteran, however, must provide VA with enough information to obtain the private treatment records, such as the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided; the veteran also must execute the necessary authorization for VA to obtain these records. Where the record does not adequately reflect the current state of a veteran’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). At the hearing, the Veteran testified that there were outstanding private treatment records for this issue. Specifically, she stated that there were records as early as 2016, which would document surgeries, needle aspirations, MRIs, and ultrasounds. Tr. 5. The undersigned informed the Veteran that this evidence was not of record; the record was held open for thirty days so the Veteran could submit this evidence. The VLJ also acknowledged that the last examination for this condition occurred in 2013, possibly requiring an updated examination. Id. at 5–6. In February 2021, the Veteran submitted private treatment records spanning back to 2017. The Board finds that remand is warranted for two reasons. First, VA needs to ensure that it has all the Veteran’s outstanding private medical records for this issue. As discussed, the Veteran indicated that she had records as early as 2016, and VA now is aware of this fact. Because the Board has no way of verifying whether these records encompass all the records mentioned by the Veteran at the hearing, the Board finds that remand is required to ensure that fact. Furthermore, as indicated at the hearing, the Board finds that VA’s duty to provide an updated examination is triggered. The records that have been submitted span through November 2020 and contain only twenty pages. Before the submission of these records, the last evidence of record is from 2014. The Board is wary that these records alone are enough to rate adequately the Veteran’s service-connected condition. Thus, remand also is required to secure an updated examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (“We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.”); 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send the Veteran the necessary forms to identify any private treatment he has received for any conditions herein and afford her the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on the Veteran’s behalf. If the Veteran identifies any records, then make reasonable attempts to obtain those records. Such attempts must be documented in the claims file. 3. After the records, if any, have been associated with the claims file, schedule the Veteran for an examination. The examiner shall answer the following: (a.) Does the Veteran have a psychiatric disability, to include PTSD, anxiety, and/or depression? (b.) For any psychiatric disability diagnosed, is it at least as likely as not (a fifty percent probability or greater) that any diagnosed psychiatric disability occurred in, or is the result of, the Veteran’s period of active duty service, to include interactions with the Cuban refugee camp? 4. After the records, if any, have been associated with the claims file, schedule the Veteran for an examination. The examiner shall answer the following: (a.) Does the Veteran have any diagnosable right arm condition? (b.) If so, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s service-connected fibrocystic breast with right axilla adenopathy (i) proximately caused or (ii) aggravated beyond natural progression the Veteran’s right arm condition, if any? Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 5. Afford the Veteran the opportunity to attend an examination to assess the nature and severity of her service-connected fibrocystic breast with right axilla adenopathy. 6. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.