Citation Nr: 21030595 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-52 760 DATE: May 19, 2021 ORDER Reopening of the previously denied claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is granted. Reopening of the previously denied claim for entitlement to service connection for hypertension is granted. Reopening of the previously denied claim for entitlement to service connection for a prostate condition is granted. Reopening of a previously denied claim for entitlement to service connection for residuals of a bamboo shoot wound, right foot, is denied. Entitlement to service connection for posttraumatic stress disorder is granted. Entitlement to an evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a prostate condition is remanded. Entitlement to an increased rating for right lower extremity peripheral vascular disease is remanded. Entitlement to an increased rating for left lower extremity peripheral vascular disease is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. An unappealed September 2011 rating decision denied service connection for residuals bamboo shoot wound of the right foot and for hypertension. 2. An unappealed November 2012 rating decision denied service connection for PTSD and for a prostate condition. 3. Evidence received since September 2011 was not previously considered by agency decision makers and relates to unestablished facts necessary to substantiate the claim for service connection for hypertension. 4. Evidence received since September 2011, when considered with previous evidence, is either cumulative or redundant of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for residuals bamboo shoot wound, right foot. 5. Evidence received since November 2012 was not previously considered by agency decision makers and relates to unestablished facts necessary to substantiate the claim for service connection for PTSD and a prostate condition. 6. The probative evidence of record indicates that the Veteran has been diagnosed with PTSD that has been linked to his conceded in-service stressors. 7. The Veteran's diabetes mellitus, type II is treated by no more than oral hypoglycemics and a restricted diet. CONCLUSIONS OF LAW 1. The September 2011 rating decision denying entitlement to service connection for residuals bamboo shoot wound, right foot and for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The November 2012 rating decision denying entitlement to service connection for PTSD and a prostate condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen the previously denied claims of service connection for hypertension, PTSD, and a prostate condition. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156. 4. New and material evidence has not been received to reopen the previously denied claim of service connection for residuals bamboo shoot wound, right foot. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156. 5. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1964 to January 1966. The Veteran is the recipient of a Purple Heart among other awards. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran testified at a December 2020 virtual hearing held before the undersigned. A transcript of the hearing is associated with the claims file. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in the Fully Developed Claim Form filed by the Veteran in October 2015. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist. Id. VA must review all of the evidence submitted since the last final rating decision to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). 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). Service connection for residuals of bamboo shoot wound, right foot and hypertension were denied in a September 2011 rating decision on the grounds that the claimed disabilities were not related to military service. Service connection for PTSD and a prostate condition were denied in a November 2012 rating decision on the grounds that the evidence did not show an event, disease, or injury in service. Evidence received since the September 2011 and November 2012 rating decisions denying service connection for hypertension, PTSD and a prostate condition includes VA medical records, private medical records and hearing testimony indicating a possible nexus between these disabilities and the Veteran's military service. The Veteran described the onset and continuity of symptoms; he is competent to do so, and his credibility is presumed for purposes of reopening. Justus, supra. Accordingly, reopening of the claims for entitlement to service connection for hypertension, PTSD and a prostate condition is warranted. The evidence received since the September 2011 prior final denial of the Veteran's claim for residuals of bamboo shoot wound, right foot, includes the Veteran's testimony that he injured his right foot in service. While the hearing testimony itself is new in that it has not been previously submitted to agency decision makers, it is not material because none of it relates to the basis of denial of the original claim. It was already considered in other form. Moreover, while the current diagnosis is noted, there is no opinion or indication of a potential nexus to service beyond the already considered, duplicative allegations of the Veteran. His belief in a relationship to his time in service is acknowledged but was already considered by the AOJ. He has offered nothing in addition to his belief to meet even the low threshold for reopening under Shade, supra. The repeated bare allegation is not enough, as it is not new or material. Accordingly, because new and material evidence has not been submitted, reopening of the claim of entitlement to service connection for residuals of a bamboo shoot wound, right foot is not warranted. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that a claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence, the benefit of the doubt is afforded the claimant. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran is seeking service connection for PTSD based on his experiences in service while in the Republic of Vietnam. VA regulations were revised to incorporate the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5) rather than the Fourth Edition (DSM-IV). These provisions apply to cases received by or pending before the agency of original jurisdiction on or after August 4, 2014. The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran's claim was certified to the Board after August 4, 2014; therefore, the regulations pertaining to the DSM-5 are applicable. Service treatment records (STRs) were silent for any treatment or diagnosis of any acquired psychiatric disorder. However, consistent with the Veteran's established combat service and his report of stressor events consistent with such service, the occurrence of traumatic events on active duty is considered established. 38 C.F.R. § 3.304(f). The Veteran underwent a VA initial PTSD examination in October 2012. The VA examiner determined that the Veteran did not have diagnosis of PTSD which conformed to DSM-IV and that his symptoms did not meet the criteria for diagnosis of PTSD. The VA examiner determined that the Veteran met the criteria for a diagnosis of depression. The Veteran described stressors as witnessing a lot of death in Vietnam and carrying bodies back behind the line and experiencing bombing and small arms fire. The VA examiner determined that while the Veteran met some criteria for a diagnosis of PTSD, he did not meet the full criteria. Symptoms including depressed mood, anxiety and chronic sleep impairment were noted. VA treatment notes reflect a psychology consult in September 2013 during which the Veteran reported experiencing intrusive thoughts, flashbacks and nightmares related to his time as an infantryman in Vietnam. In an October 2013 psychology session, he reported difficulties related to his service in Vietnam including intrusive thoughts, flashbacks and nightmares. He reported continuing to be impacted by the killing he observed while serving in Vietnam. He talked at length about the fear he experienced and how he was emotionally unprepared for what he encountered in Vietnam. The Veteran underwent a VA initial PTSD examination in July 2014. The VA examiner noted the Veteran's diagnoses of unspecified depressive disorder and unspecified neurocognitive disorder. The VA examiner noted that the Veteran was in the Army from 1964 to 1966 and was in the infantry. The Veteran described stressors as being exposed to "shooting and bombs" and taking the dead to the rear to be shipped back to the U.S. The VA examiner noted the Veteran experienced recurrent, involuntary, and intrusive distressing memories of the events and avoided external reminders. The Veteran reported difficulty sleeping, depressed mood, and impairment of short- and long- term memory. He presented with a restricted affect consistent with dysphoric mood. He was cooperative and answered questions in as goal-directed manner. There was no evidence of psychosis and thought content was free of suicidal or homicidal ideation. The VA examiner determined that the Veteran did not have a current diagnosis of PTSD that is caused by or a result of his fear of hostile military or terrorist activity. The VA examiner stated that the DSM-5 did not support this diagnosis. VA treatment records note a positive PTSD screening in October 2015 and continued treatment for depression. The Veteran submitted a private opinion by Dr. KWW in March 2021. Dr. KWW's opinion was based on a comprehensive review of the Veteran's medical records. Dr. KWW stated that based on her review of the record, while the Veteran has not been given the diagnosis of PTSD, the opinions of multiple VA healthcare providers acknowledge that the Veteran demonstrated symptoms consistent with PTSD. Dr. KWW determined that it is at least as likely as not that the Veteran meets the diagnostic criteria for PTSD pursuant to the DSM-V criteria. Dr. KWW noted that during the Veteran's 7-month tour in Vietnam, he was repeatedly exposed to firefighting and on multiple occasions had to carry dead bodies of friends and fellow soldiers to the rear in order for them to be flown back to the United States. The Veteran experiences nightmares, intrusive thoughts, and flashbacks of the traumatic events he experienced in Vietnam. Review of the record reveals the Veteran attempted to avoid thinking about his experiences by using alcohol and that he avoids crowds and war movies. The Veteran has expressed feelings of anger and being upset with the world, depression, anhedonia and difficulty experiencing loving feelings towards his wife. He has experienced persistent sleep difficulties, an exaggerated startle response and hypervigilance. His symptoms began while he was in Vietnam and continue to the present. He has expressed social impairment, and feelings of loneliness and isolation. Review of the record established that the symptoms the Veteran is experiencing are not secondary to physiological effects of a substance. Dr. KWW determined that the Veteran meets the diagnostic criteria for PTSD and that his previously diagnosed anxiety and depression are symptoms of his PTSD and that the constellation of symptoms he has experienced are more consistent with PTSD more than either depression or anxiety. Dr. KWW determined that it is at least as likely as not that the stressors the Veteran experienced in Vietnam caused his diagnosis of PTSD. The Board gives greater probative weight to the March 2021 medical opinion as Dr. KWW formed her opinion after her comprehensive review of the Veteran's medical records and consideration of his combat stressors. As the preponderance of evidence favors the claim, service connection for PTSD is warranted. Increased Rating The Veteran is seeking an evaluation in excess of 20 percent for his service-connected diabetes mellitus. Diabetes mellitus is rated under 3838 C.F.R. § 4.119, Diagnostic Code 7913. The rating criteria for diabetes are successive. "Successive" rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Pursuant to Code 7913, a 20 percent evaluation is assigned for symptoms that require insulin and restricted diet, or; oral hypoglycemics and a restricted diet. A 40 percent evaluation is assigned for diabetes requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities based on clinical findings by a medical professional). A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Veteran underwent a VA contract diabetes mellitus examination in January 2016. The VA contract examiner noted that he did not review any of the Veteran's medical records. The VA contract examiner indicated that the Veteran's diabetes mellitus is managed by a restricted diet and oral hypoglycemic agents. The Veteran did not require regulation of activities as part of medical management of diabetes mellitus. The Veteran sees his diabetic care provider less than two times per month for episodes of ketoacidosis and/or hypoglycemia. The Veteran has had no episodes of ketoacidosis and/or hypoglycemia which required hospitalization over the past 12 months. The VA contract examiner noted that the Veteran's diabetes mellitus condition required the Veteran "to regulate his activities and avoid strenuous works." A review of the Veteran's VA treatment records and private treatment records reflect that his service-connected diabetes mellitus type II has been treated by oral hypoglycemic (Metformin) and a restricted diet throughout the period on appeal. The medical evidence does not establish that the Veteran has been required to take insulin at any time during the period on appeal. Further, the Veteran was encouraged to engage in activity and exercise; no regulation or restriction of activity was indicated. The Board acknowledges the statement by the VA contract examiner indicating that the Veteran's diabetes mellitus impacts his ability to work in that he has "to regulate his activities and avoid strenuous works." This statement is contrary to the findings of the examination which clearly states the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. Additionally, the VA contract examiner noted that he did not review the Veteran's medical records in conjunction with his examination. The Board assigns little weight to this statement. In any case, in the absence of use of insulin, no higher schedular evaluation is available. Based on a thorough review of the evidence of record, the Board finds the criteria for an increased initial disability evaluation in excess of 20 percent for the Veteran's service-connected diabetes mellitus type II are not met. REASONS FOR REMAND The issues of entitlement to service connection for hypertension, for a prostate condition, for increased evaluations for peripheral vascular disease of the bilateral lower extremities and for entitlement to TDIU are remanded for additional development. The Veteran is seeking service connection for hypertension which he asserts is related to his time in service. The Veteran's VA treatment records reflect a diagnosis of hypertension and indicate the Veteran takes continuous medication for control of hypertension. The Veteran underwent a VA contract hypertension examination in January 2016. The VA contract examiner indicated it is at least as likely as not that the Veteran's diabetes mellitus permanently aggravated the Veteran's hypertension but offered no rationale for this statement. This examination is inadequate for adjudication purposes. On remand, the Veteran should be scheduled for a VA examination and an opinion should be obtained as to the current nature and etiology of any currently diagnosed hypertension. The Veteran's VA treatment records reflect a diagnosis of hyperplasia of the prostate. In April 2021, the Veteran submitted medical articles which suggest a link between diabetes mellitus and prostate conditions. As there is a current diagnosis, as well as evidence of a potential nexus to a service-connected disability, examination is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the Veteran should be scheduled for a VA prostate examination and an opinion as to the nature and etiology of any currently diagnosed prostate condition should be provided. The claim is Though here no actual examination is possible, a review of the record and considered medical opinion are possible. Therefore, the claims are remanded for medical opinions. in support of his claim for entitlement to an enlarged prostate to include as due to diabetes mellitus. A review of the file reveals the Veteran has not been afforded a VA examination. At his hearing, the Veteran reported that he is unable to stand up for too long. The Veteran was last afforded a VA artery examination January 2016. On remand, the Veteran should be afforded a VA artery examination to ascertain determine the current nature and severity of his right and left lower extremity peripheral vascular disease. At his hearing, the Veteran raised a claim for entitlement to TDIU. In order to properly consider such, development is necessary to ensure a complete record on the involved factors. As the claims for hypertension, and for increased evaluations for bilateral peripheral vascular disease and TDIU are inextricably intertwined, the Board will defer action on this claim until the development is completed. The matters are REMANDED for the following action: 1. Send the Veteran an application for TDIU (VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability)) and an appropriate notification letter. Conduct any development needed to adjudicate the issue of entitlement to TDIU. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed hypertension. The claims folder must be reviewed in conjunction with the examination. The examiner must provide an opinion as to whether it is at least as likely as not any diagnosed hypertension is related to service, is proximately due to diabetes mellitus, or is aggravated (permanently worsened beyond its natural progression) by diabetes mellitus. A full and complete rationale for all opinions expressed is required. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed prostate condition. The claims folder must be reviewed in conjunction with the examination. The examiner must provide an opinion as to whether it is at least as likely as not that any diagnosed prostate condition is related to service, is proximately due to diabetes mellitus or is aggravated by diabetes mellitus. The clinician must consider and discuss the evidence submitted by the Veteran in April 2021 suggesting a potential link between prostate conditions and diabetes mellitus. A full and complete rationale for all opinions expressed is required. 4. Schedule the Veteran for a VA examination to ascertain the current level and severity of his right and left lower extremity peripheral vascular disease. 5. Then, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.