Citation Nr: 21041073 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-07 562 DATE: July 8, 2021 ORDER New and material evidence having been submitted, the issue of entitlement to service connection for posttraumatic stress disorder (PTDS) is reopened. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to a rating in excess of 30 percent for depressive disorder is remanded. Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II (DM) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A May 2006 rating decision denied the Veteran's claim seeking service connection for PTSD; the Veteran did not appeal, no new and material evidence was received within the appeals period, and the decision is final. 2. VA has received evidence since the May 2006 rating decision, which relates to the basis for the prior denial of service connection for PTSD and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to May 1971. He served in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from September 2013 and August 2015 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2020, the Veteran testified at a hearing held before the undersigned. In October 2020, the Veteran's representative submitted a request for information as to the qualifications of a medical professional who provided a VA compensation and pension examination. The request did not include any information identifying a particular VA examiner or a particular VA examination. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). The October 2020 request for information does not raise a specific challenge. VA is not required to provide information about any VA examiner. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTDS VA may review a previously denied claim if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The Court of Appeals for Veterans Claims (Court) held the phrase "raises a reasonable possibility of establishing the claim" must be viewed as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) creates a "low threshold" for finding new and material evidence that is favorable to the claimant. Id. New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the RO's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Here, an April 2000 rating decision denied service connection for PTSD because the Veteran's claimed stressor (performing search and destroy missions and being wounded by shrapnel in Vietnam) was not verified. In May 2006, reopening of this issue was denied because new and material evidence was not submitted. The Veteran did not file a notice of disagreement, and VA did not receive additional evidence regarding the claim within one year of notice of the May 2006 decision. This rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52, 20.1103. In May 2013 and July 2014, the Veteran submitted additional statements recounting his active service in Vietnam. He recalled witnessing a helicopter being "blown away" after it was struck by a mortar or rocket. He also described being sent to a mountain village where he saw the bodies of soldiers who had perished there. His previously submitted statements did not describe these events. The May 2013 and July 2014 statements are new evidence. These statements raise the possibility of qualifying for service connection for PTSD under the relaxed standard for stressor verification for PTSD claims under 38 C.F.R. § 3.304(f)(3) based on a fear of hostile military or terrorist activity. See Boggs, supra. Thus, new and material evidence has been submitted. Reopening of the claim is warranted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade, supra. REASONS FOR REMAND The most recent VA treatment records associated with the claims file are from February 2017. More recent VA medical records appear to be outstanding. These records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for PTSD is remanded. An October 2013 rating decision allowed service connection for depressive disorder secondary to the Veteran's service-connected CAD disability. In July 2014, the Veteran submitted an additional statement to support a claim of service connection for PTSD. During the November 2020 hearing and in and a March 2021 letter, the Veteran's representative explained the Veteran seeks service connection for PTSD and increased rating for depressive disorder (discussed below.) VA's duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.§ 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual, Fifth Edition (DSM-5). If a claimed stressor is related to the fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the claimant's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the claimant's service, the claimant's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For purposes of 38 C.F.R. § 3.304(f)(3), "fear of hostile military or terrorist activity" means the claimant experienced, witnessed, or was confronted with an event or circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of the claimant or others, such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the claimant's response to the event or circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror." Id. VA treatment records, prior to the period on appeal, include a February 2000 diagnosis of PTSD. Additional VA treatment records show the Veteran received individual and group mental health treatment for PTSD. Subsequent treatment records include the Veteran's reports that his PTSD symptoms were, at times, improved. Over the appeal period, the VA treatment records do not include a diagnosis of PTSD which conforms to VA regulations. See 38 C.F.R. § 3.304(f), 4.125. VA PTSD examination was provided in August 2013. The examiner observed the Veteran's reported stressor ("we were on patrol all the time and I seen a lot of death.") was sufficient to support a diagnosis of PTSD. However, she found the Veteran did not meet the diagnostic criteria for PTSD. In one section of the report, she indicated the Veteran's only mental health symptoms were depressed mood and anxiety. In a separate section of the report she observed additional symptoms of intrusive memories, nightmares, avoiding thinking and talking about trauma, avoiding crowds, anhedonia, irritability/anger, concentration difficulties, hypervigilance, and exaggerated startle response. The examiner stated these additional symptoms were not "significant" under the Clinician-Administered PTSD Scale (CAPS) for DSM-IV. She noted CAPS is the "gold standard" for assessing PTSD. However, she did not provide any discussion or explanation as to why these symptoms were not significant. The August 2013 VA examination report is inadequate to evaluate the claim. See Stefl, supra. A March 2015 VA mental disorders examination diagnosed unspecified depressive disorder with anxiety features. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. She also noted "behavioral observations" of nightmares, recurrent thoughts about Vietnam, and feeling watchful. However, she did not diagnose PTSD and attested that the Veteran had only one mental disorder (depressive disorder) that conformed to the DSM-5 diagnostic criteria. The examiner did not explain why the Veteran's symptoms and behavioral observations were associated with depression and not any additional mental disorder. She did not provide a VA PTSD examination. The March 2015 examination is inadequate to evaluate the claim. Id. An additional VA mental disorders examination was provided in February 2017. The examiner did not conduct a PTSD examination because "[i]t is highly unlikely that someone would develop full blown PTSD 46 years after combat." The Board notes the Veteran's claim does not assert his PTSD was recently onset and the medical evidence associated with the claims file includes evidence of PTSD symptoms many years prior to the February 2017 evaluation. The examiner's opinion is not based on an accurate evaluation of the Veteran's claim or his medical history. The examiner also stated the Veteran would not meet the diagnostic criteria for PTSD because "he mentions only occasional nightmares." The examiner did not explain how often nightmares must be experienced to support a diagnosis of PTSD. The examination report is inadequate to evaluate the claim. Id. To support this claim, the Veteran submitted an April 2017 private evaluation from Dr Q. A.-S,, a psychologist. This evaluation does not include a diagnosis of PTSD under the DSM-5 criteria. It is not sufficient to establish a diagnosis of PTSD over the current appeal period. See 38 C.F.R. § 3.304(f), 4.125. Here, the evidence suggests the Veteran experienced symptoms which may be due to PTSD over the appeal period. However, an adequate examination to evaluate and diagnose this condition has not been provided. A new VA PTSD examination must be obtained. See McLendon, supra. 2. Entitlement to a rating in excess of 30 percent for depressive disorder is remanded. The Veteran seeks an increased rating for his depressive disorder. Most recently, a February 2017 VA mental disorders examination was provided to evaluate the claim. During the November 2020 hearing, the Veteran's representative asserted his mental health symptoms were ever present and greatly impact his life. As it appears the Veteran's depression may have worsened since the prior examination, a new examination must be provided. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) is remanded. The Veteran seeks an increased initial evaluation for CAD. The most recent VA examination to evaluate this condition was provided in August 2013. In November 2020, the Veteran testified that he underwent quadruple bypass surgery in August 2019. As his CAD condition may have worsened since the prior VA examination, and a new examination must be provided. Id. Additionally, medical records of this August 2019 heart surgery are not yet associated with the claims file. They are relevant to the Veteran's claim and additional efforts to obtain them are required. 4. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. 5. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. The Veteran seeks increased ratings for his bilateral lower extremity neuropathy disabilities. In February 2017, a VA diabetic sensory-motor peripheral neuropathy examination was provided to evaluate the claims. In November 2020, the Veteran testified that his symptoms had increased since the last examination. He reported that he now used a walker and experienced increased numbness in his legs. A new examination must be provided. Id. 6. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II (DM) is remanded. The Veteran seeks an increased rating for DM. In February 2017, a VA DM examination was provided to evaluate the Veteran's condition. The Veteran's lower extremity neuropathy is associated with DM and, as noted above, his neuropathy symptoms may have increased since February 2017. As this may indicate his DM is also worsening, a new VA examination must be provided. Id. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The issue of entitlement to a TDIU is intertwined with the remanded claims discussed above. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private medical treatment provider who may have records relevant to his claims. Make two requests for the authorized records from any treatment provider identified, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD) over the appeal period. If the Veteran is diagnosed with PTSD at any time over the appeal period, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor, including fear of hostile military or terrorist activity. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected mental health disorders (depressive disorder and, if indicated, PTSD.) The examiner should provide a full description of the service-connected mental health disorders and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to all service-connected mental health disorders. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his CAD, DM, and lower extremity peripheral neuropathy. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating each disability under the applicable rating criteria M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Celtnieks, Jeanne 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.