Citation Nr: 22013019 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-27 371 DATE: March 8, 2022 ORDER New and material evidence has been received to reopen a claim for service connection for bruxism. New and material evidence has been received to reopen a claim for service connection for diabetes mellitus, type 2 (DMII). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, and sleep problems due to military sexual trauma (MST) is remanded. Entitlement to service connection for bruxism is remanded. Entitlement to service connection for DMII is remanded. FINDINGS OF FACT 1. The Veteran's claims for service connection for bruxism and DMII were previously considered and denied in an October 2014 rating decision; he did not appeal that decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence since received, however, is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts needed to substantiate these claims, and raises a reasonable possibility of substantiating them. CONCLUSIONS OF LAW 1. The October 2014 rating decision earlier considering and denying service connection for bruxism and DMII is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. But there is new and material evidence since that decision to reopen the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to January 1994. This appeal to the Board of Veterans' Appeals (Board) is from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a "virtual" teleconference hearing in September 2021 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. The Board held the record open for an additional 60 days following the hearing to allow the Veteran time to obtain and submit additional supporting evidence. New and Material Evidence 1. New and material evidence has been received to reopen the claims for service connection for bruxism and DMII The Veteran's claim for service connection for DMII was originally considered and denied in a November 2009 rating decision and again in a subsequent November 2013 rating decision. And, while he appealed other claims that were denied in that decision including for PTSD, which is another claim now on appeal, he did not appeal that earlier denial of his claim for service connection for DMII. These claims (both) also were considered and denied in an October 2014 rating decision. That October 2014 rating decision determined there was not new and material evidence since those earlier denials of the claim for service connection for DMII and, thus, denied the petition to reopen this claim. After each of those prior rating decisions, the RO duly notified the Veteran of the decision and of his appellate rights. However, he did not appeal any earlier decision concerning either bruxism or DMII and new and material evidence was not constructively or actually received within the appeal period. Consequently, those earlier decisions are final and binding determinations based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). Since the October 2014 rating decision is the last final and binding denial of these claims, it marks the "starting point" for determining whether new and material evidence since has been submitted or otherwise obtained to warrant reopening and readjudicating these claims on their underlying merits (i.e., on a de novo basis). See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (indicating to review for newness and materiality all evidence submitted or otherwise obtained since the last final and binding denial of the claim, irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). 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. A claim on which there is a final decision, however, 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 decisionmakers. "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. 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. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed unless inherently incredible (patently false or untrue) or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The October 2014 rating decision denied the claim for service connection for bruxism (grinding of teeth) on the premise that VA cannot grant service connection for this condition as a standalone disability, rather, service connection only can be granted on a secondary basis. The October 2014 rating decision additionally denied service connection for DMII because the Veteran had not submitted any new and material evidence tending to support this claim (meaning since the prior denial of this claim). But evidence added to the record since the October 2014 final and binding denial of these claims includes the Veteran's September 2021 hearing testimony along with buddy statements and updated VA treatment records. This evidence is new in that it was not previously of record, and it is not cumulative or redundant of the evidence of record at the time of the October 2014 rating decision. This additional evidence also is material in that it relates to unestablished facts needed to substantiate these claims for service connection for bruxism and DMII and raises a reasonable possibility of substantiating them. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Since this evidence is both new and material, these claims are reopened. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and sleep problems due to MST, is remanded. The first point worth noting is that the Veteran has filed separate claims for service connection for PTSD, anxiety, depression, and sleep impairment. But, as a function of the Board's de novo review authority, after considering the medical and lay evidence of record, the Board has consolidated and recharacterized his claims more broadly as for an acquired psychiatric disorder, inclusive of PTSD, depression, anxiety, and sleep problems. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Veteran asserts that he has an acquired psychiatric disorder because of MST and other personal assaults during his service. In support of his claim, the Veteran has submitted VA Community Care treatment records from a licensed social worker showing a diagnosis of PTSD. When the Veteran transferred care to VA, the diagnosis of PTSD carried over and continues to show on his medical problems list in his VA treatment records. More information is needed, however, to allow the Board to make a fully-informed decision on this claim. More specifically, a VA psychologist or psychiatrist should clairfy all diagnoses including in terms of whether the Veteran' meets the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM) for PTSD. And the examiner will then need to opine on the likelihood that any current acquired psychiatric disorder is related or attributable to the Veteran's service, including to his alleged MST and other personal assaults. 38 C.F.R. § 3.304(f)(5). 4. Entitlement to service connection for bruxism, including as secondary to an acquired psychiatric disorder, is remanded. The Veteran asserts that his bruxism is either caused or aggravated by his acquired psychiatric disorder, so this claim is rooted in the notion of secondary service connection. 38 C.F.R. § 3.310. Because entitlement to service connection for bruxism is dependent on a favorable decision on the issue of entitlement to service connection for an acquired psychiatric disorder, these claims are "inextricably intertwined." See, e.g., Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are "inextricably intertwined" when the adjudication of one claim could have a significant impact on the adjudication of another claim). Thus, consideration of the bruxism claim must be deferred pending completion of the additional development being directed concerning the underlying claim for an acquired psychiatric disorder. Further, no VA examiner has opined on whether the Veteran's bruxism is either caused or aggravated by his acquired psychiatric disorder. So, medical comment is needed concerning this posited correlation before deciding the appeal of this claim. 5. Entitlement to service connection for DMII is remanded. During his September 2021 hearing before this Board, the Veteran testified that, while in service, he had a blood test that revealed an elevated A1C, which he was told was indicative of DMII. He asserted this test result is documented in the report of his military separation examination, but a review of this report does not show notation of an elevated A1C level. In other hearing testimony, the Veteran alleged that it was not referred to as A1C at the time of his separation from service, and that he initially received a diagnosis of DMII in 1998 or thereabouts, so only about 4 years after conclusion of his service, and that he initially managed it with diet alone. Then later, in 2008 or thereabouts, his doctor started contemplating managing it with medication also, so not just with diet. The Veteran said he had a lot of jobs after service that did not provide medical coverage (insurance), and even those that did he did not want to use, so that is why there is a gap (lapse) in documentation tracing his DMII back to his time in service. The Board cannot make a fully-informed decision on this claim bcause no VA examiner has opined on whether the Veteran's DMII incepted during his service, or within a year of his discharge, or is otherwise related or attributable to his service, including by addressing his hearing testimony that he had an elevated A1C level during his service that was the initial indication of this disease. Accordingly, these claims are REMANDED for the following action: 1. If there are outstanding records concerning these remaining claims, obtain them and appropriately notify the Veteran if unable to obtain any additional records that he identifies with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. Provide the Veteran the required notice regarding his claim for service connection for an acquired psychiatric disorder that is predicated on MST and other personal assault pursuant to 38 C.F.R. § 3.304(f)(5). 3. After allowing time for the Veteran's response to the MST notice, conduct any necessary development based on additional information received regarding his reported stressors. 4. After his reported stressors have been developed, schedule the Veteran for a mental status examination to determine the nature and etiology of any current acquired psychiatric disorder including PTSD or any other diagnosis determined to be warranted. If it is confirmed the Veteran has PTSD, the examiner must explain how the DSM criteria are met for this diagnosis and opine on whether it is at least as likely as not related or attributable to a verified stressor during his service. To this end, the examiner must opine on whether the evidence of record, including the Veteran's lay statements and the records concerning his service tend to corroborate his assertion of MST or personal assault during his service. See 38 C.F.R. § 3.304(f)(5) (discussing "markers" or other acceptable indicators such as behavioral change, decline in performance, request for duty re-assignment, etc.). If any other acquired psychiatric disorders are diagnosed, meaning other than PTSD, the examiner also must opine on whether each diagnosed disorder other than PTSD is at least as likely as not related or attributable to an injury, an event, or a disease during the Veteran's service, including to his assertion of MST and other personal assault. 5. Also schedule the Veteran for a VA examination for his bruxism. The examiner is asked to provide opinions on the following: A) Is it at least as likely as not the Veteran's bruxism is directly related or attributable to his service? B) Alternatively, is it at least as likely as not the Veteran's bruxism is secondarily related to his service, meaning caused OR aggravated by an acquired psychiatric disorder (if an acquired psychiatric disorder, in turn, is attributed to his service)? 6. As well, schedule the Veteran for a VA examination for his DMII. The examiner is asked to opine on whether the Veteran's DMII onset during his service from January 1990 to January 1994, or within a year of his discharge so by January 195, or is otherwise related or attributable to his service, including when considering his assertion that he had an elevated A1C level during his service? *Rationale for opinions is essential, regardless of whether favorable or unfavorable to these claims, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.