Citation Nr: 22014378 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-53 708 DATE: March 12, 2022 ORDER Service connection for diabetes mellitus, type II, is dismissed. Service connection for bilateral hearing loss is dismissed. Service connection for hypertension is dismissed. Service connection for an eye disability (benign vitreous floaters) is dismissed. Service connection for sleep apnea is dismissed. New and material evidence has been received to reopen the claim for service connection for a heart disorder, and to that extent only, the claim is allowed. New and material evidence has been received to reopen the claim for service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), and to that extent only, the claim is allowed. REMANDED Service connection for a heart disorder is remanded. Service connection for a psychiatric disorder, claimed as PTSD, is remanded. FINDINGS OF FACT 1. At the Appellant's October 2021 hearing, she withdrew the issues of entitlement to service connection for bilateral hearing loss, hypertension, an eye disability (benign vitreous floaters), sleep apnea, and diabetes mellitus, type II, 2. Service connection for a heart disorder was denied in a June 2014 rating decision; the Veteran did not timely appeal that decision or submit new and material evidence, and therefore, the June 2014 rating decision is final. 3. Service connection for PTSD was denied in a May 2015 rating decision; the Veteran did not timely appeal that decision or submit new and material evidence, and therefore, the May 2015 rating decision is final. 4. Since the May 2015 denial for service connection for PTSD and the June 2014 denial for service connection for a heart disorder, VA has received evidence which was not before adjudicators at that time, and which raises the reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The criteria for dismissal of the issues of entitlement to service connection for bilateral hearing loss, hypertension, an eye disability (benign vitreous floaters), sleep apnea, and diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. New and material evidence has been received to reopen the previously denied claims for entitlement to service connection for PTSD and a heart disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1980 to June 1984 with additional service in the Alabama National Guard. The Veteran passed away in May 2020; the Appellant, his surviving spouse, has been properly substituted. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. A transcript of that hearing has been associated with the claims file. The Appellant's appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn by a claimant or his or her authorized representative at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. At the October 2021 hearing before the Board, the Appellant and her representative withdrew the appeals for entitlement to service connection for bilateral hearing loss, hypertension, an eye disability (benign vitreous floaters), sleep apnea, and diabetes mellitus, type II. Thus, there remains no allegations of error of fact or law for the Board to address with respect to these issues, the Board does not have jurisdiction over them, and the claims are withdrawn. (CONTINUED ON NEXT PAGE) Claims to Reopen Legal Criteria Generally, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105. An 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. Factual Background and Analysis Service connection for PTSD was denied in a March 2015 rating decision because the RO found that there was no verification of in-service stressors and that there was no nexus to the Veteran's military service. Service connection for a heart disorder was denied in a June 2014 rating decision because the RO found no nexus to the Veteran's military service. The Veteran did not timely appeal the May 2015 or June 2014 rating decisions and also did not submit new and material evidence within the appeal periods; therefore, both decisions are final. In May 2018, VA received a private medical opinion finding a positive nexus between the Veteran's reported in-service personal assaults and his PTSD. In December 2021, VA received a private medical opinion finding a nexus between the Veteran's heart condition and his active duty service. As this information was not of record at the time of the prior denial, it is new. As it relates to a nexus, which was absent at the time of the prior denials for PTSD and a heart disorder, it is also material. Accordingly, new and material evidence has been received to reopen the claims for service connection for PTSD and a heart disorder, and to that extent only, the claims are allowed. The merits of the claims are discussed in the remand portion below. REASONS FOR REMAND Initially, the record reflects that in addition to his active service, the Veteran served with the Alabama National Guard from, at the very least, June 1984 to June 1986. A May 2009 VA Memorandum indicates that a fax was sent to the Alabama National Guard on November 7, 2008, and that a response was received the same day that there are no available records. The record contains the November 7, 2008, fax transmittal to the Alabama National Guard; however, there is no negative response associated with the record. As it is not clear that the records do not exist or that further attempts to obtain them would be futile, a remand is required for the RO attempt to obtain these records in accordance with VA regulation. On remand, the RO must also ensure that all outstanding medical records are associated with the claims file. Specifically, the Board notes that at the October 2021 hearing the Appellant indicated the Veteran began receiving VA medical treatment from the Columbus, Tuskegee, and Montgomery VA Medical Centers (VAMCs). She further indicated the Veteran had received psychiatric medication from Fort Benning at the VA outpost there. Attempts to obtain these records must be made on remand. Finally, private medical records dated in 2005 reflect the Veteran had applied for Social Security Administration (SSA) benefits shortly after he was diagnosed with congestive heart failure and cardiomyopathy. On remand, the RO must attempt to obtain these records. 1. Service connection for a psychiatric disorder, claimed as PTSD, is remanded. In a December 2015 Fully Developed Claim, the Veteran claimed service connection for a psychiatric disorder, claimed as PTSD, anxiety, and depression. Although the record contains two positive private nexus opinions finding the Veteran had PTSD related to his active service, there is no rationale in either of them, and therefore, these opinions cannot form the basis of a grant for service connection. No medical opinion has been obtained to determine the etiology of the claimed psychiatric disorders, and the Board finds the low threshold requiring an opinion has been met; therefore, the claim is remanded. 2. Service connection for a heart disorder is remanded. The Veteran has claimed his heart disorder began during and has continued since his active duty service. The Appellant has raised the theory that the Veteran's heart disorders were secondary to his psychiatric disorder. See October 2021 Hearing Testimony; see also Medical Literature Received from Appellant in December 2021. Although the record contains two positive private nexus opinions finding the Veteran's heart disorders were related to his active service, there is no rationale in either of them, and therefore, these opinions cannot form the basis of a grant for service connection. (CONTINUED ON NEXT PAGE) No medical opinion has been obtained to determine the etiology of the claimed heart disorders, and the Board finds the low threshold requiring an opinion has been met; therefore, the claim is remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding records from: The Columbus, Tuskegee, and Montgomery VAMCs; Fort Benning; The Alabama National Guard; and The Social Security Administration. The RO must outline all steps taken to attempt to obtain these records. If any records are unavailable or it is determined that further attempts to obtain them would be futile, the RO must prepare a Memorandum of Formal Finding of Unavailability and associate it with the evidentiary record. 2. Following completion of step 1, obtain a medical opinion regarding the etiology of the Veteran's psychiatric disorders. Following a thorough review of the claims file, the clinician is requested to provide the following information: (a) Identify all psychiatric disorders in the record. (b) With respect to each psychiatric disorder identified in (a), determine whether it began during or is related to the Veteran's active duty service. Why or why not? In considering whether a diagnosis of PTSD is appropriate and whether it is related to the Veteran's active service, the clinician is to consider any relevant markers signifying in-service stressors. The clinician is informed that a positive opinion finding a nexus to service does not require certainty. Rather, if the evidence is in approximate balance both for and against the claim, the examiner should render an opinion favorable to the Veteran. A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the clinician is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 3. Following completion of step 1, obtain a medical opinion regarding the etiology of the Veteran's heart disorders. Following a thorough review of the claims file, the clinician is requested to provide the following information: (a) Identify all heart disorders in the record. (b) With respect to each heart disorder identified in (a), determine whether it began during or is related to the Veteran's active duty service. Why or why not? (c) With respect to each heart disorder identified in (a), determine whether it was caused by any psychiatric disorder. Why or why not? (d) With respect to each heart disorder identified in (a), determine whether it was aggravated by any psychiatric disorder. Why or why not? The clinician is informed that a positive opinion finding a nexus to service (or to a service-connected disability) does not require certainty. Rather, if the evidence is in approximate balance both for and against the claim, the examiner should render an opinion favorable to the Veteran. A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the clinician is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.