Citation Nr: 22047653 Decision Date: 08/22/22 Archive Date: 08/22/22 DOCKET NO. 18-49 157 DATE: August 22, 2022 ORDER The previously denied claim for service connection for diabetes type II is reopened; to this extent only, the appeal is granted. The previously denied claim for service connection for basal cell carcinoma is reopened; to this extent only, the appeal is granted The previously denied claim for service connection for coronary artery disease (CAD), with chest pains and exertional dyspnea, status post angioplasty with stent placement is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for diabetes type II is remanded. Entitlement to service connection for basal cell carcinoma is remanded. Entitlement to service connection for CAD, with chest pains and exertional dyspnea, status post angioplasty with stent placement is remanded. FINDINGS OF FACT 1. An October 2016 rating decision denied the claims of service connection for diabetes type II, basal cell carcinoma, and CAD; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received since the October 2016 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claims for service connection for diabetes type II, basal cell carcinoma/positive, and CAD. CONCLUSIONS OF LAW 1. The October 2016 rating decision denying service connection for diabetes type II, basal cell carcinoma, and CAD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. 2. New and material evidence sufficient to reopen the Veteran's claims of entitlement to service connection for diabetes type II, basal cell carcinoma, and CAD has been received since that October 2016 rating decision. 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 September 1969 to May 1971. These matters comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision and an October 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). The Board notes that, in order to provide the broadest and most sympathetic review, the claim for service connection for PTSD has been recharacterized as service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the Board must consider any disability that "may reasonably be encompassed by" a description of the claim, symptoms reported, and other evidence). The Veteran testified in a videoconference hearing before the undersigned Board of Veterans' Appeals Veterans Law Judge (VLJ) in March 2021; a transcript of that hearing has been associated with his claims file. Service Connection 1. Whether new and material evidence has been submitted to reopen the claim for service connection for diabetes type II 2. Whether new and material evidence has been submitted to reopen the claim for service connection for basal cell carcinoma 3. Whether new and material evidence has been submitted to reopen the claim for service connection for CAD, with chest pains and exertional dyspnea, status post angioplasty with stent placement 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. However, a claim on which there is a final decision 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. 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). The Court has held that 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A claimant may submit an application or claim to reopen a disallowed claim, at which time VA must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to determine whether new and material evidence has been submitted and reopening of the claim is warranted. In this case, service connection for diabetes type II, basal cell carcinoma, and CAD was denied in a December 2014 rating decision. The decision found the disabilities did not happen in military service, nor was it aggravated or caused by service. The October 2016 rating decision denied reopening these claims finding the Veteran did not submit new and material evidence. Specifically, the rating decision found no evidence showing his basal cell carcinoma was related to his military service, no evidence showing CAD was related to military service and no evidence showing diabetes type II was related to military service. The Veteran was notified of those determinations and of his appellate rights, and he did not submit new and material evidence within the following year after the October 2016 rating decision or the 60 days after the corresponding May 2018 Statement of the Case or perfect an appeal of the October 2016 rating decision. Accordingly, that decision is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Evidence received since that unappealed rating decision includes, but is not limited to written statements and the Veteran's testimony in the March 2021 hearing before the undersigned VLJ. This newly received evidence is new because it was not previously considered in the October 2016 rating decision, and it is material because it pertains to unestablished facts necessary to substantiate the claims of entitlement to service connection for the aforementioned conditions; namely, it provides additional details regarding the Veteran's exposure to Agent Orange. As this additional evidence is new and material, these claims are consequently reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran was afforded a VA PTSD examination in June 2017. The examiner opined that the Veteran does not have a psychiatric diagnosis that conforms to DSM-5 criteria and did not diagnosis the Veteran with any psychiatric disorder. The Veteran's VA treatment records, however, indicate that he has been diagnosed with PTSD; specifically, they list both unspecified mild neurocognitive disorder and PTSD as "DSM-5 DIAGNOS[ES]." The Veteran essentially claims that his VA examination was not thorough or adequate. See VA Form 9, Appeal to Board of Veterans' Appeals, received October 18, 2018. In light of the foregoing (in particular, the discrepancies between the VA treatment records and the VA examination report regarding the presence of a current psychiatric disorder), the Board finds that additional information, in the form of another VA examination, is necessary before this claim can be adjudicated. The examiner should opine whether the Veteran has an acquired psychiatric disorder, to include PTSD, and if so, whether is related to his active military service. Also, the Board notes that the Veteran claims that he has PTSD as a result of "witnessing the death of a fellow soldier while working on an antenna -- power line" and as a result of another soldier jumping out of a two-story building and dying (the Board notes that the Veteran did not claim that he saw the other soldier that jumped out of the building die). See Transcript of Hearing Before the Board dated March 2021. On remand, attempts should be made to corroborate these events before the Veteran is afforded another VA examination for his claimed PTSD/acquired psychiatric disorder. 2. Entitlement to service connection for diabetes type II is remanded. 3. Entitlement to service connection for basal cell carcinoma/positive is remanded. 4. Entitlement to service connection for coronary artery disease, with chest pains and exertional dyspnea, status post angioplasty with stent placement is remanded. The record reflects that the Veteran receives disability benefits from the Social Security Administration. See Initial PTSD DBQ dated in June 2017 ("He related that his wife worked part time and his social security were the families only income."); Transcript of Hearing Before the Board dated in March 2021 ("... I had to go on Disability about seven years before I was supposed to retire..."). VA has a duty to make as many requests as are necessary to obtain relevant records from Federal departments or agencies, including the SSA, and will end its efforts to obtain records from such Federal departments or agencies only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. See, e.g., 38 C.F.R. § 3.159(c)(2). Therefore, on remand, any outstanding SSA records should be sought. Additionally, the record reflects that the Veteran has obtained relevant treatment from VA medical facilities and the Veteran mentioned during his March 2021 videoconference hearing before the Board that he obtains treatment for his disabilities from private physicians/healthcare facilities. Accordingly, on remand, he should also be asked to identify and to complete any necessary release authorization forms for any private physicians/healthcare facilities that he has obtained treatment from since his private records were last obtained, and any outstanding VA treatment records should be obtained. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Make adequate attempts to corroborate the Veteran's claim that he "witness[ed] the death of a fellow soldier while working on an antenna -- power line" and that another soldier jumped out of a two-story building and died. 2. Ask the Veteran to complete a VA Form 21-4142 for any private physicians and/or healthcare facilities that he has obtained relevant medical treatment from since his private records were last obtained. Make two requests for the records from any such physicians and/or healthcare facilities that the Veteran adequately identifies on the VA Form 21-4142, unless it is clear after the first request that a second request would be futile. 3. Obtain any outstanding VA treatment records (including but not limited to any updated records from the Tupelo or Memphis VA medical centers). 4. Obtain all Social Security Administration (SSA) records pertaining to the Veteran's claims for SSDI benefits, to include any determinations and the medical records used in support of his claim and associate with the Veteran's claims folder. All attempts to obtain these records should be documented in the claims folder. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are federal records, if they cannot be located or no such records exist, the Veteran should be notified in writing. 5. Then schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorders, to included PTSD. If the Veteran is diagnosed with PTSD, 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. The examiner must also opine as follows: (a.) The examiner must opine whether the evidence of record, including the Veteran's lay statements and the Veteran's service records, corroborate the claim that a personal assault occurred in service (as described, for example, in a May 2017 VA Form 21-0781) (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include (a) "witnessing the death of a fellow soldier while working on an antenna -- power line" and (b) another soldier jumping out of a two-story building and dying. (c.) If the examiner determines that the Veteran does not have an acquired psychiatric disability that conforms to DSM-5 criteria, the examiner must explain why, and in doing so, must specifically state how it was determined that any diagnosis mentioned in the Veteran's VA treatment records is inaccurate, or how it was determined that any such diagnosis does not conform to DSM-5, etc. R. Costello Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.