Citation Nr: 23044575 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 19-35 642 DATE: August 10, 2023 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and schizoaffective disorder, is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral upper extremity neuropathy is remanded. Entitlement to service connection for bilateral lower extremity neuropathy is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and schizoaffective disorder, is remanded. FINDING OF FACT A final May 2011 rating decision confirmed and continued the prior denial of service connection for PTSD and bipolar disorder; newly received evidence raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and schizoaffective disorder, is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1969 to March 1973. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal with one Bronze Star. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during an April 2022 virtual hearing. A transcript of this proceeding has been associated with the record. Upon review of the record, several of the pending appeals have been combined and expanded as set forth on the title page. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence Currently, the Veteran is seeking to reopen a service connection claim for an acquired psychiatric disorder on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically and in pertinent part, the prior denial of service connection for PTSD and bipolar disorder was confirmed and continued in a May 2011 rating decision. The Veteran did not perfect an appeal as to this rating decision or submit documentation constituting new and material evidence within the appeal period. Accordingly, the May 2011 rating decision became final. The Veteran requested to reopen the claim in January 2015. Thus, the appeal may be granted upon a finding that new and material evidence has been received since the prior final rating decision. A positive finding is offered in this case. Here, the May 2011 rating decision was based upon the RO's determination that the Veteran did not demonstrate a current diagnosis of PTSD, and that his diagnosed bipolar disorder was not related to military service. Thereafter, new evidence was received which raises a reasonable possibility of substantiating the claim, including treatment records diagnosing PTSD and the Veteran's competent testimony regarding his military service, the onset of his symptoms, and their perceived relationship. See generally VA treatment records (noting a current diagnosis of PTSD); see, e.g., lay statements dated December 2008, May 2015, and April 2022, and April 2022 hearing transcript; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, there is new evidence which speaks directly to an unestablished fact necessary to substantiate the claim. Upon a finding of new and material evidence, the application to reopen the service connection claim for an acquired psychiatric disorder is hereby granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. First, the claims file contains legible VA treatment records through October 2019; although subsequent records were obtained, they are not currently legible in their uploaded format. See VA treatment records obtained in May 2023. On remand, efforts to obtain updated treatment records are required, with specific care that this evidence be legible in its uploaded format. Second, the claims file indicates that the Veteran once pursued Social Security Administration (SSA) benefits, but was denied. However, a complete copy of the Veteran's claim and related evidence have not yet been obtained. As these records may be relevant to the pending appeals, reasonable efforts to obtain them must be undertaken. Third, during the April 2022 hearing, the Veteran reported treatment (specifically, physical therapy for his upper and lower extremities) at the Houston Hospital. These records must also be obtained. Fourth, during the April 2022 hearing, the Veteran testified that he was first diagnosed with hypertension by his employer in 1973. Although it seems unlikely that such records remain in existence, the existing need for a remand allows for additional opportunity to solicit this evidence, as well. Fifth, the Veteran has submitted numerous statements which identify multiple in-service stressors relevant to the pending psychiatric appeal. See, e.g., lay statements dated December 2008, May 2015, and April 2022; April 2022 hearing transcript. A March 2009 VA memorandum indicates that there was insufficient information of record to corroborate the claimed stressors at that time; however, the Veteran has since identified multiple additional stressors, with greater detail, which have not yet been developed by the RO. Remand is required for this purpose. Sixth, a series of VA examinations and opinions are required. To date, the Veteran has not been afforded VA hypertension examination, despite competent evidence of a current condition and a possible nexus to service or a service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see generally VA treatment records (documenting a current diagnosis of hypertension); April 2022 hearing transcript (describing symptoms of hypertension during service, with current symptoms which are impacted by the Veteran's diabetes and psychiatric disorder). While the Veteran has been afforded VA psychiatric and neuropathy examinations, the provided nexus opinions are inadequate upon which to assess the merits of these appeals. Notably, these opinions fail to account for the Veteran's multiple psychiatric diagnoses; do not contemplate the full realm of his reported in-service stressors; and offer opinions based upon an inaccurate factual basis, with a subsequent addendum opinion which offers no rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). New examinations and opinions are required. The above determination is based upon the Veteran's competency to report events capable of lay observation; however, the Board offers no findings as to his credibility at this time. Layno, 6 Vet. App. at 469. The matters are REMANDED for the following actions: 1. Obtain and associate with the record all VA treatment records for the Veteran dated October 2019 to the present, particularly from the VA Medical Center in Beaumont, TX. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. The RO is instructed to ensure that any newly received records are legible once uploaded to the claims file. 2. Obtain any SSA records of the Veteran's relating to his claimed disabilities and associate them with the claims file, including those pertaining to a May 1998 SSA Decision for a claimed psychiatric disability. 3. Ask the Veteran to provide the necessary authorization(s) to obtain: (a.) Private treatment records from the Houston Hospital (as identified during the April 2022 hearing); (b.) Medical records pertaining to the Veteran's former employment with Mobile, particularly with respect to a 1973 diagnosis of hypertension. Then, undertake reasonable efforts to obtain the identified records. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. If possible, the Veteran should attempt to obtain the records himself. 4. Review all statements by the Veteran regarding the purported in-service stressors, including a potential military sexual trauma (MST) (relating to the Veteran's reports of having his drink spiked). Request any additional information needed to develop the claimed stressor(s), including approximate date of the stressor(s), location at the time of the incident, and dates and locations of any resulting medical treatment. Thereafter, attempt to corroborate the Veteran's claimed in-service stressors, including as identified in any prior statements and any statement received as a result of the RO's current development. 5. Obtain VA examinations regarding the etiology of the claimed hypertension, neuropathy, and psychiatric disorders. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. In particular, the hypertension examiner should offer opinions as to the following: (a) Indicate whether the Veteran's hypertension onset within one year of military separation. (b) If not, opine as to whether it is at least as likely as not that the disorder began in service, was caused by service, or is otherwise related to service? Here, the examiner must account for the Veteran's testimony regarding in-service symptoms, related stress, and a subsequent diagnosis within one year of separation. (c) Is it at least as likely as not that the disorder was caused or aggravated by the Veteran's service-connected diabetes; nonservice-connected psychiatric disorder; or the treatment thereof? The neuropathy examiner should offer opinions as to the following: (a) Does the Veteran currently demonstrate neuropathy of the bilateral upper and/or lower extremities? (b) If so, opine as to whether it is at least as likely as not that the disorder began in service, was caused by service, or is otherwise related to service? (c) Is it at least as likely as not that the disorder was caused or aggravated by the Veteran's service-connected diabetes or the treatment thereof? The psychiatric examiner should offer opinions as to the following: (a) Identify all psychiatric disorders shown by the Veteran during the period on appeal. A diagnosis of PTSD must be offered in accordance with VA regulations. (b) For each diagnosis, opine as to whether it is at least as likely as not that the disorder began in service, was caused by service, or is otherwise related to service? Here, the examiner must account for all in-service stressors/incurrences as reported by the Veteran, including: (i) Exposure to casualties during service in Vietnam; (ii) exposure to casualties caused by a ship explosion; (iii) exposure to casualties following a motor vehicle accident at Camp Pendleton; and (iv) an incident when the Veteran believes his drink was drugged. Consistent with Lynch v. McDonough, 21 F.4th 776, 781-82 (2021), the examiner is advised that the term "at least as likely as not" means that the likelihood is at least approximately balanced or nearly equal, if not higher. A finding of "aggravation" does not require a permanent worsening of the disorder; rather, any incremental increase in a nonservice-connected condition attributable to a service-connected disability, whether permanent or not, constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.