Citation Nr: 0623407 Decision Date: 08/07/06 Archive Date: 08/15/06 DOCKET NO. 98-17 645A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a gastrointestinal disability, secondary to medication prescribed for service- connected knee and low back disabilities. 2. Entitlement to service connection for a gastrointestinal disability, secondary to medication prescribed for service- connected knee and low back disabilities. 3. Entitlement to service connection for an acquired psychiatric disorder, secondary to service-connected knee and low back disabilities. 4. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from December 1987 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) from a July 1998 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claims for service connection a gastrointestinal disability, secondary to medication prescribed for service- connected knee and low back disabilities, for an acquired psychiatric disorder, secondary to service-connected knee and low back disabilities, and for a cervical spine disability, to include as secondary to a service-connected low back disability. Service connection for a gastrointestinal disability was previously denied in an April 1993 RO decision. The claim presently on appeal is framed as a gastrointestinal disability, secondary to medication prescribed for service- connected knee and low back disabilities. However, the Board finds that the prior adjudication was of the same claim, however styled. See Ashford v. Brown, 10 Vet. App. 120 (1997). Thus, although the RO has adjudicated the issue of entitlement to service connection for a gastrointestinal disability on the merits, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Lastly, in an October 1997 letter to the RO, the veteran appears to have raised a claim to reopen his previously denied claim for service connection for TMJ. The Board refers this matter to the RO for appropriate action. The issues of entitlement to service connection for an acquired psychiatric disorder, secondary to service-connected knee and low back disabilities, and for a cervical spine disability, to include as secondary to a service-connected low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The claim for service connection for a gastrointestinal disability was previously denied in an April 1993 rating decision; the veteran did not appeal that decision. 2. Evidence received since the April 1993 decision includes some evidence which is not cumulative or redundant, and which is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran's gastrointestinal disability (gastroesophageal reflux disease and hiatal hernia) is a result of the use of medications prescribed for his service- connected orthopedic disabilities. CONCLUSIONS OF LAW 1. The April 1993 rating decision that denied service connection for a gastrointestinal disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2005). 2. New and material evidence has been received to reopen a claim for service connection for a gastrointestinal disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (1997). 3. The veteran's gastrointestinal disability is proximately due to or the result of his service-connected orthopedic disabilities. 38 U.S.C.A. §§ 1110; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence In a decision dated in April 1993, the RO denied the veteran's claim for service connection for a gastrointestinal disability. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2005). Thus, the April 1993 decision became final because the appellant did not file a timely appeal. The claim for entitlement to service connection for a gastrointestinal disability may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran filed this application to reopen his claim in January 1998. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means evidence that bears directly and substantially upon the specific matter under consideration, and which by itself, or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of 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. 38 C.F.R. § 3.156(a) (1997). The Board notes, as an aside, that the definition of "new and material evidence" has been changed, but the latest definition only applies to applications to reopen a finally decided claim received by VA on or after August 29, 2001; thus, this change does not apply to the instant case because the claim to reopen was received before that date. See 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001); 38 C.F.R. § 3.156(a) (2005). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence before VA at the time of the prior final decision consisted of the veteran's service medical records, post-service VA and private records, and the veteran's statements. The RO found that there was no evidence of a current gastrointestinal condition, and the claim was denied. After the denial of his claim for service connection for a back disability, the veteran sought to reopen the claim in January 1998. The Board finds that the evidence received since the last final decision is not cumulative or redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. Among the newly received evidence is November 1996 treatment record which notes that the veteran complained of stomach discomfort and reflux, and in which he is diagnosed with dyspepsia. Earlier-dated records note similar complaints but do not contain a diagnosis. The Board finds this evidence to be both new and material because it establishes a current diagnosis of a gastrointestinal condition. This evidence was not previously considered by agency decision makers, is not cumulative or redundant, bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Thus, the claim for service connection is reopened. This does not mean that service connection is granted. Rather, the merits of the claim for service connection will have to be reviewed on a de novo basis, as addressed below. As the Board has determined that new and material evidence has been submitted, it is necessary to consider whether the appellant would be prejudiced by the Board proceeding to a decision on the merits. In this case, the statement of the case and supplemental statements of the case provided the appellant with the laws and regulations pertaining to consideration of the claim on the merits. Also, the appellant has provided arguments addressing his claim on the merits. The Board therefore finds that, given that the appellant had adequate notice of the applicable regulations, he would not be prejudiced by the Board's review of the merits of the claim at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for certain chronic diseases, including peptic ulcers, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2005). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2005). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2005). Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service." Watson v. Brown, 309, 314 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service- connected disability. 38 C.F.R. § 3.303, 3.310. The veteran's service medical records indicate that he was first prescribed nonsteroidal anti-inflammatory drugs (NSAIDs) including Naprosyn in 1988 for treatment of pain associated with his right knee and low back disabilities. Post-service medical records indicate that the veteran continued to take NSAIDs for relief of pain, and that in September 1989 he first complained of gastrointestinal intolerance that his treating physician felt might be related to NSAID use. He was prescribed medication including Mylanta for treatment of gastrointestinal distress beginning in May 1990. Private treatment records dated in March 1997, January 1999, and September 2003 found that the veteran's gastrointestinal disorders were related to NSAIDs. Treatment records indicate that the veteran continued to take NSAIDs for relief of pain until approximately 1997. A June 1998 report of VA examination noted that a 1997 upper gastrointestinal series revealed gastroesophageal reflux disease (GERD) and a hiatal hernia. The veteran had continued to take NSAIDs for pain relief (of his service- connected low back disability) until they were discontinued secondary to gastrointestinal distress in 1997. The examiner noted that the most important aggravating factor of his GERD and hiatal hernia was NSAID use. In a January 1999 private report of examination, the examiner found that the veteran's hiatal hernia with GERD, including esophagitis II-III gastritis and duodenal ulcer were related to NSAID use, and aggravated by helicobacter pylori infection. The Board finds that the evidence in this case supports the veteran's claim, and there is no evidence to the contrary on any issue relevant to entitlement to service connection. The private treatment records dated in March 1997, January 1999, and September 2003, the June 1998 VA report of examination, and the January 1999 private opinion finding a relationship between NSAID use and the veteran's current gastrointestinal disorders are persuasive corroboration of the veteran's contentions. Accordingly, the Board finds that service connection for a gastrointestinal disability as secondary to medication prescribed for treatment of service-connected knee and low back disabilities is warranted. Resolving all reasonable doubt in favor of the veteran, the Board concludes that the veteran is entitled to service connection on a secondary basis for a gastrointestinal disability. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA duties pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the veteran. ORDER The claim for service connection for a gastrointestinal disability is reopened. Service connection for a gastrointestinal disability is granted. REMAND Additional development is necessary prior to further disposition of the claims for service connection for an acquired psychiatric disorder, secondary to service-connected knee and low back disabilities, and for a cervical spine disability, to include as secondary to a service-connected low back disability. In June 1998 opinions, VA examiners found that the veteran's currently diagnosed dysthymic disorder and degenerative joint disease of the cervical spine were unrelated to both the veteran's period of active service and to his service- connected knee and back disabilities. The rationale provided for the opinion finding no relationship between the veteran's psychiatric disorder and his service-connected disabilities was that there was no evidence of any psychiatric trouble prior to a February 1997 motor vehicle accident in which the veteran was injured, suggesting that the psychiatric problems were related to the later injury rather than any service- related disabilities. The rationale provided for the opinion finding no relationship between the veteran's neck problems and his active service, including his service-connected low back disability was that the veteran did not complain of neck pain either in service or for many years after his discharge from service, suggesting that the etiology of his neck pain was post-service in nature. Following the June 1998 examinations, the veteran submitted additional medical evidence which demonstrates that as early as September 1989 the veteran was noted to be quite anxious about his right knee disability. Private records dated in February 1990 show that he complained of and was assessed with experiencing anxiety and depression related to his service-connected injuries. These records also indicate that he was prescribed Valium for treatment of these conditions in March 1990. Treatment records dated from March 1990 to August 1996 show that the veteran continued to complain of anxiety and that he received periodic treatment for psychiatric problems. Based upon this additional evidence, it appears that the veteran had psychiatric complaints and treatment well before his February 1997 motor vehicle accident. The Board thus finds that an additional opinion addressing the etiology of the veteran's psychiatric disorders is necessary. Similarly, additionally submitted medical evidence demonstrates that the veteran complained of neck pain, in addition to pain and numbness radiating from his neck into his arms in September 1995. Additionally, a September 2003 private opinion relates the veteran's cervical spine condition to his service-connected orthopedic disabilities. With the addition of this evidence, the Board finds that an additional etiological opinion, which reconciles the various etiological opinions of record, is necessary. As the factual basis upon which the June 1998 opinions were rendered has changed, the Board finds that the claims must be remanded for an additional examination and etiological opinion. Accordingly, the case is REMANDED for the following actions: 1. Schedule the veteran for a VA orthopedic examination for the purpose of ascertaining the etiology of his cervical spine disorder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner report should indicate that the claims folder has been reviewed, and that the examiner has taken into account the private and VA medical records of prior treatment referable to neck pain, including radiculopathy into the upper extremities. Based upon a review of the historical records and medical principles, the examiner should provide an opinion as to whether there is a 50 percent or greater probability that the veteran's cervical spine disorder is related to either his period of active service, or to his service-connected low back disability. The examiner should specifically address and reconcile this opinion with the various opinions of record finding that the veteran's cervical spine disorder is related to his low back disability and the injuries he sustained in service. If the examiner feels that the requested opinion cannot be given without resort to speculation, the examiner should so state. 2. Schedule the veteran for a psychiatric examination for the purpose of ascertaining the nature and etiology of any acquired psychiatric disorder. The examiner should specifically opine as to whether any psychiatric disorder is related to the veteran's service- connected orthopedic disabilities. The examination should include a review of the veteran's history and current complaints, as well as a comprehensive mental status evaluation. All established psychiatric diagnoses should be fully set forth. The claims file must be made available to and be reviewed by the examiner. The examiner must indicate that the claims file was reviewed in conjunction with the examination. The examiner should provide an opinion as to whether there is a 50 percent probability or greater that any psychiatric disorder is causally or etiologically related to any incident of the veteran's service, including his service-connected knee and low back disabilities. Any opinion expressed by the examiner must be accompanied by a complete rationale. If necessary, the examiner should reconcile this opinion with any other opinions of record. 3. Then, after ensuring any other necessary development has been completed, readjudicate the claims for service connection for an acquired psychiatric disorder, secondary to service-connected knee and low back disabilities, and for a cervical spine disability, to include as secondary to a service-connected low back disability. If action remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and allow him an appropriate opportunity to respond thereto. Thereafter, the case should be returned to this Board. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matters the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs