Citation Nr: 1541448	
Decision Date: 09/25/15    Archive Date: 10/02/15

DOCKET NO.  13-13 613	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim to compensation under 38 U.S.C.A. § 1151 for a heart condition.

2.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a heart condition.

3.  Entitlement to compensation under 38 U.S.C.A. § 1151 for migraine headaches.

4.  Entitlement to compensation under 38 U.S.C.A. § 1151 for erectile dysfunction.

5.  Entitlement to a special monthly compensation based on loss of use of a creative organ.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Lopez, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1985 to April 1988. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  Jurisdiction is currently with the RO in Seattle, Washington. 

The claims file is now entirely contained in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). 

The issues of entitlement to compensation under 38 U.S.C.A. § 1151 for a heart condition, migraine headaches, and erectile dysfunction, and a special monthly compensation based on loss of use of a creative organ are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  An August 2009 rating decision denied entitlement to compensation under 38 U.S.C.A. § 1151 for a heart condition; the Veteran did not appeal; additionally, no new evidence was received within one year of the August 2009 rating decision.

2.  Since the last final denial in August 2009, VA received relevant medical evidence that shows that the Veteran has a current heart condition.



CONCLUSIONS OF LAW

1.  The August 2009 denial of entitlement to compensation under 38 U.S.C.A. § 1151 for a heart condition became final.  38 U.S.C.A. § 7105 (West 2014).

2.  The requirements to reopen the previously denied claim for compensation under 38 U.S.C.A. § 1151 for a heart condition have been met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(c) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim.  See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 -40 (1995).  New evidence is that which was not previously submitted to agency decision makers.  Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992).  There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered.  There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening.  Shade, 24 Vet. App. at 117-20. 

The RO initially denied entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a heart condition in an August 2009 rating decision.  The RO did not find evidence of a diagnosed heart condition and concluded that the evidence failed to establish that VA treatment was the proximate cause of additional disability.  The Veteran did not appeal this denial.  Further, VA did not receive any additional evidence relating to this issue within one year of notification of the August 2009 denial.  As such, the August 2009 rating decision became final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

Since the last final denial, VA has received medical evidence that shows diagnoses of hypertension with mild tachycardia.  See March 2011 treatment records from the Roseburg VAMC; see also October 2013 VA treatment records from the Puget Sound VAMC.  Additionally, in November 2011, VA received a March 2011 VA treatment record showing that the Veteran is allergic to several medications, namely, Abilify, lithium carbonate/sodium chloride, quetiapine, Tegretol, and trazadone.  This new evidence relates to unestablished elements of the previously denied claim, namely, the element of a current disability and a possible nexus.  Combined with evidence showing that the Veteran complained of severe heart palpitations in January 2007 shortly after starting VA treatment for bipolar disorder, it raises a reasonable possibility of substantiating these claims, as it suggests a potential link between the Veteran's current symptoms and VA treatment.  Therefore, the claim for compensation under 38 U.S.C.A. § 1151 for a heart condition is reopened.  See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a).

The Board notes that the RO conducted a full review of the evidence in the August 2011 rating decision.  As such, the Board has jurisdiction to adjudicate the underlying merits of the issues at this time.


ORDER

New and material evidence having been received, the petition to reopen the claim for compensation under 38 U.S.C.A. § 1151 for a heart condition is granted.



REMAND

The Veteran is claiming entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a heart condition, migraine headaches, and erectile dysfunction, all of which he attributes to medication prescribed by VA.  See July 2015 appellate brief.  He also asserts that he is entitled to special monthly compensation based on loss of use of a creative organ for his erectile dysfunction.

With regard to the heart condition and migraine headaches, the Veteran stated in an April 2011 statement that he has experienced chest pains and headaches since being prescribed psychiatric medications, particularly quetiapine.  In this regard, he indicated that he was admitted to the emergency room at Rogue Valley Medical Center in March 2007 after two days of stabbing chest pains that led him to pass out.  (Treatment records from Rogue Valley Medical Center show a brief March 2007 episode of left facial numbness, dizziness, and left arm weakness, with a diagnosis of dysesthesia, ruling out ischemic attack.)  The Veteran added that following this episode he was told by his VA mental health treatment provider that it was a reaction to his medications and was then prescribed different medications.  He stated that during this time he would go to the gym, but would have to stop his workout due to severe migraines and chest pains, and that this led to VA treatment, where his condition was allegedly described as high pulse rate.  He contends that this condition has disrupted his life and was the cause of him being admitted to the emergency room at the Roseburg VA Medical Center in 2010.  See December 2010 treatment records from Roseburg VAMC.  In November 2011, he submitted a March 2007 treatment record that shows a possible left atrial abnormality.

With regard to his erectile dysfunction, the Veteran attributes it to his heart condition and migraines, and the medications used to treat these and his service-connected disabilities.  See August 2011 notice of disagreement; see also April 2011 statement.  (The Veteran is service-connected for bilateral knee osteoarthritis/patellofemoral pain syndrome and left breast scar from subcutaneous mastectomy from gynecomastia).  In November 2011, he submitted a March 2011 VA treatment record showing that he is allergic to Abilify, lithium carbonate/sodium chloride, quetiapine, Tegretol, and trazadone, and a July 2011 emergency department discharge note from the Roseburg VA Medical Center, showing a list of his active and pending outpatient medications.

The medical evidence shows diagnoses of hypertension with mild tachycardia and erectile dysfunction.  See March 2011 treatment records from the Roseburg VAMC; see also October 2013 VA treatment records from the Puget Sound VAMC.  It also shows complaints of migraines.  See June 2013 VA treatment records from the Puget Sound VAMC.  The record also indicates that the Veteran started to receive treatment for bipolar disorder in November 2006 at the VA Southern Oregon Rehabilitation Center & Clinics (SORCC).  See VA treatment records from November 2006 to December 2007 (in Virtual VA).  In January 2007, he complained of severe heart palpitations, and, in March 2007, of chest pain and headaches.  Furthermore, VA treatment records show that the Veteran is allergic to several medications, including medications used to treat mental health disabilities.  See March 2011 VA treatment record (received in November 2011).

As stated above, the Veteran contends that his claimed disabilities are related to medications prescribed by VA.  The Board finds that the evidence raises the possibility that such conditions might be related to medications prescribed by VA.  As such, the Board finds that the AOJ should obtain a VA opinion on these issues.  As it appears that there is not a current diagnosis of migraine headaches, the AOJ should schedule the Veteran for a VA examination with regard to that issue.

Accordingly, the case is REMANDED for the following action:

1.  Arrange for the Veteran to be examined by an examiner with appropriate expertise in connection with his claims on appeal.  The examiner should review the claims folder, to include lay statements submitted by the Veteran during the course of his appeal.

The examiner should respond to the following:

(a)  The examiner should confirm whether the Veteran has a current migraine headaches disability.

(b) If so, are the Veteran's current migraine headaches at least as likely as not related to a medication prescribed by VA?

(c)  If so, did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider in prescribing that medication to the Veteran?

(d)  Is the Veteran's current hypertension with tachycardia at least as likely as not related to a medication prescribed by VA?

(e)  If so, did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider in prescribing that medication to the Veteran?

(f)  Is the Veteran's current erectile dysfunction at least as likely as not related to a medication prescribed by VA?

(g)  If so, did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider in prescribing that medication to the Veteran?

(h)  Is the Veteran's current erectile dysfunction at least as likely as not related to medication prescribed to treat his service-connected disabilities?

The provider should give rationale for all opinions and consider all lay and medical evidence of record.  If an opinion cannot be reached without resort to speculation, court cases require the examiner to explain whether the lack of certainty is due to the limitations of medical or scientific knowledge or insufficient evidence.
 
2.  If any benefit sought on appeal remains denied issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  All claims remanded for additional development or other appropriate action must be handled expeditiously.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs