Citation Nr: 0944447 Decision Date: 11/20/09 Archive Date: 11/25/09 DOCKET NO. 07-06 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and, if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a gastrointestinal disorder, and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty from August 1963 to December 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the psychiatric disorder claim and the gastrointestinal disorder claim were both originally denied in a November 1977 rating decision. In a November 1978 decision, the Board upheld the RO's denial of the appellant's two claims. The November 1978 Board decision therefore represents the last final decision on the merits as to each one of these two issues. The appellant thereafter attempted to reopen these two claims, but the RO found, in a rating decision issued in May 1981, that no new and material evidence had been received. In a March 1983 decision, the Board upheld the RO's denials of reopening. The appellant subsequently attempted to reopen his claim of entitlement to service connection for a psychiatric disorder; however, the RO denied reopening of the claim in rating decisions issued in August 1998 and June 2003. No appeal was taken from any of these rating actions, and the June 2003 rating decision thus represents the last final decision on any basis. In January 2007, the appellant submitted additional evidence to the RO that is relevant to the issues on appeal. However, no readjudication of the claims was undertaken by the RO and no Supplemental Statement of the Case (SSOC) pertaining to that evidence was issued. Although the additional evidence in question is neither duplicative of other evidence nor irrelevant, this evidence need not be referred back to the RO because the appellant's claims have been resolved in his favor in the decision below. In August 2009, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge. A transcript is in the claims file. FINDINGS OF FACT 1. In a rating decision dated in November 1977, the RO denied service connection for psychiatric and gastrointestinal disorders; the Board upheld the denials in a decision issued in November 1978. 2. In a rating decision dated in May 1981, the RO denied the reopening of the psychiatric and gastrointestinal disorder service connection claims; the Board upheld the reopening denials in a decision issued in March 1983. 3. The RO denied the reopening of the psychiatric disorder service connection claim in rating decisions issued in October 1990, August 1998, and June 2003; those decisions became final when no appeal was perfected to the Board. 4. The additional evidence added to the record since the June 2003 rating decision, by itself and/or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the appellant's claim for service connection for a psychiatric disorder, and raises a possibility of substantiating that claim. 5. The additional evidence added to the record since the March 1983 Board decision, by itself and/or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the appellant's claim for service connection for a gastrointestinal disorder, and raises a possibility of substantiating that claim. 6. Considering the new and material evidence with the evidence previously of record, a reasonable doubt is raised that the appellant has an anxiety disorder which is attributable to his active military service. 7. The appellant's currently diagnosed gastrointestinal disorder (gastroesophageal reflux disease (GERD)) has been aggravated by his service-connected anxiety disorder. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, the criteria for service connection for an anxiety disorder have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(a) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. Service connection is warranted for aggravation of the appellant's GERD secondary to the service-connected anxiety disorder. 38 U.S.C.A. §§ 1101, 1110, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Given the fully favorable decisions contained herein, the Board finds that any defect in the notice or assistance provided to the Veteran constitutes harmless error. II. The Merits of the Claims In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. New and material evidence Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. The United States Court of Appeals for Veterans Claims (Court) has held that the new and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The November 1978 Board decision, in which the appellant's psychiatric and gastrointestinal disorder service connection claims were finally disallowed on the merits, is final. 38 C.F.R. § 20.1103. Neither claim may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108; 38 C.F.R. § 3.156(a). The Court has held that the new and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The March 1983 Board decision is final, as is the June 2003 rating decision. 38 C.F.R. § 20.1103. While the appellant was notified of the June 2003 denial in that same month, he did not submit a Notice of Disagreement (NOD) within the time period allowed. Therefore, the appellant's gastrointestinal claim may be reopened only if new and material evidence has been secured or presented since the March 1983 Board decision and the psychiatric claim may be reopened only if new and material evidence has been secured or presented since the June 2003 rating decision. See Glynn v. Brown, 6 Vet. App. 523 (1994). The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Proper analysis of the question requires a determination of whether the claim should be reopened and, if so, an adjudication on the merits after compliance with the duty to assist. The evidence considered by the RO in making its June 2003 decision included the appellant's service medical treatment records; the appellant's service personnel records; his VA Forms 21-526 and various written statements; testimony from the appellant and his wife given during a personal hearing at the RO in September 1990; the reports from VA medical and psychiatric examinations conducted in January 1982, and October 1989; the reports of private medical treatment dated in 1990 and 1991; and the reports of VA treatment dated between 1981 and April 2003. The evidence added to the record subsequent to the issuance of the June 2003 rating decision includes written statements from the appellant and his representative; written statements from his spouse and daughter; written statements from VA psychologists dated in 2005;VA treatment records dated between 2003 and 2006; an October 2006 VA medical opinion; and the transcript from the August 2009 Travel Board hearing. The Board finds that the new evidence added to the record after June 2003 has direct bearing on the issue of service connection for a psychiatric disorder and, therefore, is material. In short, the added evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder, namely a nexus between service and a currently diagnosed anxiety disorder. Because the credibility of the evidence is presumed for the purpose of reopening, the Board finds that the evidence cited above constitutes new and material evidence sufficient to reopen the claim for service connection for a psychiatric disorder. Turning to the gastrointestinal disorder claim, the evidence considered by the Board in making its March 1983 decision included the appellant's service medical treatment records; his September 1977 VA Form 21-526; VA treatment reports dated in 1981; and the reports of VA psychiatric and medical examinations conducted in January 1982. The evidence added to the record subsequent to the issuance of the March 1983 Board decision includes written statements from the appellant and his representative; written statements from his spouse and daughter; testimony from the appellant and his wife given during a personal hearing at the RO in September 1990; the report from a VA medical examination conducted in October 1989; the reports of private medical treatment dated in 1990 and 1991; written statements from VA psychologists dated in 2005;VA treatment records dated between 1988 and 2006; an October 2006 VA medical opinion; and the transcript from the August 2009 Travel Board hearing. The Board finds that the new evidence added to the record after March 1993 has direct bearing on the issue of service connection for a gastrointestinal disorder and, therefore, is material. In short, the added evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a gastrointestinal disorder, namely a diagnosis of a chronic gastrointestinal disorder, GERD, and a nexus between the currently diagnosed GERD and a service- connected disability. Because the credibility of the evidence is presumed for the purpose of reopening, the Board finds that the evidence cited above constitutes new and material evidence sufficient to reopen the claim for service connection for a gastrointestinal disorder. Having determined that both the psychiatric disorder claim and the gastrointestinal disorder claims can be reopened, the Board will now conduct a de novo review of the merits of these claims. B. Service connection A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a). There must be medical evidence of a nexus relating an in-service event, disease, or injury, and a current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993). To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Certain chronic disabilities may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Court has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a non-service- connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). During the pendency of this claim and appeal, an amendment was made to the provisions of 38 C.F.R. § 3.310. 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non- service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, supra, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of secondary service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. The present case predates the regulatory change. Given what appear to be substantive changes, our analysis of secondary service connection in the present appeal considers the version of 38 C.F.R. § 3.310 in effect before the change, which version is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. No psychiatric or gastrointestinal abnormalities were noted during the appellant's service entrance examination. Subsequent service medical treatment records document complaints and treatment for anxiety and a psychophysiologic gastrointestinal disorder. When the appellant was psychiatrically evaluated in service, his condition was clinically reported to stem from mental impairment or, to be more exact, a moderate impairment of intelligence. A September 1964 letter from a private physician included a diagnosis of gastritis with subnormal blood pressure and nervousness. Army mental health personnel concluded that the appellant's nervousness and anxiety were manifestations of his inability, due to his underlying mental impairment, to appropriately contend with his service situation. The appellant was treated for gastritis in service. However, no abdominal abnormalities were noted at discharge and there was no evidence of any chronic gastrointestinal disorder within one year after service separation. The in-service episodes of gastritis were considered acute and transitory and not productive of chronic gastrointestinal pathology. Post-service, the January 1982 VA examination reports included diagnoses of generalized anxiety disorder, somatization disorder (gastrointestinal type), small hiatal hernia, and status post duodenal ulcer. The October 1989 VA medical examination yielded a diagnosis of GERD. The May 1990 discharge summary from a private hospital includes diagnoses of anxiety and depression. More recently, in VA medical treatment records dated in 2004, for example, the clinical evidence indicates that the appellant takes prescription medication for the treatment of anxiety. The evidence of record includes a medical opinion from a long-time VA treating physician for the appellant, dated in October 2006. This VA doctor stated that the appellant had current diagnoses of GERD with grade II esophagitis as per testing conducted in July 2005, gastroenteritis, depression, and anxiety. The VA physician stated that, based on his contact with the appellant as well as his post-service employment record, the appellant had a low average to average intelligence level and not the low level ('moron' in the clinical parlance of the day) diagnosed in service. The VA physician further stated that the appellant has been an anxious patient over the years since service and that the anxiety disorder remained an ongoing problem for the appellant. The VA doctor opined that it was as likely as not that the appellant's anxiety disorder had its origins in his military service. In relation to the appellant's gastrointestinal claim, the VA doctor stated that the appellant had a current diagnosis of reflux esophagitis and gastritis and that he required daily medication to treat this condition. The VA physician further stated that anxiety disorder can have a direct negative impact on the stomach by worsening the gastritis and esophagitis. The October 2006 competent VA medical evidence is uncontradicted. In this case, the medical evidence of record demonstrates that the appellant experienced anxiety in service and there is some evidence of continuity of anxiety symptoms since service to the present. For these reasons, the Board finds that evidence for and against the appellant's claim is at least in relative equipoise on the question of whether the currently diagnosed anxiety disorder is related to service. Resolving reasonable doubt in favor of the appellant, the Board finds that service connection for an anxiety disorder is warranted. In weighing the evidence of record in the present case, the Board finds that the weight of the evidence reasonably supports the determination that the appellant's GERD is causally related to his service-connected anxiety disorder disability, based upon the medical evidence that the reflux esophagitis and gastritis condition has been aggravated by the anxiety disorder disability. Therefore, service connection is warranted for the aggravation of the appellant's gastrointestinal disorder (GERD). ORDER Service connection for anxiety disorder is granted. Service connection for aggravation of GERD is granted, as secondary to the service-connected anxiety disorder disability. __________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs