Citation Nr: 1315542 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 03-02 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cardiovascular disability, claimed as an enlarged heart. 2. Entitlement to service connection for an enlarged prostate. 3. Entitlement to service connection for a gastrointestinal disability, claimed as gastroesophageal reflux disease (GERD), to include as secondary to service-connected disability. 4. Entitlement to service connection for depression, to include as secondary to service-connected disability. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability. 6. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. 7. Entitlement to a disability rating for hepatitis C in excess of 10 percent prior to December 31, 2007, and in excess of 20 percent thereafter. 8. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 9. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran has active military service from September 1975 to September 1979. These matters come to the Board of Veterans' Appeals (Board) following appeals of June 2001, October 2001, and February 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2003 and November 2007, the Veteran testified before a Decision Review Officer (DRO) at the Waco RO. Transcripts of both hearings are of record. Additionally, at the November 2007 hearing, the Veteran withdrew from appellate consideration his claim for cold weather injuries of the feet. In October 2011, the Board remanded the Veteran's claims for additional development. Following the completion of the development requested, the Appeals Management Center (AMC) continued the denial of the Veteran's claims and issued a supplemental statement of the case (SSOC) in November 2012. The Veteran's claim has since been returned to the Board for further appellate review. Also, of record, is an August 2010 statement (VA Form 21-4138) received by the RO, which is labeled "Notice of Disagreement: on Clothing Allowance." Any decision regarding an annual clothing allowance is made by a claimant's local VA medical center. The claims file review does not reflect any adverse decision with respect to a claim for an annual clothing allowance. If the Veteran is attempting to file a claim for an annual clothing allowance, he should submit a VA Form 10-8678 (Application for Annual Clothing Allowance) to the prosthetic representative at his local VA medical center. Finally, in a January 2013 informal hearing presentation, the Veteran's representative requested that the Veteran receive a separate disability rating for cholelithiasis (gallstones) as secondary to hepatitis C. This issue has not been adjudicated by the RO. As such, the issue of service connection for cholelithiasis, to include as secondary to service-connected disability, is referred to the agency of original jurisdiction (AOJ) for consideration. (The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability is discussed in the decision below. The underlying question of service connection for a back disability, as well as the remaining claims on appeal, are addressed in the remand that follows the decision.) FINDINGS OF FACT 1. In a September 2002 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claim for service connection for a back disability. The Veteran was notified of the decision but did not appeal. 2. Evidence received since the RO's September 2002 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A September 2002 rating decision that determined that new and material evidence had not been received to reopen a claim for service connection for a back disability is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2012). 2. New and material evidence has been received, and the Veteran's claim for service connection for a back disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system. By way of history, the Veteran's service treatment records reflect that in July 1978 he was noted to complain of low back pain for 11/2 months. Evaluation at that time revealed pain with bending and with palpation. Further evaluation revealed tightness in the muscles of the back. The assessment was sprain of the back. During a separation medical examination no complaint, clinical finding, or a diagnosis associated with a back disorder was noted. After service, in a May 1999 rating decision, the RO denied the Veteran's claim for service connection for a back disability. The RO concluded that there was no permanent residual or disability of the low back shown at the time of the Veteran's separation from service or by evidence following service. The Veteran did not appeal that decision and it became final. In the above noted September 2002 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claim for service connection for a back disability. In particular, the RO noted that post-service treatment records reflected complaints and treatment for back pain but otherwise the records provided no evidence of a relationship between the back pain and the Veteran's period of service. In particular, the RO was noted to have considered VA treatment records dated from January 2001 to April 2002. The Veteran was notified of the September 2002 rating decision and the denial of his claim. He did not appeal the decision; thus, the September 2002 rating decision became final. 38 U.S.C.A. § 7105. In November 2006, the Veteran sought to reopen his claim. Under pertinent legal authority, VA may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 United States Court of Appeals for Veterans Claims (Court) has held that when determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the evidence received could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to the Court's holding in Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist to provide a medical opinion, which might raise a reasonable possibility of substantiating the claim. The basis of the RO's September 2002 denial was that evidence reflected back pain but otherwise not a diagnosed back disability. See e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Further, the RO also found a lack of any evidence relating a back disability to the Veteran's period of active service. The evidence received subsequent to the final September 2002 rating decision includes, in particular, VA outpatient treatment records and diagnostic studies documenting findings of lumbar degenerative changes and disc herniations. The Board finds that the above noted evidence to be new and also finds the evidence to be material-the evidence relates to an unestablished fact necessary to substantiate the Veteran's claim. In other words, the new evidence provides support of a current back disability, an unestablished fact absent at the time of the final September 2002 rating decision. As a current back disability was an element not present in the prior final denial, the Board finds that the evidence is sufficiently material to reopen the Veteran's claim. Shade, 24 Vet. App. at 117. Accordingly, the Board finds that evidence received subsequent to the September 2002 rating decision is new and material and serves to reopen the claim for service connection for a back disability. The Board cannot at this point, however, adjudicate the reopened claim of service connection, as further development of the claim is necessary prior to a final adjudication of the claim. The specific evidentiary development needed is discussed in detail in the remand below. ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened; to that limited extent, the appeal is granted. REMAND As noted above, the Board remanded the Veteran's claims in October 2011. Further review of the claims file reflects additional development is necessary prior to appellate consideration by the Board of the Veteran's appeal. With respect to the Veteran's treatment for hepatitis C, the Board notes that the Veteran has undergone antiviral treatment with interferon and ribavirin. The specific dates of that treatment are not exactly clear. Of record, an October 2004 statement from a Temple (Texas) VA Medical Center (VAMC) nurse practitioner (NP) identifies the Veteran as undergoing antiviral treatment at that time, October 2004, and that he was scheduled for such treatment over the next 48 weeks. (See Vol. 5 of the claims file.) The Veteran has identified being treated at the Dallas VAMC, the Shreveport VAMC, as well as the Temple VAMC. In particular, the physical claims file reflects treatment records from the Temple VAMC dated to September 2004. An October 4, 2004 VAMC Temple liver biopsy report is also of record. Thereafter, in November 2006, the Veteran submitted VAMC Temple treatment records dated in April 2004, October 2006, and November 2006. (See Vol. 4 of the claims file.) In particular, a November 2006 VA M.D. note reflected the Veteran's hepatitis C to be stable. Otherwise, the Veteran's physical claims file does not reflect records pertaining to his anti-viral treatment at the Temple VAMC beginning in October 2004. His electronic claims file (Virtual VA) reflects only Temple VAMC records dated from December 2010 to May 2012. The Veteran has reported a history of antiviral treatment at the Temple VAMC, and various treatment records reflect such a reporting; however, the length of any such treatment (possibly the full 48 weeks) is unknown. The Board notes that VA medical records pertaining to the Veteran's treatment for hepatitis C are relevant to his claims on appeal for a higher rating for hepatitis C; for service connection for depression, to include as secondary to hepatitis C; as well as for service connection for erectile dysfunction, to include as secondary to anti-depressive medications. Furthermore, such records could conceivably be relevant to the Veteran's remaining claims on appeal, depending on the information the records contain. Therefore, as there would appear to be identified VAMC Temple medical records not associated with the claims file and their relevancy to the Veteran's claims on appeal is unknown, remand is necessary to obtain any VAMC Temple treatment records dated from October 2004 to November 2010 prior to the Board's consideration of the Veteran's appeal. 38 U.S.C.A. § 5103A(c)(1), (3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). The Board also finds additional development, in particular, VA medical examinations, is necessary before deciding the claims for service connection for a back disability, for an enlarged prostate, for depression, and for a gastrointestinal disability claimed as GERD. Here, the Veteran's STRs, as noted previously, reflect treatment for a back sprain. In a November 2001 VA treatment record, the Veteran reported that his low back pain had started more than 20-years previously while on active duty after bumping his back while getting into a tank. He also reported suffering from on again and off again spasms in his low back. The Veteran has been diagnosed with lumbar degenerative changes and disc herniations. The Board also notes that the Veteran's STRs reflect a finding in September 1978 of an enlarged prostate and also prostatitis. A post-service VA mental health physical assessment evaluation in July 2001 revealed a normal prostate in shape and size. Thereafter, a November 2006 VA treatment note reflected the examiner's clinical finding of an enlarged prostate. Since then, VA records have documented diagnoses of benign prostatic hypertrophy (BPH). The Board is mindful that the evidence does not appear to link any current back disability or prostatic condition to the Veteran's period of service. Nonetheless, keeping in mind the low threshold required to show that a current disability may be associated with service, and in light of the above evidence, the Board finds that the Veteran should be afforded medical examinations to obtain opinions as to the possible relationship between any current back disability and current prostatic condition and his period of active military service. McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 U.S.C. § 5103A(d)(2) (West 2002). The Board also finds that additional medical opinions should be sought with respect to the Veteran's claims for service connection for depression and for gastrointestinal disability, claimed as GERD. With respect to the Veteran's claim for service connection for depression, to include as secondary to service-connected disability, in the report of October 2003 VA mental disorders examination, the examiner diagnosed the Veteran with polysubstance abuse and alcohol-induced mood disorder. The examiner commented that the mood disorder was not related to the Veteran's service-connected hepatitis C, and that the Veteran's continued consumption of alcohol was the most likely factor aggravating the Veteran's depression. No further explanation was provided by the examiner. The Veteran was again examined in December 2007. In a report of December 2007 VA mental disorders examination, the examiner diagnosed the Veteran with polysubstance dependency and substance-induced mood disorder. The examiner commented that the Veteran's mood instability was related to his drug and alcohol consumption. Furthermore, the examiner commented that the Veteran's anxiety and depression tended to be the result of the Veteran's long-term pattern of drug and alcohol use. No further explanation was provided by the examiner. With respect to the Veteran's claim for service connection for gastrointestinal disability, claimed as GERD, to include as secondary to service-connected disability, in a report of September 2003 VA examination, the examiner commented that the Veteran did not have GERD but possibly "peptic acid syndrome" secondary to arthritis medication but not interferon or depression. No explanation or rationale was provided for the examiner's opinion. An additional report of September 2003 VA examination noted that GERD had not been found either clinically or by diagnostic testing, and that interferon was not known to cause GERD. A subsequent report of December 2007 VA examination reflects the examiner's conclusion that the Veteran did have GERD but the disease was not related to hepatitis. The examiner cited to medical literature in support of his opinion without any further discussion or analysis. The Board notes that VA is not required to provide a medical examination in all cases; however, once it does undertake the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that the Board may not assess probative value of "a mere conclusion by a medical doctor"); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In the present case, the medical opinion evidence pertaining to the claims for service connection for depression and for gastrointestinal disability, claimed as GERD, is insufficient for purposes of appellate review of those claims. Here, the Board finds a lack of supporting analysis and discussion to support the ultimate opinions of the examiners. As such, remand is required to obtain new opinions for the purpose of determination the relationship, if any, between the Veteran's depression and his GERD and service-connected disability, to include hepatitis C. 38 U.S.C.A. § 5103A(d)(2). With regard to the Veteran's increased rating claims for hepatitis C and for peripheral neuropathy of the lower extremities, the Board notes that the Veteran's most recent VA C&P examinations for hepatitis C and for peripheral neuropathy were conducted in July 2009. Although evidence submitted between the date of a VA examination and the Board's review could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); 38 U.S.C. § 5103A(d)(2). Nonetheless, in light of the need to remand both claims for the purpose of obtaining the above identified VAMC Temple treatment records, and the fact that it has been almost four years since the Veteran's was last examined, appropriate VA examinations should be scheduled to obtain a current assessment of the severity of the Veteran's service-connected hepatitis C as well as his peripheral neuropathy of the lower extremities. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Further, entitlement to a TDIU is raised where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has also held that, when evidence of unemployability is presented in cases, such as this appeal, the issue of whether a TDIU will be assigned should be handled during the determination of the initial disability rating. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In the present case, the Board notes that the Veteran has sought a higher rating for both his service-connected hepatitis C and for his peripheral neuropathy of the lower extremities. Furthermore, the record demonstrates the Veteran as being unemployed, and he is currently in receipt of Social Security Administration disability benefits. In light of the Court's holding in Rice, and the Board's conclusion that the evidence of record raises a claim for a TDIU per Roberson, that aspect of the Veteran's claim for compensation benefits (i.e., consideration of a TDIU) should be addressed on remand. Finally, in light of consideration of the TDIU issue, the Veteran should also be sent an additional notice letter notifying him of the information and evidence necessary to substantiate a claim of entitlement to a TDIU. See 38 C.F.R. § 3.159(b)(1) and the Veterans Claims Assistance Act of 2000 (VCAA). Accordingly, the case is REMANDED for the following action: (For the benefit of the examiners providing the VA medical examinations, as discussed below in action paragraphs 3-5, the AOJ should not remove the Board's tabs in the claims file.) 1. Obtain and associate with the claims file any available VAMC Temple treatment records dated from September 2004 to November 2010. Also obtain and associate with the claims file any available VA treatment records dated since May 2012. (The Veteran's treatment is apparently through the Dallas VAMC, Temple VAMC, and the Shreveport VAMC.) 2. Provide the Veteran and his representative with a corrective VCAA notice letter on the issue of entitlement to a TDIU. The Veteran and his representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 3. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), schedule the Veteran to undergo appropriate VA examinations pertaining to his back disability, prostatic condition, depression, peripheral neuropathy, and hepatitis C. The claims file and a copy of this remand must be reviewed by the examiners in conjunction with their examinations. Any tests and studies deemed necessary should be conducted and the clinical findings should be reported in detail. Back Disability The examiner should elicit a detailed history from the Veteran concerning problems with his low back. The examiner's claims file review should include, in particular, a review of the Veteran's service treatment records; tabbed treatment records regarding the Veteran's back; as well as a November 27, 2001 PM&R Attending Consult Note, which notes the Veteran's reported history regarding his back symptoms. (See Vol. 2 of the claims file.) Following examination of the Veteran and review of the claims file, the examiner should offer his/her opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater), that any diagnosed low back disability had its clinical onset during service or is otherwise related to service. The medical basis for any conclusion reached should be thoroughly explained. Enlarged Prostate The examiner should elicit a detailed history from the Veteran concerning problems associated with his prostate, to include BPH. The examiner's claims file review should include, in particular, the Veteran's service treatment records, July 2001 VA mental health physical assessment evaluation which notes a normal prostate examination (See Vol. 2 of the claims file), a November 2006 VA MD note which reflects an enlarged prostate (See Vol. 4 of the claims file), as well as various tabbed treatment records pertaining to BPH. Following examination of the Veteran and review of the claims file, the examiner should offer his/her opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater), that any diagnosed prostate disorder had its clinical onset during service or is otherwise related to service. The medical basis for any conclusion reached should be thoroughly explained. Depression The examiner should elicit a detailed history from the Veteran concerning his depression. The examiner's claims file review should include, in particular, the Veteran's service treatment records, report of October 2003 VA examination (See Vol. 3 of the claims file), report of December 2007 VA examination (See Vol. 5 of the claims file), as well as various tabbed treatment records pertaining to depression. Following review of the claims file and examination of the Veteran, the examiner should opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater), that any diagnosed depression, or other psychiatric disorder, had its clinical onset during service or is otherwise related to service, or that any such diagnosed disorder was caused or aggravated (permanently worsened beyond its normal progression) by service-connected disability. In particular, the examiner should comment on whether any depression was caused or aggravated by service-connected hepatitis C or antiviral treatment thereof. The medical basis for any conclusion reached should be thoroughly explained. Peripheral Neuropathy The examiner should elicit a detailed history from the Veteran concerning problems and symptomatology associated with his peripheral neuropathy of the lower extremities. The examiner's claims file review should include those various tabbed treatment records and VA examinations pertaining to peripheral neuropathy. Any appropriate testing should be conducted and the results associated with the examiner's report. With respect to peripheral neuropathy and its affect on the Veteran's lower extremities, the examiner should provide answers, to the extent allowable, to the following, a. Identify the nerves impaired (e.g., common peroneal nerve, sciatic, etc.) and the affects attributable to the neuropathy (e.g., pain, sensory loss, decrease in muscle strength, etc.). b. Is the nerve impairment consistent with neuritis or neuralgia? c. Does any nerve impairment equate to or result in complete paralysis? d. Identify whether the functional loss of the lower extremities attributable to the neuropathy/nerve impairment is best described as mild, moderate, or severe. e. Is any nerve impairment/symptomatology of the lower extremities related to the degenerative changes in the Veteran's lumbar spine? The medical basis for any conclusion reached should be thoroughly explained. Hepatitis C The examiner should elicit a detailed history from the Veteran concerning his hepatitis C symptoms. The examiner's claims file review should include those various tabbed treatment records and examination reports pertaining to hepatitis C. In particular, the examiner should thoroughly identify and describe all symptoms and functional impairment due to hepatitis C to include any identified sequelae (e.g., cirrhosis). The examiner should determine whether the Veteran has had substantial weight loss or minor weight loss, whether there are dietary restrictions or continuous medication requirements, whether there is gastrointestinal disturbance, whether there is evidence of hepatomegaly, and also determine the duration of any incapacitating episodes during the past 12-month period. The examiner should also identify whether the Veteran's liver damage is best described as mild, moderate, or marked. 4. After completion of the development above, the Veteran should then be scheduled for an appropriate VA examination to assess his gastrointestinal complaints, to include GERD, and determine whether any identified gastrointestinal disability, to include GERD, is related to service or to service-connected disability. The claims file and a copy of this remand must be reviewed by the examiner in conjunction with the examination. Any tests and studies deemed necessary should be conducted and the clinical findings should be reported in detail. The examiner should elicit a detailed history from the Veteran concerning his gastrointestinal complaints, to include GERD. The examiner's claims file review should include, in particular, the Veteran's service treatment records; a report of September 2003 VA stomach, duodenum, and peritoneal adhesions examination (See Vol. 3 of the claims file); and a report of December 2007 VA esophagus and hiatal hernia examination (See Vol. 5 of the claims file); and various tabbed treatment records and examination reports pertaining to GERD. For any gastrointestinal disorder, to include GERD, diagnosed on examination, the examiner should opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater), that any diagnosed gastrointestinal disorder, to include GERD, had its clinical onset during service or is otherwise related to service, or that any such diagnosed disability was caused or aggravated (permanently worsened beyond its normal progression) by service-connected disability. In particular, the examiner should comment on whether any gastrointestinal disorder, to include GERD, was caused or aggravated by service-connected hepatitis C or antiviral treatment thereof. The medical basis for the conclusion reached should be thoroughly explained. 5. After completion of the development requested in action paragraph # 4, the Veteran should then be scheduled for an appropriate VA examination and the examiner asked to ascertain whether the Veteran is unable to obtain or maintain substantially gainful employment due to service-connected disabilities. At this time, the Veteran is service connected for hepatitis C, for peripheral neuropathy of the lower extremities, for pseudofolliculitis barbae, for right inguinal hernia, and for limpoma of the back. If prior to this examination, service connection is established for other disabilities, the examiner should also consider these disabilities. If subsequent to this examination, service connection is established for other disabilities, the examiner should be provided an opportunity for an addendum opinion. In making the requested employability determination, the examiner must consider and discuss the Veteran's level of education, other training, work experience, and the disabling affects of his service-connected disabilities (individually or in concert) on his ability to obtain or maintain substantially gainful employment. The examiner's report must include a complete rationale for all opinions and conclusions expressed. 6. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the claims on appeal. If the benefits sought are denied, the Veteran and his representative must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires claims 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. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs