Citation Nr: 1612003 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 08-29 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an effective date prior to June 26, 2013, for the grant of service connection for gastritis. 2. Entitlement to an initial rating in excess of 20 percent for gastritis. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 4. Entitlement to service connection, to include on a secondary basis, for psychiatric disability. 5. Entitlement to service connection, to include on a secondary basis, for hypertension. REPRESENTATION Appellant represented by: Kathy Liebermann, Attorney ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from to October 1964 to August 1966. This matter is on appeal from rating decisions dated in October 2007 and November 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran requested a Board hearing in June 2015, but withdrew this request in a subsequent September 2015 statement. The issue of entitlement to service connection for psychiatric disability was remanded by the Board in December 2011, and denied by the Board in July 2014. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court) which, in an April 2015 Order, vacated the Board's decision and remanded for further development. This new development having been completed, the issue is now ready for disposition. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. The issue of entitlement to an initial rating in excess of 20 percent for gastritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On June 26, 2013, the RO received the Veteran's claim seeking entitlement to service connection for gastritis, but there is a prior communication from September 17, 2012, reflecting the intent to file a claim. 2. Service connection for hypertension was denied in a December 2011 Board decision. 3. The evidence added to the record since the December 2011 Board decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for hypertension. 4. With the resolution of reasonable doubt in the Veteran's favor, the Veteran's hypertension was caused by service-connected diabetes mellitus. 5. The Veteran's psychiatric disability did not originate in service or until many years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date of September 17, 2012, but no earlier, for the grant of service connection for gastritis have been met. 38 U.S.C.A. §§ 5103, 5103A, 5110(a) (West 2014); 38 C.F.R. §§ 3.1(r), 3.400 (2015). 2. As the evidence received subsequent to the December 2011 Board decision is new and material, the requirements to reopen the claim for entitlement to service connection, to include on a secondary basis, for hypertension have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.102, 3.156 (2015). 3. The criteria for entitlement to service connection, to include on a secondary basis, for hypertension have been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). 4. The criteria for entitlement to service connection, to include on a secondary basis, for psychiatric disability have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his attorney has alleged prejudice with respect to notice, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. They also provided him with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. VA examinations with respect to the issues on appeal were also obtained in August 2007, December 2011 and October 2014. 38 C.F.R. § 3.159(c)(4). The Board has also received advisory opinions from the Veterans' Health Administration (VHA) in March 2014 and December 2015. See 38 U.S.C.A. § 7109 (West 2014), 38 C.F.R. § 20.901(a) (2015). The Veteran and his representative were provided copies of the opinions and provided a period of 60 days to provide additional argument or evidence. See 38 C.F.R. § 20.903 (2015). To that end, when VA undertakes to provide a VA examination or opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA examinations and opinions are collectively adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In an August statement, the Veteran indicated that he submitted an application for disability benefits to the Social Security Administration. However, he indicated that his application was comprised with VA treatment records, which are already of record. Therefore, attempting to obtain such records would not result in any benefit and only delay adjudication of the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Effective Date In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2014); 38 C.F.R. § 3.400(b) (2015). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2015). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2015); Norris v. West, 12 Vet. App. 413, 421 (1999). In this case, the Veteran submitted a claim seeking entitlement to service connection for gastritis on June 26, 2013. However, the Board notes that there was some confusion, as this claim was apparently lost by the RO, and the Veteran was sent a letter in February 2014 informing him of this. In any event, it appears that an acceptable facsimile of the original claim was ultimately obtained and is of record. Therefore, the Board finds that, for effective date purposes, this is the date of receipt for the Veteran's claim of entitlement to service connection for gastritis. The date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to June 26, 2013. In this regard, a review of the record indicates that the Veteran submitted a statement on September 17, 2012, where he stated "I am told that I have stomach ulcers sue to medication." Given the fact that he did ultimately submit a claim the following June, it is reasonable to consider the September 17, 2012 statement as an intent to file a claim. However the record does not contain any other information revealing an intent to file a claim prior to that point. Therefore, the Board concludes that the effective date of the Veteran's service-connected gastritis would be adjusted to September 17, 2012, but no earlier. The appeal is granted to this extent. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for hypertension, to include as due to his service-connected diabetes mellitus. This claim was previously denied by the Board in December 2011 on the basis that he had not been diagnosed with hypertension. He did not appeal this decision to the Court, and it became final. This represents the last final denial of the claim. After a review of the evidence submitted since the Board's December 2011 rating decision became final, the Board determines that reopening the claim is warranted. Specifically, the evidence of record indicates that the Veteran was ultimately diagnosed with hypertension in approximately February 2012, although there are indications that an informal diagnosis was made prior to that point. Not only is this evidence "new" in that this was not reviewed by the Board in December 2011, it is also material, as it relates to an unestablished fact necessary to support the claim. Therefore, as evidence that is both "new" and "material" has been submitted, the previously denied claim should be reopened. Service Connection The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, which has been diagnosed as depression, as well as hypertension. He has particularly asserted that both disorders are at least partially attributable to his service-connected diabetes mellitus. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). However, as the Veteran has not been diagnosed with one of the enumerated disorders listed under 38 C.F.R. § 3.309(a), application of 38 C.F.R. § 3.303(b) is not warranted. In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). 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, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In this case, the Board first determines that service connection is not warranted for psychiatric disability, based on the evidence of record. First, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to any psychiatric disorder while in service. Significantly, the Veteran's separation physical examination in August 1966 is silent for any complaints of or observed symptoms related a psychiatric disorder. In fact, the post-service evidence does not reflect symptoms related to psychiatric disability for many years after the Veteran left active duty service. Specifically, according to a VA treatment note in October 2003, the Veteran lost his job in after a work-related accident in 2001 and he developed depression shortly thereafter. By 2003 he had been taking medication for this disorder. However, the Board emphasizes that the first indication of depression in 2001 is still approximately 35 years after he left active duty. Moreover, the Veteran himself has not asserted that he has experienced this disorder since service. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between his depression and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty or to a service-connected disability, despite his contentions to the contrary. First, there are no treatment records establishing that the Veteran's psychiatric disorder is related to active duty, nor has any physician asserted that such a relationship exists. As for his assertions that his depression has been worsened by his diabetes mellitus and other service-connected disabilities, the Board places significant value on the opinions of VA examiners who provided opinions in August 2007 and December 2011. Specifically, at the August 2007 VA examination, the examiner diagnosed depression as well as alcohol abuse. However, the examiner determined that the Veteran's depression was less likely than not related to service or to a service-connected disability, as there were no psychiatric symptoms in service or for many years thereafter. Moreover, the examiner pointed out that while the Veteran began to receive psychiatric treatment in 2001, he was not diagnosed with diabetes mellitus until 2002. Therefore, in the examiner's opinion, diabetes could not have been a causative factor in his preexisting psychiatric disorder. This opinion was largely repeated by the second VA examiner in December 2011. As to whether the Veteran's psychiatric disorder was subsequently worsened by his later-diagnosed diabetes mellitus, the Board also obtained opinions from VA psychiatry specialists who evaluated the Veteran's records, and provided opinions in March 2014 and December 2015. In the March 2014 opinion, the VA psychiatrist concluded that the Veteran's depression was not permanently worsened by his service-connected diabetes mellitus and erectile dysfunction. In providing this opinion, the psychiatrist noted that the Veteran's initial psychiatric diagnosis was following a work-related injury and, when he received additional mental health treatment in 2003, this was related to family issues rather than to a service-connected disability. Moreover, according to a Veteran's statements, his family issues were exacerbated by his lack of employment and alcohol abuse. Recognition is given to the fact that, during the course of the appeal, the Veteran has made statements regarding his service-connected disorders and their impact on his mental health. For example, in August 2011, he stated that he "felt sad due to his medical conditions and pain." In July 2013 and April 2014, he was observed to have depression "due to medical conditions to the point of becoming obsessed." In another statement that month, the Veteran reported that he had "been feeling depressed because of the pain." In view of these reports, the Veteran's records were sent to another VA psychiatry specialist, who was able to review the evidence of record, including his most recent comments. After a review of the claims file, the psychiatrist submitted a report in December 2015 that effectively agreed with the March 2014 opinion, in that the Veteran's acquired psychiatric disorder was not aggravated by his service-connected disabilities. In providing this opinion, the psychiatrist noted that, despite the Veteran's statements discussed above, there was "no objective clinical evidence so support the notion that the patient's symptoms of depression have worsened." Rather, while the Veteran experienced "sadness" and "low self-esteem," these are symptoms of depression, not necessarily a cause. Moreover, in the psychiatrist's opinion, had the Veteran's service-connected disabilities been cured, his psychiatric symptoms would not likely have improved. The Board finds that these opinions are collectively adequate for evaluation purposes. Specifically, the physicians and examiners reviewed the claims file, interviewed the Veteran and, in the case of the VA examinations, conducted a full psychiatric evaluation. There is no indication that any of the VA physicians were not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In support of his claim, the Veteran has also submitted an opinion from a private mental health counselor, who opined that the Veteran's service-connected disabilities "contribute significantly" to his depression. The counselor noted that "with the exception of a brief reaction to the emotional distress of losing his job in 2001, [the Veteran] never experienced symptoms of a depressed mood until he was diagnosed with diabetes in 2002." This counselor also noted that the Veteran's symptoms were exacerbated by his inability to take medicine due to his gastritis. When viewing the evidence as a whole, the Board places greater weight on the opinions by the VA psychiatrists than the mental health counselor. Specifically, the Board accepts the VA psychiatrists' rationale that the presence of new symptoms, such as concerns over health, does not necessarily equate to an actual worsening of the condition. Rather, there must be an actual worsening of symptoms already present, which has not been shown here. Notably, while the mental health counselor characterizes the Veteran's initial diagnosis in 2001 as a "brief reaction," the VA psychiatrist noted in December 2015 the Veteran was already on anti-depressants at the time of his initial diabetes mellitus diagnosis, which belies the argument that the Veteran's symptoms in in 2001 were transient in nature. As for any assertion that his symptoms were exacerbated by the discontinuance of medication, this argument is baseless, as the level of severity is considered without consideration to the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his acquired psychiatric disorder to his service-connected disabilities. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of an acquired psychiatric disorder. See Jandreau, 492 F.3d at 1377, n.4. Because acquired psychiatric disorders are not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's acquired psychiatric disorders are found to lack competency. As for the Veteran's hypertension, the Board concludes that service connection is warranted. Specifically, the record reflects that he has been diagnosed with hypertension and is currently taking medication to control its effects. Moreover, the Board places sufficient probative value in an opinion provided by a private physician (Dr. A.A.) in May 2015, who opined that it was more likely than not that the Veteran's hypertension was related to his service-connected diabetes. In providing this opinion, the physician noted that diabetes mellitus and hypertension are interrelated diseases, and is approximately twice as frequent in those with diabetes. Given the private physician's opinion, the evidence supports service connection. At the very least, the evidence is in equipoise. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. However, service connection is warranted for hypertension, and the appeal is granted to this extent. ORDER An effective date of September 17, 2012, but no earlier, for the grant of service connection for gastritis is granted. New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for hypertension is granted and the claim is reopened. Service connection for hypertension is granted. Service connection, to include on a secondary basis, for psychiatric disability is denied. REMAND The Veteran has disagreed with the assignment of a 20 percent rating for his gastritis under 38 C.F.R. § 4.114, DC 7305 (addressing duodenal ulcers). However, further development is required before this issue may be adjudicated. Specifically, while this diagnostic code 7305 is potentially applicable, DCs 7306 and 7307 should also be considered, as they also address gastritis symptoms. The Veteran has specifically argued that he is entitled to a 30 percent rating under DC 7307. Under this diagnostic code, a 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. The next-higher 60 percent rating is warranted when the evidence indicates chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. See 38 C.F.R. § 4.114, DC 7307 (2015). In the Board's view, DC 7307 cannot be properly applied without results of an endoscopy. The Veteran's VA examination in October 2014 indicates that endoscopies were performed in July 2012 and again in September 2014. However, neither is of record. Therefore, these endoscopy reports must be obtained before the claim may be adjudicated. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in San Juan, Puerto Rico since May 2014, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. The RO should specifically make efforts to acquire the reports from endoscopies performed in July 2012 and September 2014. 2. The RO should undertake all other development deemed necessary, to include new VA examinations as may be required. 3. After the above action is completed, if the claim is not fully granted, a supplemental statement of the case should be issued on the issues of entitlement to an initial rating in excess of 20 percent for gastritis, and the claims file should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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 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 2014). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs