Citation Nr: 1617334 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 09-24 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for hypertension. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE). 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity (RLE). 5. Entitlement to service connection for peripheral neuropathy of the left upper extremity (LUE). 6. Entitlement to service connection for peripheral neuropathy of the right upper extremity (RUE). 7. Entitlement to an initial disability rating in excess of 10 percent for diabetes mellitus, type II (DM). 8. Entitlement to an initial disability rating in excess of 30 percent as from June 23, 2003 to July 11, 2005, and in excess of 60 percent as of June 12, 2005, for coronary artery disease (CAD), status post myocardial infarction and coronary artery bypass graft. 9. Entitlement to an initial compensable disability rating for a surgical scar of the chest. 10. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 11. Entitlement to a disability rating in excess of 30 percent for chronic pancreatitis. 12. Entitlement to a disability rating in excess of 20 percent for cervical disc degeneration with segmental dysfunction and neuralgia. 13. Entitlement to an effective date prior to September 14, 2007, for the grant of service connection for DM. 14. Entitlement to an effective date prior to June 23, 2003, for the grant of service connection for CAD. 15. Entitlement to an effective date prior to June 23, 2003, for the grant of service connection for a surgical scar of the chest. 16. Entitlement to an effective date prior to July 30, 2010, for the grant of service connection for PTSD. 17. Entitlement to an effective date prior to September 14, 2007, for the grant of entitlement to special monthly compensation (SMC) based on statutory housebound criteria being met. 18. Entitlement to an effective date prior to July 12, 2005, for the grant of entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 19. Entitlement to an effective date prior to July 12, 2005, for the establishment of basic eligibility for Dependents' Education Assistance (DEA) under 38 U.S.C.A. Ch. 35. REPRESENTATION Veteran represented by: John F. Cameron, Esq. ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to September 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008, November 2007, February 2011, and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in San Juan, Puerto Rico, St. Petersburg, Florida, Muskogee, Oklahoma, and Montgomery, Alabama, and a February 2016 administrative decision from the Montgomery RO. The case is currently under the jurisdiction of the Montgomery RO. In April 2016, the Veteran submitted an NOD with the February 2016 administrative decision that his January 2016 NOD was not timely. No statement of the case (SOC) has been issued for this issue. However, as action is being taken by the AOJ on this matter, to include being sent a de novo review letter in April 2016, a remand for an SOC is not deemed necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). The service connection (including the reopened COPD and hypertension claims), increased rating, earlier effective date, and timeliness of the NOD claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The RO denied service connection for COPD in August 2004 on the basis that the evidence did not show current COPD, or a nexus between the Veteran's military service and any respiratory disability; the Veteran did not appeal this decision. 2. Evidence submitted subsequent to the August 2004 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for COPD. 3. The RO denied service connection for hypertension in August 2004 on the basis that the evidence did not show inservice hypertension, service-connected DM, or a medical nexus between the Veteran's military service and his current hypertension; the Veteran did not appeal this decision. 4. Evidence submitted subsequent to the August 2004 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The August 2004 rating decision denying service connection for COPD is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.1103 (2015). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for COPD has been submitted. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The August 2004 rating decision denying service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.1103 (2015). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for hypertension has been submitted. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the applications to reopen the previously denied claims for service connection for COPD and hypertension are being granted, any error related to the duties to notify and assist is moot. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection for COPD and hypertension was initially denied in an August 2004 rating decision from the VA RO in Columbia, South Carolina. The RO determined that there was no evidence of current COPD and no evidence of an inservice injury (for direct service connection), service-connected DM (for secondary service connection), or a link between a current disability and military service for either claim. The Veteran did not submit a notice of disagreement or new evidence within a year of this denial. The August 2004 rating decision is the last final prior denial of the COPD and hypertension claims. Subsequent to the August 2004 rating decision, the Veteran submitted medical evidence showing a current COPD diagnosis. Additionally, service connection has been granted for DM. This diagnosis and grant of service connection satisfy the low threshold requirement for new and material evidence and the COPD and hypertension claims are reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for COPD has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for hypertension has been received, the application to reopen is granted. REMAND Subsequent to the most recent supplemental statements of the case (SSOCs) in April 2014, new medical evidence has been associated with the claims file. VA sent the Veteran and his attorney a letter in February 2016 inquiring whether they wish to waive AOJ review of this new evidence. They were informed that if they did not respond within 45 days, VA would assume that they did not waive AOJ review. The Veteran and his attorney did not respond to this letter. In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence. See Disabled American Veterans, et al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003); 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1304(c) (2015). The Board also finds that new VA examinations are warranted for the service connection and increased rating claims. Specifically, the Veteran has claimed that his COPD, hypertension, and peripheral neuropathies are related to his service-connected DM and/or CAD. Although the April 2009 VA examiner provided an opinion on whether these disabilities were caused by a service-connected disability, he did not address whether they were aggravated by a service-connected disability. An opinion must be obtained to address the question of aggravation. Additionally, as it has been over four years since any of the increased rating disabilities were examined, and to help avoid future Remand, the Board finds that new VA examinations for these disabilities are also warranted. Accordingly, the case is REMANDED for the following actions: 1. Review the all evidence in the Veteran's electronic claims file that has not been addressed in the May 2009, December 2013, and April 2014 SOCs and the April 2014 SSOCs and complete any additional development deemed necessary. 2. Copies of all outstanding VA treatment records should be obtained and added to the claims folder. All attempts to obtain these records must be documented in the claims file. 3. The Veteran should be scheduled for VA examinations to address his service connection and increased rating claims. The claims folder must be made available to the examiners for review in connection with the opinions. The opinions must reflect that such a review was conducted. With regard to the COPD, hypertension, and peripheral neuropathy of the bilateral upper and lower extremities claims, the examiner(s) should state whether it whether it at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed disabilities were caused or aggravated (made worse) by any of his service-connected disabilities, including coronary artery disease and/or diabetes mellitus. With regard to the DM, CAD, chest scar, PTSD, pancreatitis, and cervical spine claims, the examiners should describe the current nature and severity of these disabilities. All indicated testing should be performed. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above actions, the Veteran's service connection, increased rating, and earlier effective date claims should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, all issue(s) on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs