Citation Nr: 1645998 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 11-17 287 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence had been submitted sufficient to reopen a previously denied claim for service connection for a major depressive disorder (claimed as neuropsychiatric/nervous condition), to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a gastrointestinal condition. 3. Entitlement to a compensable rating for service-connected erectile dysfunction. 4. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to December 1990. This appeal is before the Board of Veterans' Appeals (Board) from March 2010, December 2013, July 2016 rating decisions of a VA RO. The issues of entitlement to service connection for a gastrointestinal condition, obstructive sleep apnea, and a major depressive disorder, and the issue of entitlement to a compensable rating for service-connected erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By an August 2010 rating decision, the Veteran's claim of service connection for depression was denied on the basis that his depression was not caused by his service-connected conditions, and there was no incurrence in service or diagnosis. 2. Evidence received since the August 2010 rating decision is not cumulative and redundant, and raises a reasonable possibility of substantiating the claim for service connection for a major depressive disorder. CONCLUSIONS OF LAW 1. The August 2010 rating decision denying the Veteran's claim of service connection for depression is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence sufficient to reopen the Veteran's claim of service connection for a major depressive disorder has been submitted. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's application to reopen his previously denied claim for service connection for a major depressive disorder, this application, and only this application, has been granted, as discussed below. As such, the Board finds that any error related to the VCAA solely with regard to this application is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2015); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1131 ; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a major depressive disorder. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The Veteran's claim for service connection for depression was previously denied in an August 2010 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2015). New evidence means 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) (2015). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The basis for the August 2010 denial was that the depression was not caused by the Veteran's service-connected conditions, and there was no incurrence in service or diagnosis. At the time of this denial, VA medical records, statements submitted by the Veteran, and service treatment records were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran, private medical records, and VA medical records. With regard to the newly submitted medical records, the Veteran underwent a private psychiatric evaluation in June 2011 at Ashford Medical Center, at which he was diagnosed with a major depressive disorder, moderate to severe, recurrent. As the newly submitted medical evidence reflects a current diagnosis, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim. As such, this claim is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. ORDER As new and material evidence has been submitted regarding the claim for service connection for a major depressive disorder (claimed as neuropsychiatric/nervous condition), the Veteran's claim is reopened. To this extent only, the appeal is granted. REMAND Additional development is needed prior to the adjudication of the claims on appeal. In a July 2016 rating decision, the RO denied entitlement to service connection for obstructive sleep apnea and continued a noncompensable evaluation for service-connected erectile dysfunction. The Veteran subsequently filed a timely notice of disagreement (NOD) in August 2016 with regard to these denials. The Veteran has not been afforded a statement of the case (SOC) addressing these issues. As such, these claims are remanded to allow the RO to provide the Veteran with an appropriate SOC on these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. With regard to the Veteran's claim for service connection for a gastrointestinal condition, the Veteran underwent a VA examination in May 2010, at which he was diagnosed with clinical mild gastroesophageal reflux disease (GERD) and clinical mild gastritis/duodenitis. The VA examiner determined that his GERD was not caused by or a result of medication used for his service-connected right wrist condition. However, the Veteran reported that he had a stomach ache and acidity with certain foods and also after taking his antihypertensive medications. In light of these assertions, and in consideration of the fact that the Veteran is service connected for arterial hypertension, the Board finds that the necessity for a new VA examination is shown for the proper assessment of the Veteran's gastrointestinal condition claim. With regard to the Veteran's claim for service connection for a major depressive disorder, the Veteran underwent a VA examination in May 2010, at which the examiner diagnosed substance-induced mood disorder, not otherwise specified. As noted above, the Veteran more recently underwent a private psychiatric evaluation in June 2011 at Ashford Medical Center, at which he was diagnosed with a major depressive disorder, moderate to severe, recurrent. In light of this new diagnosis, and the fact that the Veteran reported depression and excessive worry on an October 1990 Report of Medical History, the Board finds that this issue must be remanded in order to provide the Veteran a new VA examination addressing the etiology of this disorder. Furthermore, it is clear there are outstanding VA treatment records not associated with the claims file. The March 2016 statement of the case on the psychiatric claim listed VA outpatient records through March 2016 as evidence considered, and a July 2016 rating decision indicated VA outpatient records through June 2016 had been considered and would be saved into the Veteran's Virtual VA electronic file. However, no such records are shown in the electronic files. In fact, the last outpatient records in the file are dated in 2011. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the VA Caribbean Healthcare System/San Juan VAMC from February 2011 to the present. 2. Provide the Veteran with a SOC as to the issues of entitlement to service connection for obstructive sleep apnea and entitlement to a compensable evaluation for service-connected erectile dysfunction. He should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. If a timely substantive appeal is not filed, the claims should not be certified to the Board. 3. Only after obtaining the VA outpatient records described above, then schedule the Veteran for a pertinent VA examination for his claimed gastrointestinal disorder. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. The examiner should diagnose the Veteran with all gastrointestinal disorders. Then, the examiner should render an opinion as to whether it is at least as likely as not that any diagnosed gastrointestinal disorder was caused by his active duty service. The examiner should also render an opinion as to whether it is at least as likely as not that any diagnosed gastrointestinal disorder was caused or aggravated by any of his service-connected disabilities, to specifically include medication taken to treat his service-connected arterial hypertension. The examiner is advised that the term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 4. Only after obtaining the VA outpatient records described above, then schedule the Veteran for a pertinent VA examination for his claimed major depressive disorder. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. The examiner should diagnose the Veteran with all current psychiatric disabilities, to include major depressive disorder. Then, the examiner should render an opinion as to whether it is at least as likely as not that any diagnosed psychiatric disability, to include major depressive disorder, was caused by his active duty service. The examiner should also render an opinion as whether it is at least as likely as not that any diagnosed psychiatric disability, to include major depressive disorder, was caused or aggravated by any of his service-connected disabilities. The examiner is advised that the term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 5. Then, readjudicate the Veteran's gastrointestinal condition and major depressive disorder claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2015). 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs