Citation Nr: 1752956 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 15-26 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hypertension. 2. Whether new and material evidence has been received to reopen a claim for service connection for erectile dysfunction. 3. Whether new and material evidence has been received to reopen a claim for service connection for a back condition. 4. Entitlement to service connection for hypertension, to include as due to service-connected posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for erectile dysfunction, to include as due to service-connected disabilities. 6. Entitlement to service connection for a back condition. 7. Entitlement to service connection for ischemic heart disease. 8. Entitlement to service connection for transient ischemic attacks, to include as due to hypertension. 9. Entitlement to service connection for right shoulder condition, to include as due to transient ischemic attacks. 10. Entitlement to service connection for left shoulder condition, to include as due to transient ischemic attacks. 11. Entitlement to service connection for prostate condition. 12. Entitlement to special monthly compensation (SMC) on the basis of being housebound. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran had active military service from April 1967 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of service connection for erectile dysfunction, transient ischemic attacks, a right shoulder condition, a left shoulder condition, a prostate condition, and SMC on the basis of being housebound are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed May 2003 rating decision denied service connection for hypertension based on a finding that it was not related to service. 2. Evidence received since the May 2003 rating decision includes a medical evaluation indicating hypertension is related to service-connected posttraumatic stress disorder (PTSD); this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. It is reasonably shown that the Veteran has hypertension that is related to service. 4. An unappealed April 2007 rating decision denied service connection for sexual dysfunction based on a finding that it was not related to service. 5. Evidence received since the April 2007 rating decision includes a new VA medical opinion concerning the etiology of the erectile dysfunction; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 6. An unappealed March 2004 rating decision denied service connection for a back condition based on a finding that there was no nexus to service. 7. Evidence received since the March 2004 rating decision includes medical evidence attributing a back condition to service; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 8. It is reasonably shown that the Veteran has a back condition that is related to service. 9. The Veteran has not been diagnosed as having ischemic heart disease. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for hypertension may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 2. Service connection for hypertension is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 3. New and material evidence has been received, and the claim of service connection for erectile dysfunction may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 4. New and material evidence has been received, and the claim of service connection for a back condition may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 5. Service connection for a back condition is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 6. Service connection for ischemic heart disease is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable action taken with respect to the petition to reopen the claims of service connection for hypertension, erectile dysfunction, and a back condition, as well as underlying claims for hypertension and a back condition, no further discussion of the VCAA is required with respect to these claims. VA satisfied the duties to notify and assist in this appeal for service connection for ischemic heart disease, and neither the Veteran nor his representative has asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Veteran was provided a February 2014 VA examination regarding this claim. As discussed in greater detail below, the Board finds the examination to be adequate upon which to adjudicate the merits of this appeal. Service Connection Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disability will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disability. 38 C.F.R. § 3.310. In cases of aggravation of a Veteran's non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). I. Hypertension The Veteran's original claim of entitlement to service connection for hypertension was denied in February 2003 on the basis that there was no nexus to service. A May 2003 decision by a decision review officer continued the denial. The decisions became final because the Veteran did not perfect an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.1103 (2017). However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108 (2012). New evidence means 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) (2017). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Since the June 2013 claim to reopen the claim for service connection for hypertension, the Veteran has reported experiencing high blood pressure during service, following stressful events while serving in Vietnam. See October 2014 Notice of Disagreement As this evidence was submitted after the final May 2003 rating decision and relates to the lacking element of a relationship to service, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for hypertension is reopened. Moreover, after this review of the evidence, resolving all reasonable doubt in the Veteran's favor, the Board grants service connection for hypertension. In summary, the Veteran currently has diagnosed hypertension. As to the remaining element, the evidence is in equipoise as to the etiology of the hypertension. While an April 2003 VA hypertension examination opined it was not related to service, an April 2003 VA PTSD examination noted the Veteran's blood pressure problems appeared to be related to PTSD, as the Veteran reported his blood pressured increased when his PTSD symptoms were more active. The Veteran also later reported high blood pressure following stressful events in service. After careful review of the probative opinion evidence, the Board finds that the positive and negative opinion evidence is in relative equipoise. As such, the Board grants service connection for hypertension. II. Erectile Dysfunction The Veteran's original claim of entitlement to service connection for erectile dysfunction, then claimed as sexual dysfunction, was denied in April 2007 on the basis that there was no nexus to service. The decision became final because the Veteran did not perfect an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.1103 (2017). Since the June 2013 claim to reopen the claim for service connection for erectile dysfunction, the RO obtained another VA medical opinion in February 2014 concerning the hypertension. As this evidence was obtained after the final April 2007 rating decision and relates to the lacking element of a relationship to service, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for erectile dysfunction is reopened. Back Condition The Veteran's original claim of entitlement to service connection for a back condition was denied in February 2003 on the basis that there was no nexus to service. The Veteran's claim was again denied in March 2004 due to no nexus. The decisions became final because the Veteran did not perfect an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.1103 (2017). Since the June 2013 claim to reopen the claim for service connection for back condition, the Veteran has submitted a letter dated November 2014 from a private chiropractic physician, opining that the Veteran's back condition was most likely due to service. The physician noted that back conditions may progressively undergo degenerative changes, and pointed to the Veteran's reports of jumping out of helicopters, walking on uneven terrain, and sleeping on ammunition boxes. As this evidence was submitted after the final March 2004 rating decision and relates to the lacking element of a relationship to service, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for a back condition is reopened. Moreover, after this review of the evidence, resolving all reasonable doubt in the Veteran's favor, the Board grants service connection for back condition. In summary, the Veteran currently has a diagnosed back condition. As to the remaining element, the most probative evidence of record, the chiropractic physician's letter, attributes the back condition to service. As such, the Board grants the benefit sought. III. Ischemic Heart Disease The Veteran contends he has ischemic heart disease due to service. Where a veteran was exposed to an herbicide agent during active military, naval, or air service, and ischemic heart disease becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307 (a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Here, the Veteran's exposure to herbicides has already been presumed due to his Vietnam service. His service treatment records do not show complaints of ischemic heart disease. On February 2014 VA examination, the examiner noted the Veteran reported hypertension and hypercholesterolemia, but no heart disease. After examination and review of the medical records, the examiner declined to make a diagnosis of ischemic heart disease. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Veteran has not submitted any medical evidence that shows he has diagnosed ischemic heart disease. The February 2014 VA examiner specifically stated the Veteran did not have ischemic heart disease. Although the Veteran is competent to discuss symptoms, he is not competent to provide statements regarding the diagnosis of any such disability. Here, because there is no diagnosis of ischemic heart disease, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The competent evidence is against a finding of ischemic heart disease at any time relevant to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. Entitlement to service connection for hypertension is granted, subject to the laws and regulations governing the payment of monetary benefits. New and material evidence having been received, the claim of entitlement to service connection for erectile dysfunction is reopened. New and material evidence having been received, the claim of entitlement to service connection for a back condition is reopened. Entitlement to service connection for a back condition is granted, subject to the laws and regulations governing the payment of monetary benefits.. Entitlement to service connection for ischemic heart disease is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the remaining issues on appeal. As an initial matter, it does not appear the Veteran was provided VCAA notice regarding secondary service connection; therefore, it should be provided on remand. The Veteran contends his erectile dysfunction is due to his service-connected PTSD or hypertension, to include medication taken for these conditions. A VA medical opinion was only obtained regarding any relationship with the Veteran's PTSD. As the instant decision granted service connection for hypertension, a new VA opinion should be obtained regarding this theory of entitlement. The RO denied the Veteran's claim for a prostate disability based on lack of diagnosis of prostate cancer. However, a review of the record reveals that the Veteran has benign prostate hypertrophy and has been taking medication for a prostate condition. Therefore, a VA medical examination should be obtained to determine whether the Veteran has a diagnosed prostate disability related to service. As well, the Veteran contends his transient ischemic attacks are due to hypertension, and noted articles linking PTSD to cardiovascular disorder. See October 2014 Notice of Disagreement. As a VA examination has not been provided for this disability, one should be obtained on remand. The Board finds that the Veteran's claims for service connection for right and left should conditions are inextricably intertwined with the claim for service connection for transient ischemic attacks, as they are claimed on a secondary basis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The Board also finds the claim for SMC on the basis of being housebound is inextricably intertwined with the other matters being remanded, as SMC was denied because the Veteran did not meet the schedular requirements at the time. Consideration of the claims for service connection for right and left shoulder conditions and SMC on the basis of being housebound must be deferred pending the resolution (development and readjudication) of the appropriate claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should secure for association with the record updated (to the present) records of any/all VA treatment the Veteran has received for the issues on appeal. 2. Provide VCAA notice regarding secondary service connection. 3. After completing directives (1)-(2), the AOJ should return the claims file to the February 2014 VA examiner for an addendum opinion regarding the nature, extent and etiology of the Veteran's current erectile dysfunction. Based on the record, the examiner should provide responses to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has erectile dysfunction related to service? (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has erectile dysfunction that is proximately due to his service-connected hypertension, to include any required medication? (c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has erectile dysfunction that has been aggravated by his service-connected hypertension, to include any required medication? Aggravation is an increase in severity beyond the natural progress of the disorder. Detailed reasons for all opinions should be provided. 4. After completing directives (1)-(2), the AOJ should request an opinion with examination from an appropriate VA clinician to determine the nature and likely etiology of the Veteran's transient ischemic attacks. The Veteran's record, to include this remand, must be made available to the examiner for review. Upon review of pertinent medical history, the examiner should provide a response to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has transient ischemic attacks related to service, to include due to exposure to herbicides in Vietnam? (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has transient ischemic attacks that are proximately due to his service-connected PTSD and/or hypertension? (c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has transient ischemic attacks that have been aggravated by his service-connected PTSD and/or hypertension? Aggravation is an increase in severity beyond the natural progress of the disorder. Detailed reasons for all opinions should be provided. 5. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of any prostate disability. Based on the record, the examiner should provide responses to the following: (a) Does the Veteran have a current prostate disability? (b) If so, is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's diagnosed prostate disability is attributable to the Veteran's active serviceļ to include due to exposure to herbicides in Vietnam? Detailed reasons for all opinions should be provided. 6. The AOJ should then review the obtained VA examination reports to ensure that the opinions contained therein are responsive to the questions posed. 7. The AOJ should then review the record and readjudicate the claims, performing all additional development deemed necessary. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant 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 that all claims that are 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs