Citation Nr: 1756796 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-04 118 ) 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 May 7, 2010 for service connection for irritable bowel syndrome. 2. Whether new and material evidence has been received to reopen service connection for chest pains. 3. Entitlement to service connection for a disorder manifested by chest and lung pain, including as due to a qualifying chronic disability to include undiagnosed illness. 4. Entitlement to service connection for a disorder manifested by right foot pain, including as due to a qualifying chronic disability to include undiagnosed illness. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1983 to February 1984, and from January 1989 to July 1992. This appeal comes to the Board of Veterans' Appeals (Board) from April 2010 and April 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and San Juan, the Commonwealth of Puerto Rico, respectively. The current agency of original jurisdiction (AOJ) is the VA RO in San Juan, the Commonwealth of Puerto Rico. A claim for service connection for a right foot disorder and to reopen service connection for chest pains (also claimed as pain on the lungs) was received in September 2009. A claim to reopen service connection for irritable bowel syndrome was received in May 2010. The April 2010 rating decision, in pertinent part, denied service connection for right foot pain and declined to reopen service connection for chest pain. The Veteran filed a timely notice of disagreement that was received in May 2010. The April 2011 rating decision, in pertinent part, granted service connection for irritable bowel syndrome and assigned a 30 percent initial disability rating effective May 7, 2010. The Veteran filed a notice of disagreement with the effective date assigned for the grant of service connection. See September 2011 written statement. An original claim for service connection for "chest pain" was received in December 1995, which was denied in an April 1997 rating decision. The Veteran did not initiate an appeal of the decision or submit any new and material evidence with respect to this issue within the applicable one-year period. See 38 C.F.R. § 3.156(b) (2017); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017); Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Regardless of any RO determination as to the matter of new and material evidence, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Barnett, supra. VA examination reports and VA treatment records dated after the most recent February 2012 statement of the case (related to the earlier effective date issue on appeal) June 2016 supplemental statement of the case (related to the service connection issues on appeal) have been associated with the claims file. The additional evidence pertains to issues not currently in appellate status before the Board and the earlier effective date issue does not involve any question as to the current nature and severity of the Veteran's service-connected disabilities. As such, this evidence is not relevant to the effective date issue decided below; therefore, the Veteran is not prejudiced by the Board promulgating a decision without AOJ consideration of this evidence in the first instance. The issues of service connection for disorders manifested by chest, lung, and right foot pain are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. An unappealed March 2007 rating decision declined to reopen service connection for irritable colon, esophagitis, hiatal hernia reflux, heartburn, pain, cramps, and diarrhea (claimed as a "stomach condition). 2. The Veteran filed a claim to reopen service connection for irritable bowel syndrome that was received by VA on May 7, 2010. 3. An April 2011 rating decision granted service connection for irritable bowel syndrome effective May 7, 2010. 4. No claim to reopen service connection for irritable bowel syndrome was received after the March 2007 rating decision and prior to May 7, 2010. 5. An unappealed April 1997 rating decision denied service connection for chest pains on the basis that it was the chest pains were related to or were symptoms of the non-service-connected gastroesophageal reflux disease (GERD). 6. The evidence received since the April 1997 rating decision relates to an unestablished fact of chest pains that may be symptoms of an undiagnosed illness related to the Veteran's service in the Southwest Asian Theater of operations during the Persian Gulf War. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 7, 2010 for the award of service connection for irritable bowel syndrome have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.159, 3.400 (2014 and 2017). 2. The April 1997 rating decision to deny service connection for chest pains became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. New and material evidence has been received to reopen service connection for a disorder manifested by chest pain. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). The Board reopens service connection for chest pains and is remanding the issues of service connection for disorders manifested by chest, lung, and right foot pain for additional development; therefore, no discussion of VA's duty to notify and to assist is necessary with respect to these issues With respect to the appeal for an earlier effective date for service connection for irritable bowel syndrome, decided herein, resolution of this issue turns on the law as applied to the undisputed facts regarding the date of receipt of claim and date entitlement arose. As this issue turn on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the appealed effective date issues. As such, no further notice or development under the VCAA is warranted with respect to this issue. Mason v. Principi, 16 Vet. App. 129, 132 (2002). Earlier Effective Date for Service Connection for Irritable Bowel Syndrome An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims received prior to March 24, 2015, as pertinent to this case, a "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2014); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) (2014) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2014 and 2017). The Veteran asserts that the RO should have assigned an earlier effective date than May 7, 2010 for the award of service connection for irritable bowel syndrome. Specifically, the Veteran contends that service connection should be granted back to September 15, 2009. The Veteran contends that is the date the service connection claim was received by VA. See September 2011 notice of disagreement. The Veteran submitted an original claim for service connection for a stomach disorder that was received by VA in December 1995. This claim was denied by the RO in a June 1996 rating decision. The Veteran did not initiate an appeal of the decision or submit any new and material evidence with respect to this claim within the applicable one-year period; therefore, the June 1996 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.303, 20.1103 (2017). The Veteran subsequently filed a claim to reopen service connection for a stomach disorder that was received by VA in May 2006. A March 2007 rating decision denied reopening service connection and the Veteran did not initiate an appeal of the decision or submit any new and material evidence with respect to this claim within the applicable one-year period; therefore, the May 2007 rating decision became final. Id. The Veteran submitted a claim to reopen service connection for irritable bowel syndrome that was received by VA on May 7, 2010. The claim was granted in an April 2011 rating decision, which granted service connection for irritable bowel syndrome effective May 7, 2010. The Board finds that there was no correspondence received by VA after the May 2007 rating decision and prior to May 7, 2010 that can be construed as a claim to reopen service connection for irritable bowel syndrome. The earliest evidence of any kind associated with the act or intention of filing a claim to reopen service connection for irritable bowel syndrome is the May 7, 2010 written statement. With respect to the contention that an effective date of September 15, 2009 should have been assigned, review of the September 2009 correspondence does not reflect any statement that could be construed as a claim to reopen service connection for irritable bowel syndrome. The Veteran expressed disagreement with an October 2008 rating decision denying service connection for posttraumatic stressor disorder (PTSD) as well as reported bilateral foot pain, shortness of breath and pain on the lungs, but did not report any gastrointestinal symptoms or anything that could potentially be related to irritable bowel syndrome. As such, there is no evidence in the record to establish a date of claim earlier than the date VA received the claim to reopen, i.e., May 7, 2010. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. In this case, the evidence shows that the Veteran separated from active service in July 1992, did not file a claim for service connection for irritable bowel syndrome within one year of separation, first filed the claim for service connection for irritable bowel syndrome in December 1995 (which was denied and the Veteran did not initiate an appeal), filed a claim to reopen service connection on May 7, 2010, and an effective date of May 7, 2010 for the grant of service connection for irritable bowel syndrome was assigned. On these facts, because the earliest effective date legally possible has been assigned, and no effective date for the award of service connection earlier than May 7, 2010 is assignable, the appeal for an earlier effective date is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). For these reasons, the Board finds that an effective date prior to May 7, 2010 for the award of service connection for irritable bowel syndrome is not warranted. Reopening Service Connection for Chest Pains The Veteran seeks to reopen service connection for chest pains. The original claim for service connection, initially filed in December 1995, was originally denied in an April 1997 rating decision. The Veteran did not initiate an appeal of the decision or submit any new and material evidence within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings, 509 F.3d at 1368. As such, the decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Barnett, 83 F.3d at 1383; Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). The April 1997 rating decision denied service connection for chest pains on the basis that it was the chest pains were related to/symptoms of the non-service-connected GERD. The pertinent evidence of record at the time of the April 1997 rating decision includes service treatment records, private treatment record, VA examination reports, and lay statements. The Board has reviewed the evidence of record since the April 1997 rating decisions and finds that it qualifies as new and material evidence to warrant reopening service connection for a disorder manifested by chest pains. VA treatment records note that the Veteran has reported episodes of chest pain that do not appear to have been attributed to a known clinical diagnosis to include the non-service-connected GERD. See e.g., November and December 2015 VA treatment records. A February 2016 VA treatment record notes a negative cardiac workup. The DD Form 214 notes service in the Southwest Asian Theater of operations during the Persian Gulf War. The Board finds that this evidence, received after the April 1997 rating decision, is new. It was not previously of record, and is neither cumulative nor redundant of evidence previously considered by the RO. Such evidence is also material in that it relates to evidence that the reported chest and lung pain may be symptoms of an undiagnosed illness. 38 C.F.R. § 3.317 (2017). When making determinations as to whether new and material evidence has been received, the credibility of the evidence is generally presumed. See Justus, 3 Vet. App. at 513; Duran, 7 Vet. App. 216. This new evidence raises a reasonable possibility of substantiating the claim, so the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. In arriving at the above conclusions, the Board finds that the provisions of 38 C.F.R. § 3.156(b) and (c) are not applicable. There was no relevant evidence received during the one-year appeal period for the April 1997 rating decision nor have additional relevant service records been received; therefore, 38 C.F.R. § 3.156(b) and (c) do not apply. ORDER An effective date prior to May 7, 2010 for service connection for irritable bowel syndrome is denied. As new and material evidence has been received, the appeal to reopen service connection for a disorder manifested by chest pains is granted. REMAND Social Security Administration (SSA) Records VA treatment records note that the Veteran applied for SSA disability benefits. See December 2016 VA treatment record. The medical records supporting the claim and potential award of SSA disability benefits have not been associated with the claims file. There is a possibility that the SSA records are relevant to the issues on appeal. Accordingly, a remand is necessary to obtain the records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that VA has a duty to obtain SSA records where a reasonable possibility exists that the records are relevant to a veteran's claim); 38 C.F.R. § 3.159(c)(2). Service Connection for Disorders Manifested by Chest, Lung, and Right Foot Pain The Veteran contends that the reported symptoms of chest pain were incurred during service in the Persian Gulf War. The Veteran further contends that he has diagnosed right foot plantar fasciitis that is related to active service. See May 2010 notice of disagreement. In a September 2009 written statement, the Veteran reported shortness of breath and some "pain on [his] lungs" and contended these symptoms were related to dust exposure while moving M113 armored personnel carriers. It is unclear from the evidence of record whether the Veteran has any current diagnosed disabilities manifested by chest, lung, or right foot pain. VA treatment records associated with the claims file note chest pain, but do not appear to attribute said symptoms to a clinical diagnosis. See e.g., November 2015 and February 2016 VA treatment records. VA treatment records also note reports from the Veteran of chronic right foot pain. See e.g., March 2009 VA treatment record. A December 2006 VA examination report notes that the Veteran reported ongoing right foot pain since service. The VA examination report notes that the Veteran had right foot metatarsalgia (pain and inflammation in the ball of the foot). A June 2010 VA treatment record notes that the Veteran reported right foot pain that may be due to gout. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). However, joint/muscle pain and cardiovascular signs and symptoms may be manifestations of undiagnosed illness. See 38 C.F.R. § 3.317(b). Based on the above, the Board finds that a VA examination is necessary as there remains some question as to the etiology of the claimed chest, lung, and right foot pain, to include whether there are diagnosed disabilities regarding the same. 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the issues of service connection for disorders manifested by chest, lung, and right foot pain are REMANDED for the following action: 1. Obtain from the SSA a copy of any decision(s) with regard to any claim for disability benefits, as well as copies of all medical records underlying that determination. All records/responses received should be associated with the claims file. 2. Schedule a VA examination(s) to assist in determining the etiology of any current chest, lung, and right foot disorders. The VA examiner should review the evidence associated with the record. Based upon a review of all the record (including service treatment records, post-service treatment records, lay statements, history of the Veteran, and clinical findings), the VA examiner should offer the following opinions with supporting rationale: Does the Veteran have any current diagnosed disability associated with the chest, lungs, or right foot? If so, is it at least as likely as not (50 percent or greater probability) that each current disability was incurred in or caused by active service? 3. Then readjudicate the issues on appeal in light of all pertinent evidence. If any benefit sought on appeal remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs