Citation Nr: 1801344 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 07-13 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for coronary artery disease status post stent placement. 2. Entitlement to service connection for coronary artery disease status post stent placement, to include as secondary to service-connected sarcoidosis. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected depression and chronic prostatitis status post transurethral resection of the prostate (TURP). 4. Entitlement to an initial disability rating in excess of 30 percent for depression prior to June 5, 2012 and 50 percent thereafter. 5. Entitlement to increased ratings for chronic prostatitis status post TURP, evaluated as 10 percent disabling prior to July 25, 2005, as noncompensably disabling from July 25, 2005, as 10 percent disabling from February 15, 2007, and as 40 percent disabling from March 16, 2010. 6. Entitlement to an effective date earlier than February 25, 2009 for the award of a 30 percent disability rating for depression. 7. Entitlement to an effective date earlier than February 25, 2009 for the grant of a total rating based on unemployability due to service connected disability (TDIU). 8. Entitlement to an effective date earlier than February 25, 2009 for the grant of Dependents' Educational Assistance (DEA). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to July 1972. These matters came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in February 2009 pertaining to the issue of entitlement to an increased disability rating for chronic prostatitis status post TURP. A transcript of that hearing is associated with the claims file. The Veteran's chronic prostatitis claim appeal was remanded in October 2009. With respect to this claim, the Board observes that the Veteran originally filed his claim in January 2005 and such was denied in a May 2005 rating decision. Thereafter, he submitted a May 2005 letter from his physician, which was not of record at the time of the May 2005 rating decision. As such, in the June 2007 rating decision, the RO indicated that, since such information was received within a year from the date of the notification of the last decision, the prior decision was being reconsidered. Therefore, the Veteran's claim for an increased rating for chronic prostatitis has been pending since January 2005. In the June 2007 rating decision, the RO granted an increased rating to 10 percent, effective January 13, 2005, with a temporary total evaluation assigned from March 24, 2005, to May 1, 2005. Effective May 1, 2005, the 10 percent evaluation was reinstated and, effective July 25, 2005, a noncompensable evaluation was assigned. The Board noted that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board therefore characterized this issue accordingly. In February 2016, the Board remanded the Veteran's claims. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. An October 2009 notice of disagreement indicated the Veteran's allegation of clear and unmistakable error (CUE) in the June 2007 rating decision that denied service connection for prostate cancer. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for erectile dysfunction and coronary artery disease status post stent placement as well as entitlement to increased disability ratings for depression and chronic prostatitis status post TURP and entitlement to earlier effective dates for depression, TDIU, and DEA are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed June 2007 rating decision, the RO denied the Veteran's claim of entitlement to service connection for coronary artery disease status post stent placement. 2. The evidence received since the June 2007 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for coronary artery disease status post stent placement. CONCLUSIONS OF LAW 1. The June 2007 rating decision denying service connection for coronary artery disease status post stent placement is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Since the June 2007 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for coronary artery disease status post stent placement; therefore, the claim is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for coronary artery disease status post stent placement. Implicit in his claim is the contention that VA has received new and material evidence which requires the Board to reopen the previous denial of the claims. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Duty to Notify and Assist VA has a statutory and regulatory duty to notify and assist veterans in substantiating a claim for VA benefits pursuant to the Veterans Claims Assistance Act (VCAA). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As discussed below, there is sufficient evidence of record to grant the Veteran's request to reopen the claim for entitlement to service connection for coronary artery disease status post stent placement. The claim will be reopened. Therefore any error in complying with the notice or assistance requirements with respect to the request to reopen the claim is moot. The additional evidentiary development required for the adjudication of the Veteran's service connection claim on the merits is addressed in the remand section below. Service connection for coronary artery disease status post stent placement The Veteran seeks service connection for coronary artery disease status post stent placement. This claim was previously denied in a June 2007 rating decision. The Veteran did not appeal the June 2007 rating decision. It is incumbent on the Board, therefore, to adjudicate the new and material issue before considering the claim on the merits. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant]. Pertinent Legal Criteria Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. 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. See 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. Claim to Reopen The RO denied service connection for coronary artery disease status post stent placement in a June 2007 rating decision because there was no evidence in the service treatment records of treatment for or diagnosis of heart disease and medical evidence was not submitted showing that the Veteran was diagnosed with coronary artery disease within one year from date of discharge or that he was treated on a continuous basis since the date of discharge for that condition. Since the disease was not incurred in or aggravated in service, service connection was denied. The Veteran did not appeal the denial of the June 2007 rating decision and new and material evidence was not associated with the claims folder within one year of the rating decision. The decision therefore became final. At the time of the prior final rating decision in June 2007, the record in pertinent part included the Veteran's service treatment records as well as postservice VA and private treatment records. The Veteran's service treatment records are absent any complaint of or treatment for symptoms related to coronary artery disease. Post service treatment records documented treatment for coronary artery disease. A treatment record from Mercy Hospital showed that the Veteran was admitted in January 2006 for complaints of chest pain. An arteriogram revealed coronary artery disease with myocardial infarction. Three stents were placed in the coronary arteries that were blocked. As the June 2007 rating decision is final, new and material evidence is therefore required to reopen the claim. Specifically, in order to reopen, the evidence must show that the Veteran has coronary artery disease that is attributable to service. In reviewing the evidence added to the claims folder since the June 2007 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claim. Specifically, the Veteran now contends that he has had symptoms associated with coronary artery disease since service and that his coronary artery disease is secondary to his service-connected sarcoidosis. See, e.g., the August 2016 VA examination report. As indicated above, the Veteran's previous claim was denied because there was no evidence of coronary artery disease status post stent placement that was related to service. As the new evidence now indicates service-connected coronary artery disease, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, this evidence raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2017). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for coronary artery disease status post stent placement is reopened. VA's statutory duty to assist the Veteran in the development of his claim attaches at this juncture. For the reasons explained in the remand section below, the Board finds that additional development is necessary before a decision on the merits of the reopened claim may be rendered. In addition, the standard of review changes at this point. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and, therefore, the probative value of proferred evidence in the context of the record as a whole. The Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Although the evidence discussed above is adequate for the limited purpose of reopening the claim, this does not necessarily make it sufficient to allow the grant of the benefit sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) [material evidence is evidence that would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim]. The Board finds that additional evidentiary development is required. This will be discussed in the remand section below. ORDER The claim of service connection for coronary artery disease status post stent placement is reopened; to this extent only, the appeal is granted. REMAND With regard to the Veteran's claim of entitlement to service connection for coronary artery disease status post stent placement, he contends that he has coronary artery disease that is related to his service or alternatively his service-connected sarcoidosis. The Board notes that the Veteran's service treatment records are absent any complaints of or symptoms related to coronary artery disease. However, the Veteran is currently treated for such. The Veteran was provided a VA examination for his coronary artery disease status post stent placement in August 2016. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with arteriosclerotic heart disease and concluded that it is less likely than not that the Veteran's heart disease is related to his service-connected sarcoidosis. However, the examiner did not provide a rationale for his conclusion. Also, the VA examiner did not provide an opinion as to whether the Veteran's heart disease is aggravated by his sarcoidosis. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. There is no medical opinion of record addressing the issue of aggravation and no other opinion addresses whether the Veteran's heart disease is related to his sarcoidosis. In light of the foregoing, the Board finds that an addendum opinion should be obtained as to whether the Veteran's coronary artery disease is caused or aggravated by his service-connected sarcoidosis. With respect to the Veteran's claim of entitlement to service connection for erectile dysfunction, the Veteran contends that this disability is related to his service or is alternatively secondary to his service-connected depression and chronic prostatitis status post TURP. The Board notes that the Veteran's service treatment records are absent any complaints of or symptoms related to erectile dysfunction. However, the Veteran is currently treated for such. The Veteran was provided a VA examination for his erectile dysfunction in November 2014. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with erectile dysfunction and concluded that it is less likely than not that the Veteran's erectile dysfunction is related to his chronic prostatitis and depression. The examiner's rationale for his conclusion was based on his finding that the Veteran's erectile dysfunction started years after his chronic prostatitis and before he started his medication for depression. The examiner provided an addendum opinion in April 2015 indicating that the Veteran's erectile dysfunction was not aggravated by the prostatitis on the basis that the Veteran had erectile dysfunction before this disability. The examiner provided another addendum opinion in May 2015 indicating that the Veteran's erectile dysfunction was not aggravated by his depression as medication for depression does not cause erectile dysfunction. Crucially, the VA examiner's rationales for his medical opinions regarding a relationship between the Veteran's erectile dysfunction and chronic prostatitis in November 2014 and April 2015 are contradictory. Specifically, he noted in the November 2014 opinion that the Veteran's erectile dysfunction started years after his chronic prostatitis status post TURP. However, he noted in the April 2015 opinion that he had erectile dysfunction before his prostatitis. There is no other medical opinion of record addressing whether the Veteran's erectile dysfunction is caused or aggravated by his chronic prostatitis status post TURP. In light of the foregoing, the Board finds that an addendum opinion should be obtained as to whether the Veteran's erectile dysfunction is caused or aggravated by his service-connected chronic prostatitis status post TURP. With regard to the Veteran's claim of entitlement to an increased disability rating for chronic prostatitis status post TURP, he was most recently afforded a VA examination for this disability in November 2014. Pertinently, a review of the evidence of record indicates that this disability has since increased in severity. Specifically, the Veteran reported in a statement dated July 2016 that he must change the wearing of absorbent materials at least 5 to 6 times per day due to his prostatitis. Notably, he reported during the November 2014 VA examination that he must change absorbent materials less than 2 times per day. As the evidence therefore indicates a worsening of the Veteran's chronic prostatitis status post TURP, the Board finds that an examination is warranted in order to determine the current severity of this disability. With respect to the Veteran's claim of entitlement to an increased disability rating for depression, the Board previously remanded this claim in February 2016 for the AOJ to provide the Veteran a copy of a June 2012 VA examination report. The Veteran's claim was to then be readjudicated. A review of the record reveals that the AOJ provided the Veteran with a copy of the June 2012 VA examination. However, the Veteran's increased rating claim was not readjudicated pursuant to the directions of the February 2016 remand. Therefore, the Board finds that remand is warranted for compliance with the February 2016 Board remand instructions, specifically readjudication of the Veteran's increased rating claim for depression. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finally notes that the claim of entitlement to entitlement to an earlier effective date for the award of a 30 percent disability rating for depression is inextricably intertwined with the claim of entitlement to an increased disability rating for depression. Moreover, the remanded claims of entitlement to service connection for coronary artery disease status post stent placement and erectile dysfunction as well as entitlement to an increased rating for chronic prostatitis status post TURP and depression are inextricably intertwined with the issues of entitlement to earlier effective dates for TDIU and DEA. In other words, development of the Veteran's increased rating claim for depression may impact his earlier effective date claim for depression and his coronary artery disease, erectile dysfunction, chronic prostatitis, and depression claims may impact his TDIU and DEA claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate medical professional to obtain an opinion as to the etiology of the Veteran's current coronary artery disease status post stent placement and erectile dysfunction. The examiner is requested to review all pertinent records associated with the claims folder, including the Veteran's service treatment records, post-service medical records, and lay statements. If the clinician determines that another examination is needed, the Veteran should be scheduled for a new examination. Based on the review of the Veteran's claims file, the examiner is asked to opine as to the following: a. Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's coronary artery disease status post stent placement is due to his service-connected sarcoidosis. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's coronary artery disease status post stent placement is aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected sarcoidosis. If the examiner finds that the coronary artery disease status post stent placement is aggravated by the service-connected sarcoidosis, then he/she should quantify the degree of aggravation, if possible. c. Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's erectile dysfunction is due to his service-connected chronic prostatitis status post TURP. d. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's erectile dysfunction is aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected chronic prostatitis status post TURP. If the examiner finds that the erectile dysfunction is aggravated by the service-connected chronic prostatitis status post TURP, then he/she should quantify the degree of aggravation, if possible. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. In providing the requested opinion, the examiner should be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 2. The Veteran must be afforded a VA examination for the purpose of determining the current severity of his service-connected chronic prostatitis status post TURP. The examiner should describe in detail all current symptoms of the Veteran's chronic prostatitis status post TURP. All tests and studies deemed necessary by the examiner should be performed. A complete rationale for all opinions must be provided. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs