Citation Nr: 1802216	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-23 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers.

2. Entitlement to service connection for a stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers.

3. Entitlement to an initial compensable rating for service-connected bilateral hearing loss.

4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and T.W.


ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The Veteran served on active duty from May 1975 to June 1976. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from a decision of a Department of Veterans Affairs (VA) Regional Office (RO).  A February 2012 decision denied service connection for ulcers on the basis that no new and material evidence sufficient to reopen the previously denied claim was received.  A November 2015 decision granted service connection for bilateral hearing loss and assigned the same an initial noncompensable rating, effective May 16, 2014.  

The Veteran and T.W. testified before the undersigned at a November 2016 video-conference hearing.  A hearing transcript is in the claims file.

During the Veteran's November 2016 Board hearing, he asserted that he had been let go from his construction job, and prior jobs, due to his inability to hear in hazardous conditions.  The parties to the hearing discussed submitting employment information to support the Veteran's increased rating claim.  As such, the issue of entitlement to a TDIU is raised by the record and the Board has captioned the issues on the title page herein to reflect such.  Rice v. Shinseki, 22 Vet. App. 447 (2009) (VA must address the issue of entitlement to a total disability rating based on individual unemployability in increased-rating claims when the issue of unemployability is raised by the record).

The issues of entitlement to service connection for a stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers; entitlement to an initial compensable rating for service-connected bilateral hearing loss; and entitlement to a TDIU, addressed in the REMAND portion of the decision below, are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran did not appeal an August 1996 RO decision that denied entitlement to service connection for bleeding ulcers.

2. Evidence received since the August 1996 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers.


CONCLUSIONS OF LAW

1. The August 1996 RO decision that that denied entitlement to service connection for bleeding ulcers is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2017). 

2. The evidence received subsequent to the August 1996 RO decision is new and material; the claim of entitlement to service connection for a stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers is reopened.  38 U.S.C.         § 5108 (2012); 38 C.F.R. §§ 3.156 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.302.  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). 

The last final denial of the Veteran's claim of entitlement to service connection for bleeding ulcers was in August 1996, and he was notified of the same in an August 1996 letter from the RO.  The Veteran did not file a Notice of Disagreement (NOD), nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period.  38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  As such, the August 1996 rating decision became final.

Relevant evidence added to the record since the prior RO rating decision includes the Veteran's statements, including those made during his November 2016 Board hearing, as to in-service stomach complaints, as well as post-service treatment records revealing treatment for stomach disabilities.  While such statements and treatment records are not sufficient evidence to grant service connection, further development by VA is required in order to adjudicate the appeal.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (in determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim with VA's assistance). 



An examination is warranted to determine the onset and etiology of the Veteran's stomach disability.  Such is the VA assistance contemplated by Shade and there is new and material evidence; the claim is thus reopened.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for a stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers, is reopened, and to that extent only, the appeal is granted.


REMAND

The Veteran asserts that his stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers, began during service.  During his November 2016 Board hearing, and in written statements of record, the Veteran asserted that he sought treatment at sick call during service on a number of occasions after experiencing stomach symptoms after eating breakfast during basic training, and that he was treated with Tagamet.  He also reported that he fell down the stairs and injured his side and experienced pain.

The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of a stomach disability.  He reported left-sided pain on a number of occasions and was diagnosed with muscle pain in July 1975 and muscle strain in June 1976.  

His post-service VA treatment records dated from 1977 to 1995 have been deemed unavailable by an October 2012 Formal Findings of Unavailability, and the Veteran was informed by such in an October 2012 notification letter; however, the Veteran reports VA treatment for his stomach disability in 1976 or 1977.  His October 1995 VA treatment records reveal hospitalization for probable upper gastrointestinal bleed, a history of peptic ulcer disease, and the Veteran reported his pertinent medical history to include symptoms of such since 1977, when he presented for VA treatment with hematemesis suggestive of duodenal ulcer, treated with Tagamet.  His available VA treatment records show treatment for related complaints in as early as February 2012.

On remand, the AOJ should afford the Veteran a VA examination to determine the etiology of any stomach disability found present during the course of the appeal.

As to the Veteran's increased rating claim, the AOJ afforded him a VA audiological examination to determine the severity of his service-connected bilateral hearing loss in December 2017.  The AOJ has not yet issued a Supplemental Statement of the Case (SSOC) as to his issue and such is required before the Board may adjudicate the claim.  On remand, the AOJ should issue a SSOC on this issue.

The Board has raised the issue of entitlement to a TDIU, discussed above, based on the Veteran's statements during his November 2016 Board hearing.  On remand, the AOJ should conduct appropriate development of a TDIU claim, including issuing the Veteran appropriate notice of the same and seeking employment information.  

The Veteran's most recent VA treatment records associated with the claims file are dated in December 2016; on remand, the AOJ should obtain his updated VA treatment records.  In this regard, while the Veteran's VA treatment records dated from 1977 to 1995 are unavailable, the RO, in its list of evidence considered in its adjudication of the claim, has included the Veteran's VA treatment records dated from 1995 to 2012.  Review of the claims file reveals records from 1995, and then 2008 to the present.  It is not clear if the Veteran sought VA treatment from 1995 to 2008.  On remand, the AOJ should also seek any outstanding VA treatment record dated from 1995 to 2008. 

Accordingly, the case is REMANDED for the following action:

1. Send the Veteran appropriate notice specific to the raised TDIU claim that comports with The Veterans Claims Assistance Act of 2000 (VCAA).

2. Contact the Veteran and request that he submit a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.  Submit for completion VA Forms 21-4192, Request for Employment Information in Connection with Claim for Benefits, to any identified prior employers.

3. Make arrangements to obtain and associate with the Veteran's claims file his complete VA treatment records, including those dated since December 2016 and those dated from 1995 to 2008.

4. Issue the Veteran a SSOC as to the issue of entitlement to an initial compensable rating for service-connected bilateral hearing loss, considering results of the December 2017 VA audiological examination and any other relevant evidence received.

5. Schedule the Veteran for a VA examination as to his stomach disability.  A complete examination, including any required diagnostic tests, should be completed. 

The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's stomach disability, claimed as bleeding ulcers, ulcers, and duodenal ulcers, was/were incurred in active service, considering the Veteran's lay assertions that he had stomach symptoms after 


breakfast on a number of occasions during basic training, sought treatment at sick call, his in-service treatment records reflecting complaints and treatment for left-sided pain, and his lay assertions that he has experienced continued stomach symptoms since that time.

The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review.  A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles.  If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

6. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims considering any additional evidence added to the record.  If any action remains adverse to the Veteran, provide him and his representative with a SSOC and allow him an appropriate opportunity to respond thereto.  Thereafter, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  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 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).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs