Citation Nr: 1804713 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-18 768A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a skin disability. 2. Whether new and material evidence has been received to reopen the claim for service connection for a rectal disorder to include anal fissures and hemorrhoids. 3. Whether new and material evidence has been received to reopen the claim for service connection for a gastrointestinal disorder to include gastroesophageal reflux disease (GERD). 4. Entitlement to service connection for a skin disability. 5. Entitlement to an initial rating in excess of 10 percent for sinusitis. 6. Entitlement to a rating in excess of 30 percent for coronary artery disease. 7. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 8. Entitlement to an effective date earlier than May 1, 2007 for the grant of service connection for coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty in the Air Force from May 1968 to April 1973. This appeal to the Board of Veterans' Appeals (Board) is from January 2010 and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran requested a videoconference hearing; however, he also stated if the hearing was not held within three months then the request for a hearing was withdrawn. Since a hearing was not scheduled within three months of the request, it is considered withdrawn. The issues of service connection for a skin disability; higher ratings for sinusitis, PTSD, and coronary artery disease; and an earlier effective date for the grant of service connection for a heart disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A September 2006 unappealed rating decision denied service connection for a gastrointestinal (GI) disability. 2. Evidence received since the September 2006 rating decision is cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection. 3. A March 2007 rating decision denied service connection for a skin disability and a rectal disability; the Veteran initiated, but did not perfect a timely appeal of this decision. 4. Evidence received since the March 2007 rating decision related to a rectal disability is cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection. 5. Additional evidence received since the March 2007 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a skin disability, and does raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the final September 2006 rating decision, and the claim for service connection for a gastrointestinal disability to include GERD is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has not been received since the final March 2007 rating decision, and the claim for service connection for rectal disability to include anal fissures and hemorrhoids is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received since the final March 2007 rating decision, and the claim for service connection for a skin disability is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). Although the Veteran's representative did not identify and specific errors in VA's discharge of its duty, it nonetheless made a blanket statement to preserve the right to appeal any errors that may have occurred. The Board finds no errors exist in complying with the duties to notify and assist. VA must provide notice that satisfies the requirements of the opinion of the VA General Counsel in VAOPGCPREC 6-2014. Notice must be given of "the information and evidence necessary to substantiate the particular type of claim being asserted." VA is required "to explain what 'new and material evidence' means." Id., para. 5, citing Akers v. Shinseki, 673 F.3d 1352 (Fed. Cir. 2012). In this case, the September 2009 and April 2012 notice letters provided notice of the elements of service connection and new and material evidence; thus, the criteria of VAOPGCPREC 6-2014 are satisfied. The duty to notify, therefore, has been met. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. VA has obtained all identified and available service and post-service treatment records for the Veteran. VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Since VA's duties have been met, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria and Analysis As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). To reopen a claim following a final decision, new and material evidence must be submitted. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade, 24 Vet. App. at 117. GI Disability The RO denied service connection for a GI disability in September 2006 on the basis that the claimed disability was not related to service. See Rating Decision - Narrative received in September 2006. The evidence considered at that time included service treatment records, postservice VA treatment records, and a June 2006 VA examination report. The service treatment records contained no evidence of a GI disorder and while a January 1971 record noted vomiting, this was attributed to anxiety. See page 95 of STR - Medical. The postservice VA treatment records reflect a history of GERD. A June 2006 VA examination noted the Veteran's history and current symptoms, and diagnosed gastric reflux. The VA examiner, however, opined that the Veteran's stomach disorder was not likely related to service. See Medical Treatment record - Government Facility received in February 2006 and VA Examination received in June 2006. The Veteran was notified of this decision, but he did not appeal it or submit new and material evidence within one year of the decision; therefore, the September 2006 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). Evidence received since the September 2006 rating decision is cumulative of evidence already considered. In this regard, the evidence continues to show the presence of GI symptoms, treatment and diagnoses. See VA Examination received in March 2007, Medical Treatment record - Government Facility received in July 2008, April 2010, and December 2011, and Medical Treatment Records - Furnished by SSA received in October 2008. Due to its cumulative nature, the evidence received since the September 2006 rating decision does not address an unestablished fact necessary to substantiate the claim nor does it raise a reasonable possibility of substantiating the claim. Thus, the Board finds new and material evidence has not been received to reopen the claim for service connection. Rectal Disability A March 2007 rating decision denied service connection for a rectal disability claimed as anal fissures and hemorrhoids on the basis that the claimed disability was not related to service. See Rating Decision - Narrative received in March 2007. The evidence considered at the time of this rating decision includes service treatment records, postservice treatment records, and a March 2007 VA examination report. The service treatment records include March 1970 medical history and examination reports that show the Veteran reported a history of occasional hemorrhoids that did not require treatment and resolved on their own. See STR - Medical. Post service treatment records indicate the Veteran had surgery for anal fissures in October 2005. See Medical Treatment record - Government Facility received in February 2006. The March 2007 VA examination contains a history of the anal fissure and hemorrhoids were noted to be present on the current examination, but a nexus opinion was not provided. See VA Examination received in March 2007. The Veteran was notified of this decision, and although he initiated an appeal by filing a May 2007 notice of disagreement with that decision, he did not perfect his appeal subsequent to the issuance of a March 2008 statement of the case; therefore, the March 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received since the March 2007 rating decision is cumulative of evidence previously considered since it continues to show the recurrence of hemorrhoids and anal fissure. See Medical Treatment record - Government Facility received in January 2008, February 2009, and April 2010, Medical Treatment Records - Furnished by SSA, and CAPRI records received in February 2013. A November 2014 statement from the Veteran is also cumulative of evidence of hemorrhoids in service and after service. See VA 21-4138 Statement in Support of Claim received in December 2014. The records received since March 2007 does not contain evidence of unestablished fact necessary to substantiate the claim, such as evidence of a nexus linking the current hemorrhoids to hemorrhoids in service. Thus, none of the new evidence is material or raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has not been received to reopen the claim. Skin Disability A March 2007 rating decision denied service connection for a skin disability based on a finding that the claimed skin disability was not related to service. See Rating Decision - Narrative received in March 2007. The evidence considered at that time of this rating decision included service treatment records, postservice VA treatment records, a photograph, and a March 2007 VA examination report. The service treatment records show the Veteran was seen for a rash on his face in January and March 1973, but no do diagnosis was offered. See STR - Medical. In December 2006, the Veteran submitted photographs of his face. See December 2006 Photographs. The March 2007 VA examination noted the Veteran's history of intermittent rashes on his face and scalp since Vietnam. The examiner diagnosed eczema, but a nexus opinion was not provided. The Veteran was notified of this decision, and although he initiated an appeal by filing a May 2007 notice of disagreement with that decision, he did not perfect his appeal subsequent to the issuance of a March 2008 statement of the case; therefore, the March 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence received since the March 2007 is not all cumulative of the evidence previously considered. While the medical records considered in March 2007 only contained a diagnosis of eczema, the evidence received since then contains additional diagnoses of dermatitis and tinea cruris. See CAPRI record received in May 2016 and October 2016. This evidence is material because the additional skin diagnoses were not previously considered and when considered along with the other evidence of record they raise a reasonable possibility of substantiating the claim since the rash in service was not diagnosed. Thus, new and material evidence has been received. ORDER New and material evidence having not been received, the petition to reopen the claim for service connection for a gastrointestinal disability is denied. New and material evidence having not been received, the petition to reopen the claim for service connection for a rectal disorder is denied. New and material evidence having been received, the petition to reopen the claim for service connection for a skin disability is granted. REMAND A May 2011 rating decision granted service connection for a heart disability with an effective date of May 1, 2007. See Rating Decision - Narrative received in May 2011. In December 2011, the RO received a statement in which the Veteran disagreed with the effective date. See Statement in Support of Claim received in December 2011. The RO appears to have treated the statement as a claim, since a July 2012 rating decision denied an earlier effective date for the grant of service connection. See Rating Decision - Narrative received in July 2012. The proper response to the statement, which is easily construed as a notice of disagreement, was to issue a statement of the case (SOC), which was not done. Under the circumstances, the Board is required to remand, rather than refer, the issue to the attention of the agency of original jurisdiction (AOJ). See Manlincon v. West, 12 Vet. App. 238 (1999). The Board reopened the claim for service connection for a skin disability after finding new and material evidence had been received. An opinion is now needed to determine of the current skin disability is related to service. The remaining issues on appeal for higher ratings for service-connected sinusitis, PTSD, and coronary artery disease need additional development. The Veteran's representative indicates years have passed since the Veteran's last VA examinations concerning his service-connected sinusitis, PTSD, and coronary artery disease and suggests that these disabilities may have worsened in the interim. See Appellate Brief received in December 2017. The record shows that the most recent examinations were in November 2013 for his PTSD and heart disability, and April 2015 for sinusitis. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the file copies of VA treatment record since October 2016. 2. After obtaining additional treatment records schedule the Veteran for a VA examination to determine the current severity of his PTSD. The clinician must be given access to the Veteran's claims file for review. Any indicated tests or studies should be completed. The examination report must contain all pertinent symptoms and findings concerning the Veteran's PTSD utilizing the appropriate DBQ. 3. After obtaining additional treatment records schedule the Veteran for a VA examination to determine the severity of his sinusitis. The clinician must be given access to the Veteran's claims file for review. Any indicated tests or studies should be completed. The examination report must contain all pertinent symptoms and findings concerning the Veteran's sinusitis utilizing the appropriate DBQ. 4. After obtaining additional treatment records schedule the Veteran for a VA examination to determine the severity of his coronary artery disease. The clinician must be given access to the Veteran's claims file for review. Any indicated tests or studies should be completed. The examination report must contain all pertinent symptoms and findings concerning the Veteran's heart disability utilizing the appropriate DBQ. 5. After obtaining additional treatment records schedule the Veteran for a VA examination to determine the etiology of his skin disorder. The clinician must be given access to the Veteran's claims file for review. Based on the examination, review of the record, and the Veteran's history, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a skin disability that had its onset during service or is otherwise related to service to include the reports of skin rashes noted therein. The examiner must include a rationale that supports the opinion with reference to medical evidence as needed. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claims on appeal. If any claim is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 8. Issue an SOC with regard to the issue of entitlement to entitlement to an earlier effective date for the grant of service connection for a heart disability. Inform the Veteran of his appeal rights and that he must perfect an appeal if he desires appellate review of this issue. Thereafter, this issue should be returned to the Board for further appellate review only if the appeal of the service connection for sleep apnea issue is perfected. 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). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs