Citation Nr: 1804885 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-05 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and anxiety with dysthymia. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for irritable bowel syndrome (IBS), as secondary to gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for irritable bowel syndrome IBS, as secondary to GERD. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Brendan B. Garcia, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. M. Harris, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to April 1979 in the US Air Force and February 1987 to June 1987 in the US Army on active duty. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision from the RO in Oakland, California, and a September 2013 and a January 2015 rating decision before the RO in Chicago, Illinois. All matters are currently before the RO in Chicago, Illinois. By an April 2003 rating decision, the RO denied the claim for service connection for anxiety disorder with dysthymia. The evidence list does not include service personnel records. In January 2013, the Veteran filed a claim for "mental condition" and "Psychological Problems" and stated that he was discharged from the Army for emotional problems, and, thereafter, attached service personnel records concerning his separation from service. The RO considered the issue in September 2013 and again in May 2017 characterized under an entitlement for service connection for PTSD. Under 38 C.F.R. § 3.156(c), if VA receives or associates with the claim file relevant official service department records that existed and had not been associated with the claim file when VA first decided the claim, VA will reconsider the claim. If the service records are "relevant," then the claim becomes one for reconsideration rather than a claim to reopen. The Board determines that the service records are relevant for purposes of reconsidering this claim because they relate to the missing element of a nexus between an in-service event and the Appellant's current psychiatric disabilities. Since the service personnel records associated with the claim file were not a part of the April 2003 initial denial of the Veteran's mental disability claim, under 38 C.F.R. § 3.156(c), the issue is considered an ongoing claim, or part of an already pending appeal. Accordingly, the issue is recharacterized as shown on the first page of this decision and it is acknowledged that such description includes a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and anxiety with dysthymia. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The RO adjudicated entitlement to service connection for anxiety disorder with dysthymia separately from the entitlement to service connection for PTSD, despite the fact that the record shows that the Veteran has been diagnosed with mental health disabilities that may reasonably be encompassed within the same claim. In June 2017, the Veteran filed a timely Notice of Disagreement with a June 2017 rating decision which denied service connection for PTSD. Because the issues for which the Veteran has perfected an appeal include entitlement to service connection for an acquired psychiatric disorder, the Board has expanded the issue to include PTSD. Accordingly, the issue is recharacterized as shown on the first page of this decision. In March 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript for that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for sleep apnea, acquired psychiatric disorders, to include posttraumatic stress disorder (PTSD) and anxiety with dysthymia, and IBS, as secondary to GERD are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Service connection for IBS, as secondary to GERD was denied in a February 2010 rating decision. The Veteran was informed of the decision but he did not appeal the decision and he did not submit new and material evidence within a year of the decision. Therefore, the decision became final. 2. Evidence received since the February 2010 rating decision is relevant and probative to the issue on appeal and relates to unestablished facts necessary to substantiate the claim for service connection for IBS as secondary to GERD. CONCLUSIONS OF LAW 1. The February 2010 RO decision, which denied service connection for IBS, as secondary to GERD, is final. 38 U.S.C. § 7104; 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria for reopening the claims for service connection for IBS, as secondary to GERD have been met. 38 U.S.C. §§ 5108, 7103(a) (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. See 38 U.S.C. §§ 5102, 5103(a), 5103A, 5106 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017); See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria and Analysis Service connection for IBS, as secondary to GERD, was denied in a February 2010 rating decision on the merits, with the RO finding that IBS was not related to GERD nor was there any evidence of this disability during military service. The Veteran did not appeal the decision and it became final. The RO's February 2010 decision is final based upon the evidence then of record. A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In the present case, this means that the Board must look at all the evidence submitted since the February 2010 decision. The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has made a careful review of the record. At the time of the prior denial, there was evidence of a diagnosed disability but no evidence of a nexus to service or a service connected disability. Since then, in September 2017, the Veteran submitted a DBQ from a VA physician that states the Veteran has had IBS since service. This new evidence relates to a nexus between the Veteran's claimed IBS and service. This new evidence cures a prior evidentiary defect; namely, a nexus to service or a service connected disability. In addition, this new evidence is relevant and probative. As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for IBS, as secondary to GERD is reopened and in this regard, the Veteran's appeal is granted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). ORDER The application to reopen the claim for service connection for IBS, as secondary to GERD is granted. REMAND The Board finds that additional development is needed before final adjudication of the issues on appeal. The Board notes that the evidence of record indicates that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). At the March 2017 hearing, the Veteran indicated that he is in receipt of SSA disability and has been receiving it since 2012, and he believes that, at least in part, is due to his depression. While not clear as to the basis of the award, because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Consequently, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Regarding the issue of service connection for acquired psychiatric disabilities to include PTSD and anxiety with dysthymia, the Board finds that a new examination is warranted. While the record contains a May 2017 PTSD VA examination which includes an etiology opinion relating PTSD to an event the Veteran experienced while in service, namely, that his three year old son almost fell to his death, this stressor has not been corroborated. Indeed, ,the Veteran did not even mention this stressor at the hearing. Rather, he has repeatedly and consistently attributed his psychiatric disability to his gastrointestinal problems, GERD and IBS. He so reiterated at the hearing. Therefore, a new examination is needed to confirm the current psychiatric diagnoses and to obtain an etiology opinion. The Veteran has claimed entitlement to service connection for IBS, to include as secondary to service-connected GERD. In September 2017, the Veteran submitted a DBQ from a VA treatment provider that traced the onset of the Veteran's IBS to active duty service. However, the Board notes that there is not an adequate rationale as to why he believes IBS started in service. Rather, he only provided a conclusory statement that IBS has existed since service. Moreover, there is no opinion as to whether IBS is related to GERD. Therefore, the Board will remand to afford the Veteran a medical examination. As to the sleep apnea issue, in September 2013, the RO denied service connection for sleep apnea. The RO has yet to issue a statement of the case on that issue. Where an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the matters for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). On remand, therefore, the Veteran must be provided an SOC that addresses the issue of entitlement to service connection for sleep apnea. The Veteran must be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on the issues to secure appellate review by the Board. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Update the Veteran's VA treatment records by obtaining all treatment records since September 2017. All attempts to fulfill this development must be documented in the claim file. If the search for any such records yields negative results, that fact should be clearly noted and the Veteran must be informed in writing. All information, which is not duplicative of evidence already received, should be associated with the electronic record. 2. Ask the Social Security Administration to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA benefits, to include any medical records considered in making a decision on that application. 3. After completion of the development in (1) and (2) above, schedule the Veteran for a psychiatric VA examination. The examiner should be provided a copy of the claim file and note review of the file in the examination report. All necessary tests and studies should be conducted. After an examination of the Veteran, the examiner should provide answers to the following questions: (1) Identify all psychiatric disabilities the Veteran currently has or has been diagnosed with during the appeal period. (2) For each diagnosed psychiatric disability, provide and opinion as to whether it is at least as likely as not the that disability was caused by or incurred in service. (3) For each diagnosed psychiatric disability, provide an opinion as to whether it is at least as likely as not that the disability was caused by or aggravated beyond its natural progression by IBS or the service connected GERD. In rendering the opinion the examiner is invited to take into consideration the following records: the Veteran's Service Treatment Records, the Veteran's Military Personnel Records regarding his reason for discharge, the May 2017 PTSD VA examination, which diagnosed the Veteran with PTSD; and any VA treatment records related to the Veteran's psychiatric diagnoses. A detailed rationale should be furnished for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, a reason for the same should be provided.. 4. After completing the development in (1) and (2) above, schedule the Veteran for new examination to determine the nature and etiology of his IBS. The examiner must be given access to the Veteran's file and the examination report must state a review of the file was conducted. All necessary tests and studies should be conducted. After an examination of the Veteran, the examiner should provide an opinion as to whether the currently diagnosed IBS was incurred in or aggravated by service; or in the alternative, whether it was caused by or aggravated beyond its natural progression by the service connected GERD. A detailed and complete rationale for any opinion rendered must be provided. If an opinion cannot be rendered without resorting to mere speculation, a reason for the same should be provided Attention is invited to the September 2017 DBQ submitted by the Veteran and filled out by the Veteran's VA treatment provider, which traces the onset of the Veteran's IBS to active duty service. 5. Issue an SOC for the issue of service connection for sleep apnea. The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. If the Veteran perfects the appeal as to this issue, the issues must be returned to the Board for appellate review, if otherwise in order. If upon completion of the above actions the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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.A. §§ 5109B, 7112 (2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans'Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs