Citation Nr: 18140987 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-15 760 DATE: October 9, 2018 ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than December 16, 2013 for service connection for coronary artery disease, status post myocardial infarction. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 4. Entitlement to service connection for a bilateral hearing loss disability. 5. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder, to include to PTSD. 6. Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease, to include as secondary to an acquired psychiatric disorder, to include to PTSD. 7. Entitlement to service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include to PTSD. 8. Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease, status post myocardial infarction. October 9, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include to PTSD, is granted. Entitlement to an earlier effective date earlier than December 16, 2013 for service connection for coronary artery disease, status post myocardial infarction, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease, to include as secondary to an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease, status post myocardial infarction, is remanded. FINDINGS OF FACT 1. In an unappealed May 2015 rating decision, the RO denied service connection for GERD. A medical treatise abstract supporting a link between GERD and psychological stress was not received prior to May 2015 and is neither cumulative nor redundant of the evidence at the time of the May 2015 rating decision and assuming its credibility raises a reasonable possibility of substantiating the claim. 2. The Veteran's initial claim for service connection for coronary artery disease was received on December 16, 2014 and, under the Fully-Developed Claim (FDC) process, properly assigned an effective date of December 16, 2013. CONCLUSIONS OF LAW 1. The May 2015 rating decision denying service connection for GERD is final and the evidence received for service connection subsequent to the rating decision is new and material to reopen service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (1), 3.303, 20.1105 (2017). 2. The criteria for an effective date earlier than December 16, 2013, for the award of service connection for coronary artery disease, have not been met. 38 U.S.C. § 5110 (b)(2)(A) (2012); 38 C.F.R. § 3.155 (2014), 38 C.F.R. §§ 3.156, 3.400 (2017).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1970 to February 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. VA has met all the duty to notify and assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326 (2017). VA’s duty to notify was satisfied by October 2014, November 2014 and July 2015 letters sent to the Veteran. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also, Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment and personnel records and post-service treatment records have been associated with the record. The Veteran has been afforded numerous VA examinations. Because there is no indication in the record that any additional evidence pertinent to the claim is available and unassociated with the file, the Board concludes VA has satisfied its duty to assist. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include PTSD The Veteran contends that he is entitled to service connection for GERD, to include as secondary an acquired psychiatric disorder, to include PTSD. By way of procedural history, the Veteran’s initial claim for service connection for GERD was denied in a May 2015 rating decision. In a December 2015 rating decision, the RO declined to reopen the Veteran’s claim for entitlement to service connection for GERD. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 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. 38 C.F.R. § 3.156 (a). The Board is aware that when 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). An abstract of an article in a medical treatise titles “Psychological aspects of the functional gastrointestinal disorders” was attached to the Veteran’s March 2016 Notice of Disagreement (NOD). The abstract stated that there is increasing evidence showing a link between psychological stress and gastrointestinal disorders. The Board finds that this medical treatise evidence was not previously submitted to VA before the May 2015 rating decision and is therefore “new” evidence. The Board will now turn to a discussion of whether this new evidence is “material.” The evidence received subsequent to the May 2015 rating decision is a medical treatise abstract which claims there is increasing evidence showing a link between psychological stress and gastrointestinal disorders. While the Veteran is not currently service-connected for any psychological disorder, the Board notes that the claim for service connection for an acquired psychiatric disorder, to include PTSD, is currently in appellate status. The Board finds that, assuming its credibility for purposes of deciding whether to reopen the claim, this medical treatise evidence of record constitutes new and material evidence to reopen the claim for service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include PTSD. This new evidence addresses a requirement of service connection that was previously denied; a nexus linking the Veteran’s claimed disability to his service, to include as secondary to an acquired psychiatric disorder. Therefore, this new evidence is material and the Veteran’s claim for service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include PTSD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Entitlement to an earlier effective date for service connection for coronary artery disease, status post myocardial infarction Generally, the effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (b)(2) (2017). In cases where service connection was granted on the basis of new and material evidence following a prior disallowance, the effective date is the later of the date of receipt of the application to reopen or the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a) (2014). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the Veteran for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. According to 38 U.S.C. § 5110 (b)(2)(A), "the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application." A claim for service connection submitted through the FDC process, by definition, meets the statutory requirement of "an original claim that is fully-developed." See 38 38 U.S.C. § 5110. A review of the claims file shows that VA received a Statement in Support of Claim from the Veteran on September 12, 2014, in which he stated that he “intend[s] to apply for compensation benefits under the FDC program.” On October 8, 2014, the RO sent the Veteran a letter acknowledging that it had received his informal claim, and requesting that he formalize his claim by submitting a VA Form 21-526, Veteran's Application for Compensation and Pension. The letter also notified him that he could take up to a year from the date of the letter to submit the requested information. The letter was sent to his latest address of record and was not returned from the United States Postal Service as undeliverable. A copy of the letter was also sent to his representative. Subsequently, VA received a VA Form 21-526, Veteran's Application for Compensation and Pension, listing, among others, a claim for coronary artery disease (claimed as a heart condition secondary to Agent Orange). In a May 2015 rating decision, service connection was granted for coronary artery disease with an effective date of December 16, 2013. The Veteran maintains that his effective date of service connection should be earlier than December 16, 2013, which is one-year retroactive to the date VA received his formal claim. As the Veteran's claim was submitted under the FDC framework, the Board finds that the rules governing the assignment of effective dates for claims decided under the FDC process apply to the present claim. 38 U.S.C. § 5110 (b)(2)(A) (2012). When assigning a retroactive effective date to an FDC, as the RO did here, an original compensation claim received from August 6, 2013 through August 5, 2015 must receive consideration of entitlement to an effective date prior to the date of that claim under PL 112-154, Section 506, to include up to one full year prior to the date the FDC claim was received. See M21-1, Part III, Subpart I, Chapter 3, Section B, para. 4(b) (April 15, 2016). The provisions of PL 112-154, Section 506, however, do not apply to informal claims filed prior to March 24, 2015. See M21-1, Part III, Subpart I, Chapter 3, Section B, para. 4(a) (April 15, 2016). The Board acknowledges that the September 12, 2014 informal claim noted the Veteran's intent to apply for benefits, and though without identifying the benefit sought, was indeed interpreted as an informal claim by the RO. Also, as previously discussed, if a formal claim is filed within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Here, because the Veteran did file a formal claim within one year of his informal claim, a date based on a prior, pending, unadjudicated claim can be made available for September 12, 2014. However, informal claims have not been incorporated into the FDC law. Moreover, the current effective date assigned under the FDC process is December 16, 2013, and this date predates the informal claim date. Thus, the effective date of December 16, 2013 is more beneficial to the Veteran. The RO correctly applied the rules for determining effective dates, under the FDC process. The issue of entitlement to an effective date earlier than December 16, 2013, for the initial grant of service connection for coronary artery disease, is not warranted under any rule for assigning an effective date. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt; however, as the preponderance of the evidence is against the Veteran's appeal for an earlier effective date, the doctrine is inapplicable. See, Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran was afforded a VA hearing loss examination in April 2015. The examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not related to his military service and, citing the Institute of Medicine, stated that “a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.” 2. Subsequently, the Veteran’s counsel submitted a series of abstracts regarding noise exposure and hearing loss, one of which notes that delayed degeneration of the cochlear nerves due to acoustic “overexposure” is possible. As such, the Board finds that a remand for an addendum opinion is required. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran maintains that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. In support of this contention, the Veteran has related two PTSD stressors based on his combat experiences in Vietnam. According to 38 U.S.C. § 1154 (a) (2012), the Secretary must consider the places, types, and circumstances of the Veteran's service, unit's history, service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C. § 1154 (b) (2012). The Board notes that the Veteran’s DD Form 214 reveals that the Veteran served in the Republic of Vietnam from November 1970 to November 1971 and was awarded, among others, the Vietnam Campaign Medal with 60 Device, the Vietnam Service Medal, and the Army Commendation Medal. The Veteran’s DD Form 214 further indicates that the Veteran’s military occupational specialty (MOS) was FA Basic, which indicates service in the field artillery. A November 1971 service personnel record notes the Veteran was awarded the Army Commendation Medal for "meritorious service in connection with military operations against a hostile force" in the Republic of Vietnam while assigned to the 5th Battalion, 42nd Field Artillery Regiment. Further, the veteran’s Record of assignments notes the Veteran performed in both ammo handler and cannoneer roles. A further service personnel record notes the Veteran was involved in an "unnamed campaign". Based on the above, the Board concedes that the Veteran's stressors are related to his fear of hostile military or terrorist activity. Section 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See, Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. See, Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also, Kessel v. West, 13 Vet. App. 9, 17-19 (1999). An October 2014 VA treatment record notes the Veteran screened positive for PTSD and depression. The Veteran reported moderately severe symptoms of depression, difficulty sleeping, low self-worth, and lack of concentration. The Veteran further reported mild anxiety and symptoms of PTSD that were "considered below clinically significant thresholds." The Veteran also reported heavy use of alcohol since returning from Vietnam to "deal with his demons". A DSM-5 diagnosis of major depressive disorder was noted, as well as alcohol use disorder, rule out PTSD and unspecified anxiety disorder. The Veteran was afforded a VA PTSD examination in April 2015. The Veteran’s reported stressors were both noted as meeting Criterion A for a diagnosis of PTSD and being related to the fear of hostile military or terrorist activity. The Board notes that no symptoms were listed and the examiner found that the Veteran's symptoms do not meet the DSM-5 diagnostic criteria for PTSD and that the Veteran does not have a mental disorder that conforms to DSM-5, but did diagnose alcohol use disorder. In July 2015, VA received a document from the Veteran listing numerous, self-reported mental health symptoms, including: anger, anxiety, chronic sleep problems, depression, difficulty making decisions, flashbacks, alcohol use, inappropriate behavior, memory loss, neglecting his family, problems getting along with people, suspiciousness, taking mental health medications, and an inability to share feelings. The Board finds that a remand for a new VA examination is necessary to clarify whether the Veteran suffers from an acquired psychiatric disorder, to include PTSD and major depressive disorder. 3. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder, to include to PTSD is remanded. The Board cannot make a fully-informed decision on the issue of sleep apnea because no VA examiner has opined whether the Veteran’s sleep apnea is related to his military service, to include as secondary to a claimed, acquired psychiatric disorder. As such, a remand for a VA examination is required. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease, to include as secondary to an acquired psychiatric disorder, to include to PTSD, is remanded. The Veteran was afforded a VA examination in December 2015. The examiner opined that the Veteran’s hypertension was less likely than not related to his military service, noting that the Veteran’s hypertension was present prior to his myocardial infarction and diagnosis of coronary artery disease. Subsequently, the Veteran’s counsel submitted a series of abstracts regarding the impact of mental health conditions on hypertension. Because a decision on the claimed issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection for hypertension, the issues are inextricably intertwined, and as such, a remand is required. 5. Entitlement to service connection for GERD, to include as secondary to an acquired psychiatric disorder, to include to PTSD, is remanded. The Veteran was afforded a VA examination in December 2015. The examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not related to his military service. Subsequently, the Veteran’s counsel submitted a series of abstracts regarding the impact of mental health conditions on hypertension. Because a decision on the claimed issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection for GERD, the issues are inextricably intertwined, and as such, a remand is required. 6. Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease, status post myocardial infarction is remanded. A November 2017 VA treatment record notes the Veteran reported intermittent chest pain over the past few years, occurring with activity. The doctor noted "likely CHF based on medications with c/o intermittent chest pain over the past few years, occurring with activity, without associated symptoms of SOB, dizziness, or palpitations." The Board notes that this appears to be an increase in severity and, as such, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of coronary artery disease, status post myocardial infarction. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2016 to the present. 2. After, and only after, completion of step one above, schedule the Veteran for a psychiatric examination with an appropriate clinician who has not previously examined the Veteran to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to his fear of hostile or terrorist activity. If the Veteran is diagnosed with a personality disorder and PTSD, then the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include his fear of hostile or terrorist activity. The examiner’s attention is invited to the October 2, 2014 VA treatment record in which a DSM-5 diagnosis of major depressive disorder was rendered. The examiner’s attention is invited to the July 2015 letter from the Veteran asserting varying mental health symptoms. 3. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician who has not previously examined the Veteran to determine the nature and etiology of any bilateral hearing loss disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including acoustic trauma. The examiner’s attention is invited to the medical treatise abstracts submitted by the Veteran’s counsel regarding cochlear damage and hearing loss. 4. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to coronary artery disease alone and discuss the effect of the Veteran’s coronary artery disease on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After, and only after, completion of steps one and two above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. If, and only if, the Veteran is diagnosed with an acquired psychiatric disorder, the examiner must opine as to whether it is at least as likely as not (1) proximately due to that acquired psychiatric disorder, or (2) aggravated beyond its natural progression by that acquired psychiatric disorder. The examiner’s attention is invited to the medical treatise abstracts submitted by the Veteran’s counsel regarding sleep apnea and mental health. 6. After, and only after, completion of steps one and two above, and if, and only if, the Veteran is diagnosed with an acquired psychiatric disorder, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to, proximately due to, or aggravated beyond its natural progression by that acquired psychiatric disorder. The examiner’s attention is invited to the medical treatise abstracts submitted by the Veteran’s counsel regarding hypertension and mental health. 7. After, and only after, completion of steps one and two above, and if, and only if, the Veteran is diagnosed with an acquired psychiatric disorder, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s GERD is at least as likely as not related to, proximately due to, or aggravated beyond its natural progression by that acquired psychiatric disorder. The examiner’s attention is invited to the medical treatise abstracts submitted by the Veteran’s counsel regarding GERD and mental health. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 8. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel