Citation Nr: 18142936 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-12 317 DATE: October 17, 2018 ORDER The application to reopen the claim for service connection for gastroesophageal reflux (GERD) is granted. REMANDED Entitlement to service connection for a thyroid disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for cataracts, to include as due to radiation exposure is remanded. Entitlement to service connection for hepatitis B is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. FINDINGS OF FACT 1. A September 1986 rating decision denied service connection for a gastrointestinal condition. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the September 1986 rating decision denying service connection for a gastrointestinal condition, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The September 1986 rating decision is final. 38 U.S.C. §§ 5108 (1980), 7105; 38 C.F.R. §§ 20.302, 20.1103 (1986). 2. New and material evidence sufficient to reopen the claim of service connection for gastroesophageal reflux has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1976 to March 1982. The Veteran testified at a video conference hearing in May 2018. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The Veteran asserts that his GERD manifested in-service and is related to his in-service fall and injury. The Board finds new and material evidence sufficient to reopen the claim of service connection for gastroesophageal reflux has been received. The regional office (RO) denied service connection for a gastrointestinal condition, finding that the Veteran’s GERD was not shown to have been incurred in or aggravated by active service in a September 1986 rating decision. The Veteran was notified of the decision and his appellate rights in September 1986. The Veteran did not appeal the decision or submit additional evidence within the applicable time period. Therefore, the September 1986 decision became final. 38 U.S.C. §7105; 38 C.F.R. §§ 20.302, 20.1103. In September 1986, the record consisted of service treatment records, a VA examination and statements from the Veteran. The evidence failed to show a gastrointestinal disability was incurred in or attributable to service. Evidence associated since the rating decision includes additional VA and private treatment records, a VA and private examination, hearing testimony and the Veteran’s and associated lay statements regarding his in-service symptoms and accident. The Veteran’s statements and treatment records are new, not cumulative, indicate a current disability, ongoing symptomology and a potential relationship to service. As such new and material evidence sufficient to reopen the claim of service connection for gastroesophageal reflux has been received. The evidence provided addresses the previous unestablished facts of an in-service manifestation and a potential relationship to service. It is not redundant. Therefore, reopening of the claim for service connection for a gastroesophageal reflux is warranted. REASONS FOR REMAND The Veteran initially submitted a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). The Board notes that, particularly with respect to psychiatric disorders, a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). In light of Clemons, the Board has recharacterized the issue, as reflected on the title page, to include a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 1. Entitlement to service connection for a thyroid disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. First, relevant to all remanded claims, evidence indicates that there may be outstanding relevant VA treatment records and as such a remand is warranted. At the May 2018 hearing the Veteran reported he was treated and prescribed medication at a VA Medical Center and has continued to receive VA treatment for the disabilities on appeal. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain such. The current file of service treatment records is very limited in view of the Veteran’s reports of duties involving nuclear weapons, possible radiation exposure, and screening in the Personnel Reliability Program. In addition, the Board cannot make a fully-informed decision on the issue of service connection for a right shoulder disability because no VA examiner has opined as to direct service connection. A June 2018 private opinion noted arthritis and tendonitis of the right shoulder. The examiner found it was more likely than not that the Veteran had a significant musculoskeletal injury from an in-service fall which resulted in his current right shoulder disability. However, it is unclear if the Veteran’s diagnosis of arthritis has been established by X-ray findings as required by VA regulations. As such a remand is warranted. 3. Entitlement to service connection for a low back disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a low back disability because no VA examiner has opined whether direct service connection is warranted. In May 2018 the Veteran testified to ongoing low back pain and stiffness since his in-service injury and fall from a howitzer. A June 2018 private opinion noted a lumbosacral strain. The examiner found it was more likely than not that the Veteran had a significant musculoskeletal injury from an in-service fall which resulted in his current lumbar spine disability. However, it is unclear if the Veteran’s diagnosis of arthritis has been established by X-ray findings as required by VA regulations. As such a remand is warranted. 4. Entitlement to service connection for a neck disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a neck disability because no VA examiner has opined whether direct service connection is warranted. In May 2018 the Veteran testified to ongoing pain, stiffness and headaches since his in-service injury and fall from a howitzer. A June 2018 private opinion noted a cervical strain. The examiner found it was more likely than not that the Veteran had a significant musculoskeletal injury from an in-service fall which resulted in his current cervical spine disability. However, it is unclear if the Veteran’s diagnosis of arthritis has been established by X-ray findings as required by VA regulations. As such a remand is warranted. 5. Entitlement to service connection for a left foot disability is remanded. 6. Entitlement to service connection for a right foot disability is remanded. The Board cannot make a fully-informed decision on the issues of service connection for a right and left foot disability because no VA examiner has opined as to direct service connection. At the May 2018 hearing the Veteran testified to being treated for ongoing pain, swelling, numbness and arthritis in his feet. A June 2018 private opinion noted bilateral plantar fascitis. The examiner noted the Veteran’s in-service competitive marches and ongoing pain in his feet. The examiner found it was more likely than not that standing in combat boots and forced marches while stationed in Germany caused a straining of the plantar and fascia tendon in his feet and the subsequent development of calcaneal spurs and plantar fascitis. However, the examiner failed to provide a thorough rationale for this opinion. As such a remand is warranted. 7. Entitlement to service connection for cataracts, to include as due to radiation exposure is remanded. The Veteran contends service connection is warranted for cataracts, to include as due to radiation exposure. The record does not contain sufficient evidence regarding the Veteran’s asserted radiation exposure. Medical records show the Veteran has been diagnosed with nuclear sclerotic cataracts. While the Veteran’s claimed eye disability is not a radiogenic disease, the Veteran submitted evidence indicating that it could possibly be radiogenic in origin. Accordingly, VA should develop the Veteran’s claim as directed under 38 C.F.R. § 3.311. As such a remand is warranted for additional development. 8. Entitlement to service connection for hepatitis B is remanded. The Board cannot make a fully-informed decision on the issue of service connection for hepatitis B because no VA examiner has opined whether direct service connection is warranted. In May 2018 testimony the Veteran reported undergoing treatment for hepatitis B through VA. Records of Army hospital care in December 1981 do show blood transfusions in the context of care for a gastrointestinal bleed. In addition, a June 2018 private opinion noted the physician found it was more likely than not that the blood transfusions in service caused the Veteran to develop hepatitis B and while hospitalized in-service he developed jaundice and his hepatitis B which should be service connected. However, it is unclear if the Veteran has a current diagnosis of hepatitis B, and whether such diagnosis is a result of a blood test. As such a remand is warranted. 9. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. The VA examination in June 2014 found that it was less likely than not that the Veteran’s current stomach disability was related to an acute gastrointestinal bleed in-service as GERD is not a usual etiology of an acute gastrointestinal bleed. However, the examiner failed to address the Veteran’s statements regarding his in-service accident and subsequent development of a GI bleed and in-service symptomatology. Notably, the file contains records of Army hospital care for a GI bleed in December 1981 but the records do not mention a traumatic fall from a howitzer. At the May 2018 hearing the Veteran testified to ongoing digestive problems since service including vomiting, regurgitation, acid reflux and discomfort which he has had since his in-service fall from a howitzer. A June 2018 private opinion associated with the claims file noted gastroesophageal reflux disease and that it was more likely than not that such was due to and a consequence of the Veteran’s service. A supplemental VA examination is warranted to address the private opinion of record and whether direct service connection is warranted. As such a remand is warranted. 10. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. A November 2013 private Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire noted a diagnosis of PTSD and major depressive disorder. The examiner noted that the Veteran has suffered from these psychiatric illnesses for 32 years. The examiner did not note the reported stressors which contributed to the Veteran’s diagnosis of PTSD. During the course of this appeal, effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran’s claim was certified to the Board in April 2018 (after August 4, 2014) a diagnosis of an acquired psychiatric disorder must conform to DSM-V. See 38 C.F.R. § 4.125(a) (2017). As the November 2013 private examination was based on the DSM-IV criteria, an updated examination using the appropriate criteria must be conducted. As such the Board finds that a supplemental VA examination is warranted to address the Veteran’s VA treatment records and current manifestations under the appropriate DSM-V diagnostic criteria and to fully address direct service connection. In addition, evidence has been associated with the claims file regarding the Veteran’s reported in-service stressors and additional development is warranted. During the May 2018 hearing, the Veteran reported in-service stressors involving the death of fellow service members in a voltage accident and an accident where a vehicle in the Veteran’s convoy ran over civilians. In addition, the Veteran has provided additional statements from fellow service members and details. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressors. As such a remand is warranted The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from 1982 forward. 2. Make an additional request for a complete file of service treatment records that may contain records of radiation exposure and treatment following significant traumatic accidents. 3. Attempt to corroborate the Veteran’s in-service stressors, including the death of fellow service members in a voltage accident and an accident where a vehicle in the Veteran’s convoy ran over civilians If more details are needed, contact the Veteran to request the information. 4. Develop the Veteran’s assertion that he was exposed to radiation from duties stationed in Germany from October 1978 to March 1982 while he contends working at special weapons/nuclear weapons area as part of the personnel reliability program (PRP). If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion. If more details are needed, contact the Veteran to request the information. 5. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorders to include posttraumatic stress disorder (PTSD) and major depressive disorder. (a.) Identify all current acquired psychiatric disorders under DSM-V criteria. (b.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s acquired psychiatric disorder is related to an in-service injury, event or disease? If PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should provide an opinion as to whether the Veteran’s diagnosis of PTSD is supportable solely by the stressor(s) that has (have) been verified or established in the record. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disability. The examiner must opine whether: (a.) Identify any right shoulder disabilities. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right shoulder disability is related to an in-service injury, event, or disease, including his fall from a howitzer? (c.) If a diagnosis of arthritis is found, is it at least as likely as not that the Veteran’s arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. A June 2018 private opinion noted arthritis and tendonitis of the right shoulder. The examiner found it was more likely than not that the Veteran had a significant musculoskeletal injury from an in-service fall which resulted in his current right shoulder disability. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck and low back disabilities. The examiner must opine whether: (a.) Identify any neck disabilities. (b.) Identify any low back disabilities. (c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s neck disability is related to an in-service injury, event, or disease, including his fall from a howitzer? (d.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s low back disability is related to an in-service injury, event, or disease, including his fall from a howitzer? (e.) If a diagnosis of arthritis is found, is it at least as likely as not that the Veteran’s arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In May 2018 the Veteran testified to ongoing pain and stiffness of his neck and low back and headaches since his in-service injury and fall from a howitzer. A June 2018 private opinion noted a cervical strain. The examiner found it was more likely than not that the Veteran had a significant musculoskeletal injury from an in-service fall which resulted in his current cervical spine disability. The private opinion also noted a lumbosacral strain. The examiner found it was more likely than not that the Veteran had a significant musculoskeletal injury from an in-service fall which resulted in his current lumbar spine disability. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right and left foot disabilities. The examiner must opine whether: (a.) Identify any right and left foot disabilities. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral foot disability is related to an in-service injury, event, or disease, including his fall from a howitzer? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the June 2018 private opinion which noted bilateral plantar fascitis. The examiner noted the Veteran’s in-service competitive marches and ongoing pain in his feet. The examiner found it was more likely than not that standing in combat boots and forced marches while stationed in Germany caused a straining of the plantar and fascia and tendon in his feet and the subsequent development of calcaneal spurs and plantar fascitis. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hepatitis B. The examiner must opine whether: (a.) Does the Veteran currently have hepatitis B? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s hepatitis B is related to an in-service injury, event, or disease, including an in-service transfusion? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. A June 2018 private opinion noted it was more likely than not that the blood transfusions in service caused the Veteran to develop Hepatitis B and while hospitalized in-service he developed jaundice and his Hepatitis B should be service connected. 10. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s GERD is at least as likely as not related to an in-service injury, event, or disease, including his fall from a howitzer. (Continued on the next page)   Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran’s May 2018 testimony noting ongoing symptoms of GERD and digestive symptoms including vomiting, regurgitation, acid reflux and discomfort since his in-service fall. A VA examination in June 2014 found that it was less likely than not that the Veteran’s current stomach disability was related to an acute gastrointestinal bleed in-service as GERD is not a usual etiology of an acute gastrointestinal bleed. A June 2018 private opinion noted gastroesophageal reflux disease and that it was more likely than not that such was due to and a consequence of the Veteran’s service. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian