Citation Nr: 18144428 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-22 559 DATE: October 24, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for a back condition is denied. The application to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss is denied. The application to reopen the previously denied claim of entitlement to service connection for status post myocardial infarction with coronary artery disease (CAD), also claimed as a heart condition, is denied. REMANDED The issues of (1) entitlement to service connection for the residuals of a stroke; (2) entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, or adjustment disorder; and (3) entitlement to a total disability rating based on individual unemployability (TDIU) are remanded. VETERAN’S CONTENTIONS The Veteran contends that he currently suffers from a back condition, hearing loss, and a heart condition due to his active duty military service. FINDINGS OF FACT 1. In a March 2003 rating decision, the RO denied claims for service connection for a back condition and left ear hearing loss. Thereafter, in an October 2010 rating decision, the RO denied the issue of service connection for bilateral hearing loss. Evidence received since the March 2003 and October 2010 rating decisions does not relate to prior unestablished facts. 2. The claim for service connection for myocardial infarction with CAD was initially denied in a November 1997 rating decision. The issue was most recently denied in an October 2014 Board of Veterans’ Appeals (Board) decision. Evidence received since the October 2014 Board decision does not relate to prior unestablished facts. CONCLUSIONS OF LAW 1. The March 2003 rating decision is final; new and material evidence has not been received to reopen the claim of entitlement to service connection for a back condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The October 2010 rating decision is final; new and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 3. The April 2014 Board decision is final; new and material evidence has not been received to reopen the claim of entitlement to service connection for status post myocardial infarction with CAD. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1103, 20.1104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to August 1976 and from September 1990 to July 1991, including service in the Southwest Asia theater of operations. These matters come before the Board on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. New and Material Evidence In a March 2003 rating decision, the RO denied the issues of entitlement to service connection for a back disability and left ear hearing loss. In denying both issues, the RO indicated that there was no evidence that either disability had a nexus to service or that either disability was diagnosed to a compensable degree within one year following discharge from service. The RO notified the Veteran of this rating decision via letter that month and he neither appealed nor submitted any evidence within one year of notification. Accordingly, the March 2003 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thereafter, the Veteran submitted another claim for service connection for bilateral hearing loss and, via an October 2010 rating decision, the RO denied service connection—again citing a lack of a nexus to service and that the hearing loss did not manifest to a compensable degree within one year following discharge. The Veteran was notified of this decision via letter in October 2010. Again, he neither appealed nor submitted any evidence within one year of notification. As such, it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Relatedly, the issue of service connection for myocardial infarction with CAD was initially denied in a November 1997 rating decision. The stated reason for denial was, again, no nexus to service and that the Veteran’s heart condition did not manifest to a compensable degree within one year following discharge The RO notified the Veteran of this rating decision via letter that month and he neither appealed nor submitted any evidence within one year of notification. Accordingly, the November 1997 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thereafter, the Veteran submitted several claims to reopen the issue of service connection for a myocardial infarction with CAD. Most recently this issue was addressed by the Board in October 2014 wherein it declined to reopen the issue as it found submitted materials to be redundant and lacking in demonstrating a nexus to service. Generally, Board decisions are final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). Additionally, the Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims (Court). Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. Evidence is “new” if it was not previously submitted to agency decision makers. Evidence is “material” if, when viewed by itself or with other evidence previously of record, it relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regarding his back condition, since the March 2003 rating decision, the Veteran submitted VA treatment records, private treatment records, lay statements, and argumentation by his representative. This evidence is “new”—i.e., materials not previously submitted to agency decision makers—but it is not material. The fact and circumstances of the Veteran’s service in Southwest Asia was previously known by agency decision makers. None of the new evidence submitted was material to the issue of demonstrating a possible link between a current back disability and service. Relatedly, regarding the issue of bilateral hearing loss, since the October 2010 decision, the Board has received VA treatment records, lay statements, and argumentation by the Veteran’s representative. Similar to the issue of a back condition, this evidence is new but it is not material. Specifically, the new evidence submitted does not demonstrate a possible link between service and current hearing loss. Lastly, regarding a myocardial infarction with CAD, the Board has received VA treatment records, lay statements, and argumentation by the Veteran’s representative. This evidence is also new but not material in that it does not demonstrate a possible link between service and the Veteran’s myocardial infarction and CAD. As such, these issues must not be reopened and, accordingly, the Veteran’s appeal is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). REASONS FOR REMAND 1. Service Connection for Residuals of a Stroke In a May 2013 VA treatment record, the clinician noted that the Veteran was hospitalized for a cerebrovascular accident in February 2013 at Baptist Health. Currently, the Veteran’s claims file contains treatment records from Baptist Memorial Hospital from January 1996, February 1996, and September 2001. However, treatment records from February 2013 are not associated with the claims file. As such, a remand is required to allow VA to obtain authorization and request these records. Additionally, the Veteran has not yet been afforded a VA examination and medical opinion regarding the nature and etiology of his stroke, including whether it was caused by his in-service experience in Southwest Asia. Accordingly, a VA examination and medical opinion should also be obtained on remand. 2. Service Connection for an Acquired Psychiatric Disorder and Entitlement to a TDIU In January 2015, a VA examiner diagnosed the Veteran with adjustment disorder with depressed mood due to the limitations of stroke. As the Board is remanding the issue of service connection for stroke, it must also remand the issue of service connection for an acquired psychiatric disorder as it is inextricably intertwined. Relatedly, the issue of entitlement to a TDIU is also dependent upon the outcome of the issues of service connection for stroke and an acquired psychiatric disorder. Where a pending claim is inextricably intertwined with a claim currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since April 2017. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. Ask the Veteran to complete a VA Form 21-4142 for Baptist Memorial Hospital, particularly for records dated in the year 2013 and onward regarding treatment for a stroke. Make two requests for the authorized records from Baptist Memorial Hospital unless it is clear after the first request that a second request would be futile. 3. After the above has been completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his stroke. After examining the Veteran and thoroughly reviewing the Veteran’s claims file, the clinician must opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s stroke was caused by or related to service, including his exposure to environmental hazards in Southwest Asia. In offering the requested opinion, the clinician must consider medical and lay evidence dated both prior to and since the filing of the claim (May 2013). Additionally, the clinician should provide a complete rationale for the requested opinion. If the clinician cannot provide an opinion without resorting to speculation, he or she should expressly indicate that and provide a supporting rationale as to why that is so. (Signature on Next Page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel