Citation Nr: 18144739 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-30 124 DATE: October 25, 2018 REMANDED Entitlement to compensation benefits for a low back disorder under 38 U.S.C. § 1151 and/or as secondary to service-connected left lower extremity sensory neuropathy and left groin pain is remanded. Entitlement to compensation benefits for a heart disorder, claimed as rapid heart rate due to pain, under 38 U.S.C. § 1151 and/or as secondary to service-connected left lower extremity sensory neuropathy and left groin pain is remanded is remanded. Entitlement to compensation benefits for a digestive disorder, claimed as hiatal hernia and gastroesophageal reflux disease (GERD), under 38 U.S.C. § 1151 and/or as secondary to service-connected left lower extremity sensory neuropathy and left groin pain is remanded. Entitlement to compensation benefits for erectile dysfunction under 38 U.S.C. § 1151 and/or as secondary to service-connected left lower extremity sensory neuropathy and left groin pain is remanded. Entitlement to compensation benefits for a genitourinary disorder, to include bladder and kidney disorders, under 38 U.S.C. § 1151 and/or as secondary to service-connected left lower extremity sensory neuropathy and left groin pain is remanded. Entitlement to compensation benefits for an acquired psychiatric disorder, claimed as stress and depression, under 38 U.S.C. § 1151 and/or as secondary to service-connected left lower extremity sensory neuropathy and left groin pain is remanded. Entitlement to an evaluation in excess of 20 percent for left groin pain as a result of VA urologic surgical treatment in April and May 1994 is remanded. Entitlement to an evaluation in excess of 20 percent for left lower extremity sensory neuropathy as a result of VA urologic surgical treatment in April and May 1994 is remanded. REASONS FOR REMAND The Veteran had active service from November 1974 to January 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in April 1998, March 2002, and January 2012. This case has a complex procedural background. The Veteran presented testimony at a personal hearing held at the RO in December 1995. During that hearing he discussed additional disabilities and symptoms he claimed were associated with his VA urologic surgical procedures in 1994 and that he was entitled to compensation under 38 U.S.C. § 1151 for back, bladder, abdominal, right kidney, and heart disabilities. Thereafter, in an October 1997 Board remand concerning other issues, the Board indicated that the Veteran should be afforded a VA examination by the appropriate specialist to determine whether the claimed back, bladder, abdominal, right kidney, and heart disabilities were as likely as not the result of VA medical or surgical treatment. In an April 1998 rating decision, the RO found that there was not a well-grounded claim for a separate compensable evaluation for groin pain or any other genitourinary disability, including right kidney, bladder, or upper and lower abdominal pain disorders, under the provisions of 38 U.S.C. § 1151. The RO further determined that there was not a well-grounded claim for compensation for chronic low back, and heart disabilities under the provisions of 38 U.S.C. § 1151. After notifying the Veteran of that rating decision in May 1998, the RO received a timely notice of disagreement (NOD) from the Veteran in June 1998 for those issues. The RO issued a statement of the case (SOC) dated on July 27, 1999, notifying the Veteran that he needed to file a timely formal appeal for those matters. The Veteran had 60 days from the July 27, 1999, SOC, to file a timely substantive appeal under VA regulations. 38 C.F.R. § 20.302(b). The Veteran did not file his substantive appeal until March 2000. He then challenged the timeliness of the March 2000 substantive appeal, filing an April 2000 NOD regarding that matter. The RO then issued an April 2000 SOC for the timeliness issue and received a substantive appeal from the Veteran in May 2000. In a March 2002 rating decision, the RO re-adjudicated under the Veterans Claims Assistance Act of 2000 (VCAA) and denied the claims for entitlement to compensation under 38 U.S.C. § 1151 for low back, heart, and genitourinary disabilities (including bladder, right kidney, and upper and lower abdominal pain conditions) as a result of VA urologic surgical treatment. The Veteran filed a statement in April 2002 that was noted to be accepted as an NOD with those denials. However, an additional handwritten note on that statement detailed that the RO deleted those 1151 appeals, as they were established in error. In a September 2002 decision, the Board found that a timely appeal was not filed by the Veteran regarding the issues of entitlement to compensation under the provisions of 38 U.S.C. § 1151. In December 2002, the Veteran filed a motion for reconsideration regarding the September 2002 Board decision addressing timeliness of the appeal. In February 2003, the Board denied the Veteran’s motion for reconsideration. In July 2010, the Veteran filed increased rating claims for his service-connected left lower extremity sensory neuropathy and left groin pain disabilities as well as 1151 claims for erectile dysfunction and an acquired psychiatric disorder. He further sought to reopen his 1151 claims for low back, heart, digestive, and genitourinary disorders. In a January 2012 rating decision, the RO continued the previously assigned 20 percent evaluations for the Veteran’s service-connected left lower extremity sensory neuropathy and left groin pain disabilities as well as denied compensation under 38 U.S.C. § 1151 for hiatal hernia, GERD, stress, depression, and erectile dysfunction. It also denied reopening the Veteran’s 1151 claims for genitourinary (including bladder, right kidney, and upper and lower abdominal pain conditions), low back, and heart disorders on the basis that no new and material evidence was received. Although the RO denied reopening the Veteran’s 1151 claims for genitourinary, low back, and heart disorders on the basis that no new and material evidence was received, the Board observes that in the April 1998 and March 2002 rating decisions discussed above, the RO first denied 1151 claims for those disorders on the basis that the claims were not well-grounded under the law then in effect and then later re-adjudicated those claims under the VCAA. Section 7 of the VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099, provides that if a claim that was denied as not well-grounded became final between July 14, 1999, and November 9, 2000, it may be re-adjudicated under the VCAA “as if the denial or dismissal had not been made,” provided a timely request is filed by the claimant or on the Secretary’s own motion. See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1343-44 (Fed. Cir. 2003). Here, in the March 2002 rating decision, the Veteran’s claims were re-adjudicated by the RO under the VCAA. Thus, as a matter of law, the April 1998 rating decision was erased and the Veteran’s 1151 claims for low back, heart, digestive, and genitourinary disorders have remained open since he first discussed these matters during the December 1995 RO hearing. Based on the foregoing discussion, the Board has recharacterized the Veteran’s 1151/secondary service connection claims as shown on the title page. In written statements of record, the Veteran and his representative have essentially asserted that the service-connected left lower extremity sensory neuropathy and left groin pain disabilities have increased in severity since the Veteran was last examined by VA in August 2010, an examination he contended was inadequate for rating purposes. In a May 2018 statement, the Veteran was noted to assert that his service-connected disabilities were more disabling than the current evaluations reflected. It was further indicated that consideration should be given to obtaining updated medical records and current VA examinations. Thus, the Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of his service-connected left lower extremity sensory neuropathy and left groin pain. In addition, the Veteran contends that he has additional disabilities, including heart, digestive, low back, genitourinary, erectile dysfunction, and acquired psychiatric disorders, as a result of VA surgical treatment in April and May 1994 at Phoenix VAMC. The Board will not proceed with final adjudication of the 1151/secondary service connection claims until competent VA medical opinions are provided, in order to clarify the etiology of the Veteran’s claimed heart, digestive, low back, genitourinary, erectile dysfunction, and acquired psychiatric disorders on appeal. Finally, evidence of record also reflects that the Veteran receives VA medical treatment for his service-connected left lower extremity sensory neuropathy and left groin pain as well as his claimed heart, digestive, low back, genitourinary, erectile dysfunction, and acquired psychiatric disorders from the Phoenix VAMC and Thunderbird VA CBOC. Updated VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Send the Veteran a VCAA notice letter that provides notice as to the information and evidence that is required to substantiate the claims for compensation under 38 U.S.C. § 1151 filed BEFORE and AFTER the amended regulations became effective October 1, 1997, as the Veteran’s pending 1151 claims for heart, digestive, low back, and genitourinary disorders date back to December 1995 and the pending 1151 claims for erectile dysfunction and acquired psychiatric disorders were filed in July 2010. See 38 C.F.R. §§ 3.358 and § 3.361 (2017). 2. Obtain updated treatment records pertaining to the Veteran’s service-connected left lower extremity sensory neuropathy and left groin pain as well as his claimed heart, digestive, low back, genitourinary, erectile dysfunction, and acquired psychiatric disorders from the Phoenix VAMC and Thunderbird VA CBOC for the time period from June 2015 to the present. 3. Schedule the Veteran for an examination(s) by an appropriate clinician to determine the current severity of his service-connected left lower extremity sensory neuropathy and left groin pain. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities 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 left lower extremity sensory neuropathy and left groin pain alone and discuss the effect of the Veteran’s left lower extremity sensory neuropathy and left groin pain 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). 4. Obtain a VA medical opinion(s) to clarify the etiology of the Veteran’s claimed heart, digestive, low back, and genitourinary disorders from an appropriate examiner(s). If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed. Based on a review of the evidence of record and with consideration of the Veteran’s statements, the examiner must provide an opinion as to whether any previously or currently diagnosed heart, digestive, low back, or genitourinary disorder was caused or aggravated (permanently worsened) by the Veteran’s service-connected left lower extremity sensory neuropathy or left groin pain. For any identified diagnosed heart, digestive, low back, or genitourinary disorder, provide an opinion addressing whether such is an additional disability due to VA surgical treatment at the Phoenix VAMC in April and May 1994. The examiner should then indicate whether there is evidence of any additional heart, digestive, low back, or genitourinary disability resulting from a disease or injury, or aggravation of an existing disease or injury, suffered as a result of hospitalization, medical or surgical treatment, or examination of the Veteran, during the period of VA treatment and urologic surgery from April to May 1994. This opinion should be provided without regard to whether there is evidence of fault on the part of VA. Compensation is precluded where disability: (1) is not causally related to VA hospitalization or medical or surgical treatment; or (2) is merely coincidental with the VA hospitalization or medical or surgical treatment; or (3) is the continuance or natural progress of diseases or injuries for which VA hospitalization or medical or surgical treatment was authorized; or (4) is the certain or near certain result of the VA hospitalization or medical or surgical treatment. In doing so, the examiner should acknowledge and discuss the post-service VA treatment records as well as the VA examination reports dated from 1994 to 2010. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2017). 5. Obtain a VA medical opinion(s) to clarify the etiology of the Veteran’s claimed erectile dysfunction and acquired psychiatric disorders from an appropriate examiner(s). If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed. Based on a review of the evidence of record and with consideration of the Veteran’s statements, the examiner must provide an opinion as to whether any previously or currently diagnosed erectile dysfunction and/or acquired psychiatric disorder was caused or aggravated (permanently worsened) by the Veteran’s service-connected left lower extremity sensory neuropathy or left groin pain. For any identified erectile dysfunction or acquired psychiatric disorder, provide an opinion addressing whether such is an additional disability due to VA surgical treatment at the Phoenix VAMC in April and May 1994. If so, is the additional disability proximately caused by: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in treating the Veteran in April and May 1994; and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider OR did VA furnish surgical treatment in April and May 1994 without the Veteran’s informed consent? OR (2) Was the additional disability proximately caused by an event not reasonably foreseeable? (The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32) In doing so, the examiner should acknowledge and discuss the post-service VA treatment records as well as the August 2010 VA examination report. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2017). 6. After completing the above actions, and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the June 2015 SOC as well as using the applicable regulation set forth at 38 C.F.R. § 3.358 (2017) (for 38 U.S.C. § 1151 claims received by VA before October 1, 1997) for the claimed heart, digestive, low back, and genitourinary disabilities and set forth at 38 C.F.R. § 3.361 (2017) (for 38 U.S.C. § 1151 claims received by VA after October 1, 1997) for the claimed erectile dysfunction and acquired psychiatric disabilities. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. D. Deane, Counsel