Citation Nr: 18145646 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-43 310 DATE: October 29, 2018 ORDER The previously denied claim of entitlement to service connection for cervical spine condition is reopened. The previously denied claim of entitlement to service connection for hypertension is reopened. The previously denied claim of entitlement to service connection for degenerative bones is reopened. The previously denied claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is reopened. The previously denied claim of entitlement to service connection for prostate problems is reopened. The previously denied claim of entitlement to service connection for depression is reopened. REMANDED Entitlement to service connection for cervical spine condition is remanded. Entitlement to service connection for thoracolumbar spine condition (claimed as degenerative bones) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for GERD is remanded. Entitlement to service connection for an acquired psychiatric disorder (claimed as depression) is remanded. Entitlement to service connection for prostate problems is remanded. Entitlement to service connection for teeth and mouth problems is remanded. Entitlement to service connection for dental treatment purposes for teeth loss is remanded. FINDINGS OF FACT 1. By a final May 1997 rating decision, the Regional Office (RO) denied service connection for cervical spine condition. 2. Additional evidence received since the RO’s May 1997 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. By a final September 2003 rating decision, the RO continued the denial of service connection for hypertension because no new and material evidence was submitted. 4. Additional evidence received since the RO’s September 2003 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 5. By a final November 2004 rating decision, the RO denied the Veteran’s claims for service connection for degenerative bones, prostate problems, depression, and GERD. 6. Additional evidence received since the RO’s November 2004 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The RO’s May 1997 rating decision that denied service connection for cervical spine condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The RO’s September 2003 rating decision that continued the denial of service connection for hypertension because no new and material evidence was submitted is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.32, 20.200, 20.201, 20.302, 20.1103. 3. The RO’s November 2004 rating decision that denied service connection for degenerative bones, prostate problems, depression, and GERD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 4. New and material evidence has been received to reopen the Veteran’s claims for service connection for cervical spine condition, hypertension, degenerative bones, prostate problems, depression, and GERD. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.303, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1971. The Board expanded the claim for service connection for an acquired psychiatric disorder, as reflected above, in light of the evidence in the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). 1. The previously denied claim of entitlement to service connection for cervical spine condition is reopened. 2. The previously denied claim of entitlement to service connection for hypertension is reopened. 3. The previously denied claim of entitlement to service connection for degenerative bones is reopened. 4. The previously denied claim of entitlement to service connection for GERD is reopened. 5. The previously denied claim of entitlement to service connection for prostate problems is reopened. 6. The previously denied claim of entitlement to service connection for depression is reopened. In a May 1997 rating decision, the RO denied service connection for cervical spine condition on the basis that there was no connection to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In a September 2003 rating decision, the RO continued the denial of service connection for hypertension because no new and material evidence was submitted. The Board notes that the claim for service connection for hypertension was previously denied in May 1997 on the basis that there was no connection to service. The Veteran filed a notice of disagreement with the September 2003 rating decision, and a statement of the case was issued in November 2004. A timely substantive appeal with respect to the September 2003 rating decision was not received. Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case has been furnished to an appellant. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date of mailing of a statement of the case, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Here, the Veteran did not properly perfect his appeal, and the September 2003 decision became final. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In a November 2004 rating decision, the RO denied service connection for degenerative bones, prostate problems, depression, and GERD in part on the basis that there was no connection to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claims may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the RO’s May 1997, September 2003, and November 2004 rating decisions includes the Veteran’s April 2018 Board hearing testimony providing additional information about his in-service car accident and subsequent back and neck problems, explaining that he experienced dizziness during service and believes this is connected to his current hypertension, reporting that he experienced depression during service, explaining that he had the same symptoms in service that he currently experiences with his GERD and that he did not seek further treatment after the October 1968 treatment because he learned to live with it, and explaining that he believes his in-service hemorrhoids and the subsequent swelling caused his current prostate problems. This evidence was not before adjudicators when the Veteran’s claims were last finally denied, and it is not cumulative or redundant of the evidence of record at the time of those decisions. The new evidence relates to unestablished facts necessary to substantiate the claims for service connection for cervical spine condition, hypertension, degenerative bones, prostate problems, depression, and GERD, and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for cervical spine condition is remanded. 2. Entitlement to service connection for thoracolumbar spine condition (claimed as degenerative bones) is remanded. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for GERD is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder (claimed as depression) is remanded. 6. Entitlement to service connection for prostate problems is remanded. 7. Entitlement to service connection for teeth and mouth problems is remanded. 8. Entitlement to service connection for dental treatment purposes for teeth loss is remanded. The Veteran asserts that his current neck and back problems are related to an in-service accident when he was driving a car and a trolley ran over the car. He reported that the trolley hit the driver’s side of the vehicle he was driving. He reported that he was taken to the hospital in Nurnberg, Germany, and braced up, and taken to the base the next morning. He reported that his neck and spine were never the same, that his problems worsened over the years, and that he eventually sought formal treatment around 1988. A November 2007 VA examination relating to the Veteran’s aid and attendance claim notes that the Veteran reported neck pain with an onset in 1969, and that the Veteran’s neck was injured during the in-service accident. However, the VA examiner did not review the Veteran’s service treatment records, and the notation appears to be based solely on the Veteran’s reports. The Veteran also asserts that his spine disabilities are secondary to his hypertension. See June 2004 Claim. Remand is appropriate to obtain VA medical opinion regarding whether the Veteran’s current neck and back disabilities had an onset in service or are related to service, or are secondary to his hypertension. As to his hypertension claim, the Veteran has a current diagnosis of hypertension and asserts that his current condition is related to dizziness symptoms he reported that he experienced during service. The Veteran also asserts that stress from service caused his hypertension. See June 2009 Veteran’s Statement. As to GERD, the Veteran reported that he experienced symptoms in service similar to his current GERD symptoms, including cough and vomit or mucous in the mouth. The Veteran’s service treatment records show October 1968 treatment for acid indigestion. He reported that he did not seek additional formal treatment in service because he would be sent to sick call and given chewable medication. He reported that he just learned to live with it, and that he did not have time to seek formal treatment after service. He believes he might have self-treated before eventually seeking formal treatment. The Veteran also asserts that stress from service caused his GERD. See June 2009 Veteran’s Statement. As to his psychiatric claim, the Veteran reported that he was depressed during service in Fort Polk, Louisiana, and that he was upset when he was on alert and untrained relating to activity happening at the time in Yugoslavia. The Veteran’s VA and private treatment records contain notations of anxiety, depression, and affective disorder. As to his prostate problems, the Veteran asserts that he had hemorrhoids during service and that swelling from the hemorrhoids pushed up against his prostate leading to his current prostate problems. The Veteran’s service treatment records do not show treatment for hemorrhoids. The Veteran’s service treatment records show treatment for symptoms of pyuria, dysuria, and infections. See, e.g., December 1969 and January 1970 STRs. The Veteran has a diagnosis of benign prostate hypertrophy and prostatitis. As to teeth and mouth problems, the Veteran reported that he received injuries to his teeth from playing basketball during service. He reported that he was hit in the mouth during basketball several times, that his teeth were loosened from such injuries, and that the teeth were ultimately removed. The Veteran’s service treatment records show that several teeth were extracted during service. The Veteran also asserts that his spine disabilities, depression, GERD, and prostate problems are secondary to his hypertension. See June 2004 Claim. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for hypertension, GERD, prostate problems, acquired psychiatric disability, and teeth and mouth problems because no VA examiner has opined whether these conditions are related to service. In addition, the Veteran reported treatment at a hospital in Germany following his in-service car accident (which the Veteran believed occurred in September or October 1970) and the service treatment records note July 1970 treatment for a car accident at the U.S. Army Hospital in Nurnberg, Germany. It does not appear that the RO conducted a search for additional records from the U.S. Army Hospital in Nurnberg, Germany. Accordingly, remand is necessary for the RO to take appropriate steps to obtain such records. The Board notes that the Veteran’s claims file contains VA treatment records from August 2002 to June 2003, from June 2006 to October 2014, and from February 2016 to June 2017. The Veteran reported dental treatment through VA in 1971, and it appears from the claims file that such treatment was in March 1971. While this matter is on remand, any outstanding private and VA treatment records should be obtained, to include the 1971 dental treatment and any VA treatment records prior to August 2002, from June 2003 to June 2006, from October 2014 to February 2016, and from June 2017 to the present. Moreover, it appears the Veteran may have been receiving disability benefits from the Social Security Administration (SSA). A print screen in the Veteran’s file shows a disability onset date of February 1990 and a date of initial entitlement of November 2009. In a June 2009 statement, the Veteran indicated that he was declared disabled in 1993 but did not receive benefits. As SSA disability materials may be relevant to the Veteran’s service connection claims, remand is appropriate to obtain the complete medical and administrative records related to any application for SSA disability benefits. 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). The matters are REMANDED for the following action: 1. Take appropriate steps to obtain the Veteran’s in-service treatment records from the U.S. Army Hospital in Nurnberg, Germany. 2. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. 3. Obtain outstanding VA treatment records, to include the 1971 dental treatment and any VA treatment records prior to August 2002, from June 2003 to June 2006, from October 2014 to February 2016, and from June 2017 to the present. 4. Contact SSA and request the Veteran’s complete SSA records, including any administrative decisions on any application for disability benefits and all underlying medical records which are in SSA’s possession. A copy of any requests sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 5. After obtaining any outstanding records, ask the appropriate orthopedic examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any current thoracolumbar and cervical spine disability the Veteran has presented during the claim period (from June 2008 to the present). For each diagnosis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; or (c) is caused by or aggravated by his hypertension. For arthritis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested to a compensable degree within a year of separation from service (by February 1972). The examiner should consider all medical and lay evidence of record. The Veteran asserts that his current neck and back problems are related to an in-service accident when he was driving a car and a trolley ran over the car. He reported that the trolley hit the driver’s side of the vehicle he was driving. He reported that he was taken to the hospital in Nurnberg, Germany, and braced up, and taken to the base the next morning. He reported that his neck and spine were never the same, that his problems worsened over the years, and that he eventually sought formal treatment around 1988. A November 2007 VA examination relating to the Veteran’s aid and attendance claim notes that the Veteran reported neck pain with an onset in 1969, and that the Veteran’s neck was injured during the in-service accident. A July 1970 service treatment record shows the Veteran was in a car accident during service. An April 1969 service treatment record shows treatment for a stiff neck. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). A complete rationale should be given for all opinions and conclusions expressed. 6. After obtaining any outstanding records, ask the appropriate examiner (for hypertension) to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether the Veteran’s hypertension at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b) manifested to a compensable degree within a year of separation from service (by February 1972); or (c) is otherwise related to an in-service injury, event, or disease. The examiner should consider all medical and lay evidence of record. The Veteran asserts that his hypertension is related to dizziness symptoms he reported that he experienced during service. The Veteran also asserts that stress from service caused his hypertension. See June 2009 Veteran’s Statement. A complete rationale should be given for all opinions and conclusions expressed. 7. After obtaining any outstanding records, ask the appropriate examiner (for GERD) to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether the Veteran’s GERD at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; or (c) is caused by or aggravated by his hypertension. The examiner should consider all medical and lay evidence of record. The Veteran reported that he experienced symptoms in service similar to his current GERD symptoms, including cough and vomit or mucous in the mouth. The Veteran’s service treatment records show October 1968 treatment for acid indigestion. He reported that he did not seek additional formal treatment in service because he would be sent to sick call and given chewable medication. He reported that he just learned to live with it, and that he did not have time to seek formal treatment after service. He believes he might have self-treated before eventually seeking formal treatment. The Veteran also asserts that stress from service caused his GERD. See June 2009 Veteran’s Statement. A complete rationale should be given for all opinions and conclusions expressed. 8. After obtaining any outstanding records, ask the appropriate psychiatric examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any acquired psychiatric disorders the Veteran has presented during the claim period (from June 2008 to the present). For each diagnosis, the examiner should opine as to whether the disorder at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; or (c) is caused by or aggravated by his hypertension. For any diagnosis of substance abuse disorder, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is caused by or aggravated by a psychiatric disorder. The examiner should consider all medical and lay evidence of record. The Veteran reported that he was depressed during service in Fort Polk, Louisiana, and that he was upset when he was on alert and untrained relating to activity happening at the time in Yugoslavia. A complete rationale should be given for all opinions and conclusions expressed. 9. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any prostate conditions the Veteran has presented during the claim period (from June 2008 to the present), to include benign prostate hypertrophy and prostatitis. For each diagnosis, the examiner should opine as to whether the disorder at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; or (c) is caused by or aggravated by his hypertension. The examiner should consider all medical and lay evidence of record. The Veteran reported that he had hemorrhoids during service that swelling from the hemorrhoids pushed up against his prostate leading to his current prostate problems. The Veteran’s service treatment records show treatment for symptoms of pyuria, dysuria, and infections. See, e.g., December 1969 and January 1970 STRs. A complete rationale should be given for all opinions and conclusions expressed. 10. After obtaining any outstanding records, ask the appropriate dental examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any tooth and mouth conditions the Veteran has presented during the claim period (from June 2008 to the present). For each condition, the examiner should opine as to whether the condition at least as likely as not (a 50 percent or greater probability) had an onset in service or is otherwise related to an in-service injury, event, or disease. The examiner is also requested to opine as to whether there was loss of teeth due to loss of substance of the body of the maxilla or mandible; or any loss of any part of the mandible or mandibular ramus, or any part of either condyle (condyloid process) or coronoid process of the mandible, or loss of any part of the maxilla or hard palate. The examiner should consider all medical and lay evidence of record. The Veteran reported that he received injuries to his teeth from playing basketball during service. He reported that he was hit in the mouth during basketball several times, that his teeth were loosened from such injuries, and that the teeth were ultimately removed. The Veteran’s service treatment records show that several teeth were extracted during service. A complete rationale should be given for all opinions and conclusions expressed. 11. After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel