Citation Nr: 18159768 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-35 973 DATE: December 20, 2018 ORDER Petition to reopen the claim of service connection for an amphetamine-induced anxiety disorder is granted. Petition to reopen the claim of service connection for left hip degenerative joint disease is granted. Petition to reopen the claim of service connection for hepatitis C is granted. FINDINGS OF FACT 1. In February 2009, the Veteran filed claims for service connection for amphetamine-induced anxiety, degenerative bone disease, and hepatitis C that were then denied in a February 2010 rating decision. 2. The Veteran filed a timely notice of disagreement but did not perfect his appeal following the December 2011 Statement of the Case, and the February 2010 rating decision became final. 3. Since the February 2010 rating decision denying service connection for amphetamine-induced anxiety, the Veteran has been service-connected for posttraumatic stress disorder with polysubstance dependence (PTSD). 4. Since the February 2010 rating decision, new and material evidence has been associated with the claims file documenting a diagnosis of left hip degenerative joint disease 5. Since the February 2010 rating decision, new and material evidence has been associated with the claims file that suggests the Veteran’s hepatitis C is related to service. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying service connection for amphetamine-induced anxiety, hepatitis C, and degenerative bone disease is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100 (2017). 2. The criteria to reopen the claim of service connection for an amphetamine-induced anxiety disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to reopen the claim of service connection for degenerative bone disease, now characterized as left hip degenerative joint disease, have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria to reopen the claim of service connection for hepatitis C have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Relevant new medical records and examinations were received after the September 2015 and February 2016 Statements of the Case. In October 2018, VA notified the Veteran of his right to have the agency of original jurisdiction review the evidence before the Board reviews his case, and that failure to waive this right within 45 days from the date of the letter would result in a remand. The Veteran did not waive his right within 45 days of the letter; accordingly, a remand is necessary for the AOJ to review the new evidence. The Board granted the following petitions to reopen prior to remanding the matter, however, because the grants are favorable to the Veteran and will not prejudice his claims. 1. Petition to reopen the claim of service connection for an amphetamine-induced anxiety disorder is granted. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100, 20.1103, 20.1104. If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. See Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. See id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). In February 2010, the RO denied service connection for an amphetamine-induced anxiety disorder because the “condition is a result of your substance abuse and substance abuse is defined, by law, as willful misconduct.” The Veteran filed a timely notice of disagreement but did not perfect his appeal after the December 2011 Statement of the Case, and the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since then, the Veteran has been service-connected for PTSD with polysubstance dependence, thereby enabling the Veteran to establish secondary service connection for amphetamine-induced anxiety if appropriate. As new and material evidence has been received since the final February 2010 rating decision, the Veteran’s petition to reopen the claim of service connection for an amphetamine-induced anxiety disorder is granted, but to this extent only. 2. Petition to reopen the claim of service connection for left hip degenerative joint disease is granted. In February 2010, the RO denied service connection for degenerative bone disease because the evidence did not show a diagnosed bone disease, and November 2009 VA records showed normal hip x-rays. The Veteran filed a timely notice of disagreement but did not perfect his appeal after the December 2011 Statement of the Case, and the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since then, VA medical records have been associated with the claims file that document a diagnosis of left hip degenerative joint disease. As new and material evidence has been received since the final February 2010 rating decision, the Veteran’s petition to reopen the claim of service connection for left hip degenerative joint disease is granted, but to this extent only. 3. Petition to reopen the claim of service connection for hepatitis C is granted. In February 2010, the RO denied service connection for hepatitis C because the evidence did not show that his hepatitis C began in or was caused by service. The Veteran filed a timely notice of disagreement but did not perfect his appeal after the December 2011 Statement of the Case, and the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.   Since then, the Veteran has submitted private medical evidence that relates his hepatitis C to service. As new and material evidence has been received since the final February 2010 rating decision, the Veteran’s petition to reopen the claim of service connection for hepatitis C is granted, but to this extent only. REMANDED Petition to reopen the claim of service connection for a left foot disorder is remanded. Service connection for an amphetamine-induced anxiety disorder is remanded. Service connection for left hip degenerative joint disease is remanded. Service connection for hepatitis C is remanded. Service connection for an enlarged spleen is remanded. Service connection for sleep apnea secondary to the service-connected PTSD is remanded. Service connection for gastroesophageal reflux disease (GERD) secondary to the service-connected PTSD is remanded. Service connection for a dental disorder secondary to the service-connected PTSD is remanded. Entitlement to a 100 percent rating prior to June 10, 2016 for the service-connected PTSD is remanded. Entitlement to an effective date earlier than April 22, 2013 for the award of service connection for PTSD is remanded. Entitlement to special monthly compensation based on aid and attendance/ housebound status is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND As discussed, relevant new medical records and examinations were received after the September 2015 and February 2016 Statements of the Case. Because the Veteran did not waive his right to initial AOJ consideration of the new evidence, the matter must be remanded. Regarding the claims for hepatitis C and an enlarged spleen, the January 2014 VA examiner concluded that the Veteran did not develop hepatitis C in service and it was not due to his PTSD. She further concluded that his enlarged spleen was related to his hepatitis C. The examiner did not explain, however, why his hepatitis C was not secondary to his service-connected PTSD with polysubstance dependence, including use of opioids and methamphetamines. Accordingly, a remand is necessary for an addendum medical opinion. While on remand, additional development is necessary for the following issues. Regarding the Veteran’s dental claim, the February 2016 VA examiner concluded that “it cannot be stated without resorting to speculation that [the bruxism condition] is caused by or aggravated beyond its natural progression by military service.” The examiner did not explain why such an opinion would be speculative and did not specifically address whether the Veteran’s PTSD with polysubstance abuse caused or aggravated his bruxism. The AOJ should therefore obtain an adequate medical opinion on appeal. Regarding the issue of entitlement to a TDIU, in May 2017, the RO denied the Veteran’s claim for a TDIU and granted a 100 percent rating for the service-connected PTSD, effective June 10, 2016. In September 2017, the Veteran filed a notice of disagreement with respect to the effective date of the 100 percent rating; the Veteran did not file a notice of disagreement with respect to the TDIU denial. However, because the Veteran is challenging the initial disability rating assigned for his PTSD, the disability upon which he based his TDIU claim, whether he is entitled to a TDIU prior to June 10, 2016 is part and parcel of the claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board will thus take jurisdiction over this claim and remand it accordingly. Regarding the claim for special monthly compensation, the Veteran filed a timely notice of disagreement in September 2018 and a Statement of the Case has not been issued yet. Accordingly, the Board takes jurisdiction over this issue solely to remand it for a Statement of the Case. See 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Finally, regarding the Veteran’s September 2017 notice of disagreement with the May 2017 rating decision awarding a 100 percent rating for the service-connected PTSD effective June 10, 2016, the disagreement with the effective date is contemplated by the current appeal for a 100 percent rating prior to June 10, 2016 for the service-connected PTSD; therefore, the Board does not need to remand this issue for a Statement of the Case. The matters are REMANDED for the following action: 1. Obtain the Veteran’s Kansas City VAMC records from August 2018 to the present. 2. Send the Veteran and his representative the appropriate notice for his TDIU claim. 3. Forward the Veteran’s claims file to the February 2016 VA examiner, or another appropriate examiner if he is unavailable, for an addendum medical opinion on the etiology of the Veteran’s bruxism disorder. After review of the claims file, including this remand, the examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s bruxism disorder was caused by his service-connected PTSD with polysubstance dependence? (b.) Is it at least as likely as not that the Veteran’s bruxism disorder was aggravated by his service-connected PTSD with polysubstance dependence? If the examiner cannot reach a conclusion without resorting to mere speculation, the examiner should provide an explanation. 4. Forward the Veteran’s claim to the January 2014 VA examiner, or another appropriate examiner if she is unavailable, for an addendum medical opinion on the etiology of the Veteran’s hepatitis C disorder. After review of the claims file, including this remand, the examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s hepatitis C was caused by his service-connected PTSD with polysubstance dependence? The examiner should consider the medical evidence submitted by the Veteran on March 23, 2017. (b.) Is it at least as likely as not that the Veteran’s hepatitis C was aggravated by his service-connected PTSD with polysubstance dependence? The examiner should consider the medical evidence submitted by the Veteran on March 23, 2017.   5. The AOJ should review all evidence received since the September 2015 and February 2016 Statements of the Case, and issue a Supplemental Statement of the Case to the Veteran and his representative. 6. Send the Veteran and his representative a statement of the case that addresses entitlement to special monthly compensation. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel