Citation Nr: 1815863	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  16-46 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cardiac disability.

2.  Entitlement to service connection for a cardiac disability, to include ischemic heart disease, congestive heart disease, and coronary artery disease, claimed as due to herbicide agent exposure in service.

3.  Entitlement to service connection for Crohn's disease.

4.  Entitlement to an initial rating in excess of 20 percent for a small bowel resection, status post gunshot wound with gastroesophageal reflux disease (GERD) and Barrett's esophagus, to include a claim for a separate rating for GERD and Barrett's esophagus.

5.  Entitlement to an initial rating in excess of 0 percent for residual scars from a small bowel resection due to gunshot wound.


REPRESENTATION

Appellant represented by:	Allen Gumpenberger, Agent


ATTORNEY FOR THE BOARD

Gillian A. Flynn, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1957 to May 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The issues of entitlement to service connection for a cardiac disability and Crohn's disease, and entitlement to increased ratings for a bowel resection due to gunshot wound, and scars due to gunshot wound are bowel resection, are REMANDED to the Agency of Original Jurisdiction.


FINDINGS OF FACT

1.  A February 2008 rating decision denied service connection for ischemic heart disease, to include coronary artery disease.  The Veteran was notified of that decision and of his appellate rights, but did not initiate an appeal.

2.  The evidence received since the February 2008 decision relates to unestablished facts necessary to substantiate the claim for service connection for ischemic heart disease, to include coronary artery disease, and raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW

1.  The February 2008 rating decision that denied a claim of entitlement to service connection for ischemic heart disease, to include coronary artery disease, is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2017).

2.  New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for ischemic heart disease, to include coronary artery disease.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Generally, a final decision issued by the Agency of Original Jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C. § 7105(c), (d) (2012).  However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C. § 5108 (2012).

New evidence is evidence that has not previously been reviewed by VA adjudicators.  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 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) (2017).

In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened.  Hickson v. West, 12 Vet. App. 247 (1999).

The Veteran's claim of entitlement to service connection for a cardiac disability was originally denied in a February 2008 rating decision because there was no evidence that the condition developed during service or to a compensable degree within one year of service, and there was no evidence that the Veteran had been exposed to herbicides in service.  The Veteran was notified of the decision and of his appellate rights, but did not initiate an appeal.  There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal.  38 C.F.R. § 3.156(b) (2017).  Thus, the decision became final.

The pertinent evidence received since the February 2008 denial includes the Veteran's April 2016 statement that he had been exposed to herbicides when he deplaned after landing at Tan Son Nhut Air Base in the Vietnam and his March 2014 Notice of Disagreement asserting that he was exposed to herbicide agents while assigned to temporary duty beginning in June 1966 at Udorn Air Base in Thailand.  The Veteran's statements and medical evidence indicate that the Veteran has ischemic heart disease, which encompasses coronary artery disease under 38 C.F.R. § 3.309(e), and that it may be related to active service.

Presuming the credibility of the new evidence for the purpose of determining whether it is material, the record now indicates that the Veteran's ischemic heart disease may have been caused or aggravated by active service.  That evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim.  Thus, as new and material evidence has been received, the claim for service connection for ischemic heart disease, to include coronary artery disease, is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


ORDER

New and material evidence having been received, the claim for entitlement to service connection for a cardiac disability is reopened.  To that extent only, the claim is allowed.

REMAND

The Veteran contends that he is entitled to service connection for ischemic heart disease, to include coronary artery disease, as caused or aggravated by active service, due to exposure to herbicides.  According to an April 2013 VA examination report, the Veteran was diagnosed with ischemic heart disease, which is a disability subject to presumptive service connection for Veterans exposed to herbicides during active service.  38 C.F.R. § 3.309(e) (2017).  The Veteran's service personnel records show that he had temporary duty in Thailand from June 1966 to September 1966.  The Veteran asserts that he was stationed at Udorn Air Base, where, according to government reports, a significant use of herbicides occurred between February 1961 and May 1975.  "Thailand Military Bases and Agent Orange Exposure" at http://www.publichealth.va.gov/exposures/agentorange/thailand.asp.  The Board finds that further development is needed to corroborate the Veteran's contention of having been exposed to herbicide agents during service.

In addition, the most recent examination for rating the Veteran's small bowel resection and scar disabilities due to a gunshot wound is unduly remote.  Also, he has since established service-connected for Barrett's esophagus and GERD.  The Board finds that further examination is needed to determine whether separate ratings should be assigned for a digestive disability and a gunshot wound disability, and to provide a contemporary assessment of the functional limitations caused by those service-connected disabilities.  That examiner should also provide an opinion as to whether claimed Crohn's disease was caused or aggravated by service-connected disabilities.

Accordingly, the case is REMANDED for the following action:

1.  Pursuant to VA's Adjudication Procedures Manual, M21-1MR, contact the Joint Services Records Research Center, the Air Force Historical Research Agency, and any other appropriate record repositories to investigate the Veteran's claimed herbicide agent exposure.  In particular, request investigation of the Veteran's claim regarding assignments and duties at Udorn Air Base, Thailand from June 1966 to September 1966, and the claim of having visited Tan Son Nhut Air Force Base in Vietnam during service.  Request review of all relevant records regarding the Veteran's claim that he deplaned after landing at Tan Son Nhut Air Base in Vietnam between June 1966 and September 1966.  Document all requests and the responses from these entities in the claims folder.

2.  After obtaining any necessary releases, obtain and associate with the claims file, any additional outstanding pertinent VA or private medical records.

3.  Schedule the Veteran for a VA gastrointestinal examination with a medical doctor.  The examiner must review the claims file and should note that review in the report.  The examiner should describe the symptoms of Barrett's esophagus and GERD.  The examiner should specifically state whether or not the Veteran has pain due to GERD, vomiting, material weight loss, hematemesis, melena, anemia, recurrent epigastric distress, dysphagia, pyrosis, regurgitation, or substernal arm or shoulder pain.  The examiner should opine whether the digestive disability causes considerable impairment of health, or severe impairment of health.  The examiner should also state whether or not any esophageal stricture or spasm is shown.  In addition, the examiner should opine whether or not a diagnosis of Crohn's disease is warranted and should explain that finding and reconcile it with the previous evidence of record.  The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any Crohn's disease is etiologically related to service, or any event, injury, or disease in service, to include a gunshot wound.  The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any Crohn's disease is due to, the result of, of caused by any service-connected disability to include gunshot wound, bowel resection, GERD, Barrett's esophagus, or scarring.  The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any Crohn's disease is aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability to include gunshot wound, bowel resection, GERD, Barrett's esophagus, or scarring.  

4.  Schedule the Veteran for a VA gunshot wound muscle injury examination with a medical doctor.  The examiner must review the claims file and should note that review in the report.  The examiner should review the service records regarding the service-connected gunshot wound and should state what muscle group or groups were involved in the initial gunshot wound.  The examiner should specify whether the initial injury was through-and-through or a deep penetrating wound.  The examiner should state whether or not, and to what extent, the Veteran has the cardinal signs and symptoms of muscle disability:  (1) low of power, (2) weakness, (3) lowered threshold of fatigue, (4) fatigue-pain, (5) impairment of coordination, and (6) uncertainty of movement.

5.  Schedule the Veteran for a VA scars examination.  The examiner must review the claims file and should note that review in the report.  The examiner should provide measurements of the scarring and unretouched color photographs.  The examiner should opine whether any scars are unstable or painful.  The examiner should state whether the scars are deep or superficial.  The examiner should state whether the scars result in any limitation of function.

6.  Schedule the Veteran for a VA cardiovascular examination.  The examiner must review the claims file and should note that review in the report.  The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any cardiac disability is related to service, or any event, injury, or disease during service.  The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any cardiac disability is due to, the result of, of caused by any service-connected disability to include gunshot wound, bowel resection, GERD, Barrett's esophagus, or scarring.  The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any cardiac disability is aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability to include gunshot wound, bowel resection, GERD, Barrett's esophagus, or scarring.

7.  Readjudicate the issues on appeal.  Specifically consider whether separate ratings for gunshot wound muscle injury and a digestive disability should be assigned.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs