Citation Nr: 1816643 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-01 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a gastrointestinal disorder. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral knee injuries. 3. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression, and anxiety. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2011 and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's claim file. The Veteran's claims file contains evidence demonstrating various diagnoses pertaining to his gastrointestinal symptoms. Although the Veteran identified a stomach condition when raising his claim for service connection, and later claimed gastroenteritis and heartburn, a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition, but rather, sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). Thus, the Board has recharacterized the claim as reflected on the cover page. The Veteran originally filed a service connection claim for PTSD, also claimed as anxiety and depression. Claims of service connection for psychiatric disabilities encompass claims for all acquired psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the claim as reflected on the cover page. In April 2014, the Veteran raised a question as to his entitlement to a clothing allowance. To date, the RO does not appear to have addressed this matter. Therefore, the Board does not have jurisdiction over it, and it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for a gastrointestinal disorder and entitlement to service connection for an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an unappealed November 2008 rating decision, the RO denied service connection for a gastrointestinal disorder and bilateral knee injuries. 2. A November 1968 Report of Medical History added to the claims file since the November 2008 decision, and which identified a complaint of "stomach, liver or intestinal trouble" is relevant to the service connection claim for a gastrointestinal disorder. 3. Evidence received since the November 2008 decision does not raise a reasonable possibility of substantiating the service connection claim for bilateral knee injuries. CONCLUSIONS OF LAW 1. The November 2008 rating decision denying service connection for a gastrointestinal disorder and bilateral knee injuries is final. 38 U.S.C. § 7104, 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a gastrointestinal disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(c)(i) (2017). 3. New and material evidence has not been received sufficient to reopen the Veteran's claim for entitlement to service connection for bilateral knee injuries. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In regard to analyzing the record in this context, 38 C.F.R. § 3.156(c) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the section. 38 C.F.R. § 3.156(c)(1). Relevant service records as defined by 38 C.F.R. § 3.156(c) include: (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). This provision does not apply to records that VA could not have obtained when deciding the claim because they did not exist when VA decided it, or because the claimant failed to provide sufficient information for VA to identify and obtain them for an official source. 38 C.F.R. § 3.156(c)(2). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of the appeal period stemming from the November 2008 decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thus, 38 C.F.R. § 3.156(b) is not applicable. By way of background, the Veteran's claims for service connection for a gastrointestinal disorder and bilateral knee injuries were originally denied in a November 2008 rating decision. The decision denied service connection for a gastrointestinal disorder because, although there were notes in the Veteran's service treatment records (STRs) revealing several gastrointestinal complaints, his separation examination report was negative for any notation relevant to gastroenteritis or heartburn or any other condition at the time of discharge. See November 2008 Rating Decision. As regards the bilateral knee claim, the evidence did not show a diagnosis, or any symptoms or treatment, for a left knee disability during military service. One STR indicated treatment for a right knee sprain during service, but the Veteran's separation examination report was negative for any right knee condition. Accordingly, the RO denied the claim. Id. The Veteran did not submit any additional evidence within the year following the rating decision, nor did he perfect an appeal within the required timeframe. Therefore the November 2008 decision is final. 38 C.F.R. § 3.109. The Veteran filed his claim to reopen in September 2010. In a February 2011 rating decision, the RO found no new and material evidence had been submitted to warrant a reopening of the claims. Evidence at the time of the November 2008 rating decision included the Veteran's STRs, post-service medical records, and statements regarding his claims. The STRs obtained by VA included service entrance examination and service separation examination reports that were negative for any notation regarding the claimed disabilities. A clinical cover sheet from May 1968 diagnosed "Gastroenteritis, acute. Organism, unknown." In August 1968, the Veteran reported heartburn symptoms for two to three weeks and was diagnosed with dyspepsia. In a November 1968 STR, the Veteran was diagnosed with "gastroenteritis, viral." Also in November 1968, the Veteran reported he had twisted his leg playing basketball and was diagnosed with a sprained right knee. Ice, heat, and aspirin were prescribed. Following service, in July 1976, the Veteran sought treatment reporting that his stomach hurt. An examination was essentially negative, with his abdomen within normal limits. In September 1985, the Veteran sought treatment for stomach gas and abdominal pain lasting three days. The impression was rule out viral gastroenteritis. An upper gastrointestinal panel was conducted and the results were negative. A diagnosis of gastroenteritis was given and Mylanta was prescribed. The Veteran's lay statements included a contention that his bilateral knee injuries stemmed from a sled accident in service, for which he was in traction and for which he is service-connected for a back disability. He also contended that his gastrointestinal symptoms began in service, continued after service, and were still currently ongoing. Evidence added to the record since the November 2008 rating decision includes a Report of Medical History dated in November 1968, submitted by the Veteran, VA treatment records, VA examination reports, a private opinion, and the Veteran's hearing testimony regarding his claims. Medical records added to the claims file include a March 1999 treatment record where the Veteran reported epigastric pain and gastritis was suspected. Gastritis was again suspected in June 2000. In July 2006, the Veteran had a gastrointestinal bleed. Angiodysplasia and gastroesophageal reflux disease (GERD) were diagnosed. He continues to be diagnosed with and treated for GERD. In October 2013, the Veteran underwent VA examinations in connection with his claims. The Veteran was diagnosed with chronic alcoholic gastroesophagitis, status post upper gastrointestinal hemorrhage, with residual mild anemia and current symptoms of dyspepsia. He reported stomach conditions with recurring episodes of non-severe symptoms four or more times per year, lasting one to nine days. He described periodic abdominal pain occurring less than monthly only partially relieved by therapy. Other symptoms included anemia, nausea, transient vomiting once per year lasting less than one day, transient hematemesis once per year lasting less than one day, and transient melena once per year lasting less than one day. CBC testing indicated low hemoglobin, as well. The examiner determined that although the Veteran was treated in service for gastroenteritis and related symptoms on out-patient and in-patient bases, the current gastro-esophagitis condition was less likely as not a continuation or progression of the in-service symptoms. "Acute gastroenteritis with no organism found" was determined to be at least as likely as not a self-limiting viral infection of the stomach and intestines, whereas the current gastro-esophageal condition was determined to be due to complications of alcoholism. A knee examination diagnosed right knee mild chronic patellar tendonitis with early osteoarthritis and un-united tibial tubercle ossification. The examiner determined that the Veteran's condition was less likely than not incurred in or caused by an in-service injury as no objective medical evidence in the STRs could establish a direct relationship. The Veteran's private doctor submitted a letter in December 2013 stating that the Veteran had been under his care for many years and that he suffers from chronic anemia and GERD. In June 2017, the Veteran submitted a November 1968 separation report of medical history which checked yes to "stomach, liver, or intestinal trouble" and checked no to "'trick' or locked knee." At the June 2017 hearing, the Veteran reported that he injured his knees in service playing basketball, during a track vehicle injury, and during a sled vehicle accident while on ski patrol. He reported his right knee symptoms were worse than those of the left knee, he used a cane, he once fell while exiting a vehicle, and he constantly wears elastic knee braces. The Board finds that the November 1968 Report of Medical History indicating stomach, liver, or intestinal trouble is a service record that is related to a claimed in-service event, injury, or disease under 38 C.F.R. § 3.156(c)(i). Accordingly, the Board must reconsider the claim for service connection for a gastrointestinal disorder. The claim is therefore reopened and will be considered upon remand. The November 1968 separation report did not provide any further information regarding the claim for service connection for bilateral knee injuries, as it reflected the same information contained in the separation report of record in November 2008. As such, that claim need not be reopened on the basis of 38 C.F.R. § 3.156(c)(i). Although the evidence added to the record regarding the Veteran's bilateral knees is new evidence, it is not material to the Veteran's claim for service connection for bilateral knee injuries. There is no additional STR evidence indicating that the Veteran sought treatment for other knee injuries in service. No medical evidence has been provided that indicates any connection between the Veteran's right knee sprain in November 1968 and any current condition. There is no medical evidence that his knees were injured in the sled accident which caused his service-connected back injury. In sum, new and material evidence has not been submitted. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade v. Shinseki, 24 Vet. App. at 118. Thus, the Board finds that the new evidence submitted for the gastrointestinal disorder claim relates to unestablished facts necessary to substantiate the Veteran's claim. Therefore, the Board concludes that the claim for service connection for a gastrointestinal disorder is reopened. As no new and material evidence has been received regarding the claim for service connection for a bilateral knee disorder, that claim is not reopened. ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a gastrointestinal disorder is granted. No new and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for bilateral knee injuries is denied. REMAND I. Gastrointestinal Disorder Because there is evidence of gastrointestinal complaints in service and the Veteran has current gastrointestinal diagnoses and ongoing symptoms, a VA examination was conducted in October 2013. The examiner determined that any condition the Veteran now suffers from is the result of complications from alcohol abuse and unrelated to the in-service complaints. There is some indication in the record that the Veteran has struggled with alcohol abuse, and that mental health providers have encouraged him to abstain from alcohol use. However, there are no notations or diagnoses in the Veteran's medical records attributing any of his medical conditions to complications of chronic alcohol use. It is unclear whether the VA examiner's determination of chronic alcohol abuse complications is based upon statements from the Veteran or the limited statements by mental health providers, as there are no medical records suggesting the alcohol abuse history as related in the examination report. To obtain clarity on the nature and etiology of the Veteran's current condition and its possible correlation with his in-service symptoms, a new examination and opinion will be sought. II. Acquired Psychiatric Disorder Throughout the appeal period, the Veteran has been diagnosed with PTSD, depression, and anxiety. A formal finding was issued in September 2013 that the alleged PTSD stressors indicated by the Veteran could not be verified. Additionally, there are no STRs reporting psychiatric symptoms or complaints. In an April 1976 post service treatment record, the Veteran was complaining of back pain and stomach pain and the clinician noted that he was in an "anxiety state" over these conditions. He expressed worry about his back disability. In a statement by the Veteran received in February 2014, he described the pain and symptoms from his service-connected back and neck disabilities. He stated that he was extremely depressed as a result of his doctor advising that he would have to take medication for pain for those disabilities for the rest of his life. He further described the effect the medications have had since service on his everyday life. The Board finds that the April 1976 treatment record and the Veteran's statement indicate that a theory of entitlement for secondary service connection of an acquired psychiatric disorder was raised in the record but never adjudicated. Accordingly, a new VA examination and opinion should be obtained to determine whether the Veteran's current psychiatric symptoms are related to his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for an acquired psychiatric disorder as secondary to his service-connected disabilities. 2. Contact the Veteran and request that he provide information as to any outstanding records pertaining to his gastrointestinal and psychiatric conditions, specifically to include any outstanding private treatment records. He should be asked to authorize the release of any outstanding pertinent non-VA medical records. 3. Attempt to obtain relevant outstanding VA treatment records. 4. Schedule the Veteran for a VA examination by a qualified clinician to determine the nature, extent, onset, and etiology of any gastrointestinal disorders. The contents of the entire claims file should be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. Although whether the Veteran's gastrointestinal symptoms in service are related to any current disorder may be obvious on the current record to one trained in medicine, it is necessary for purposes of VA benefits claims that a qualified person explain the matter to those untrained in medicine. With that in mind, the examiner is asked to identify all gastrointestinal diagnoses and to provide an opinion as to whether it is more likely than not (50 percent or better probability) that any gastrointestinal disorder originated during the Veteran's active service, or is otherwise etiologically related to the Veteran's active service. The examiner is specifically asked to address the September 2013 VA examination findings (notably the reference to alcohol abuse history) in the context of the Veteran's service treatment records, medical history, and current condition, (and what they may show regarding alcohol abuse). 5. Schedule the Veteran for a VA psychiatric evaluation by a qualified clinician. The contents of the entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is asked to address the following: a. Identify the current psychiatric diagnoses. b. Provide an opinion as to whether it is more likely than not (50 percent or better probability) that any psychiatric disorder originated during the Veteran's active service, or is otherwise etiologically related to the Veteran's active service. c. Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any psychiatric disability is proximately due to the Veteran's service-connected disabilities, specifically to include his back and neck disabilities and any medications prescribed for such disabilities. c. Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any psychiatric disability is chronically aggravated by the Veteran's service-connected disabilities, specifically to include his back and neck disabilities and any medications prescribed for such disabilities. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. d. In determining whether any psychiatric disability is aggravated by the service-connected disabilities, the examiner should opine upon a baseline level of severity of the psychiatric disability established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the psychiatric disability. 38 C.F.R. § 3.310(b) (2017). 6. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative. After allowing an appropriate amount of time for response, return the case to the Board for review. The Veteran has the right to submit additional evidence and argument on the 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs