Citation Nr: 1817643 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-19 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been presented sufficient to reopen a claim for entitlement to service connection for a back disorder. 2. Entitlement to service connection for a back disorder with associated bilateral sciatic/posterior tibial nerve damage. 3. Entitlement to service connection for enlarged prostate. 4. Entitlement to service connection for ischemic heart disease. 5. Entitlement to service-connection for an acquired psychiatric disorder, to include insomnia. 6. Entitlement to service-connection of headaches. 7. Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in October 2017. A transcript of the hearing has been associated with the record. The issue of service connection for a psychiatric disorder, to include insomnia, was certified to the Board as a claim of service connection for insomnia. The Board has recharacterized the issue, however, to reflect that the scope of the claim most reasonably encompasses any psychiatric disorder, including but not limited to insomnia. The Board finds that this broad characterization of the issue is most consistent with the Veteran's own statements and the available medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The issues of entitlement to service connection for a back disorder with associated bilateral sciatic/posterior tibial nerve damage, entitlement to service connection for enlarged prostate, entitlement to service-connection of headaches, and entitlement to service connection for a neck disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. New evidence that tends to substantiate the claim of service connection for a back disorder has been received since the final rating decision that denied service connection for such disorder. 2. The Veteran is presumed to have been exposed to herbicides such as Agent Orange during active service in Korea. 3. The Veteran has a current diagnosis of ischemic heart disease. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a back disorder is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307(a)(6)(iv), 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection - Ischemic Heart Disease The Veteran contends that he was in the Korean DMZ while in service, and that service connection for ischemic heart disease should be granted on a presumptive basis, based on exposure to herbicides. A Veteran who served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's service personnel records indicate that he served in Korea from April 1, 1968, to August 31, 1971. He served with the HHC 1st Battalion, 17th Infantry, 7th Infantry Division. The Department of Defense has determined that the units that were exposed include the Veteran's unit. M21-1, Part IV, Subpart ii. 1.H.4.b. Therefore, the Veteran's exposure to herbicides is presumed. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, ischemic heart disease shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). Ischemic heart disease shall have become manifest to a degree of 10 percent or more at any time after service. The record includes private medical records from the Detroit Medical Center dated in September 2013, showing that the Veteran has coronary artery disease. These records show that the Veteran was prescribed medication for treatment for coronary artery disease. As such, the Board finds that the Veteran's coronary artery disease manifested to a compensable degree. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). Based on the evidence of record, service connection is warranted for ischemic heart disease. II.a. Claims to Reopen - Legal Criteria Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The Court has 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See id. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). II.b. Background and Analysis In a May 2009 rating decision, the RO noted that the Veteran's service treatment records reflected that he was seen for low back strain on March 1969. At that time there were no fractures or radicular symptoms reported, and there were no further entries concerning the Veteran's back in service treatment records. VA medical records reflected that the Veteran fell down the stairs and injured his back in June 2008. X-rays at that time revealed degenerative joint disease of the lumbar spine as well as a prior L4-L3 laminectomy with degenerative changes. The RO denied service connection for degenerative disc disease since the condition was neither incurred in nor caused by service. The Veteran filed a timely notice of disagreement with this decision, and was issued a statement of the case in March 2010. However, he did not file a timely VA form 9 to perfect his appeal to the Board. Rather, his VA form 9 was filed in February 2011, after the time limit for appealing the decision to the Board had expired. The Veteran was informed of this in March 2011. As such, the May 2009 rating decision became final. Since the May 2009 rating decision became final, substantial pertinent evidence has been added to the claims file. An October 2013 letter from the Veteran's private provider, M.C.M., M.D., P.C., reflecting his opinion that, while medical science is not exact, the Veteran's claimed injury could very well have stemmed from military service. The provider noted that once he was hurt, the Veteran's pain did not get better and could have even progressed or caused his current condition. In addition, the Veteran submitted a November 2017 private opinion from M.J.H., D.O., F.A.O.C.P.M.R., who opined that, within a reasonable amount of medical certainty, there was a causal relationship between the Veteran's 1965 in-service boxing injury and his current back disorder, which she diagnosed as lumbosacral x-ray evidence of previous L3 laminectomy, anteriolithesis at L3-L4 and degenerative disc disease, lumbar spinal canal stenosis, spondylosis, multilevel neuralforaminal stenosis, multilevel facet arthropathy and grade1anterolisthesis L3-L4 with degenerative changes and lumbar radiculopathy. This evidence is new, as it was not part of the record at the time the May 2009 rating decision became final. The Board also finds that the new evidence is material because it directly addresses the reason the claim was previously denied, by providing a potential link between the Veteran's in-service back injury and a current disorder. This evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claims of service connection for a back disorder. Hence, the appeal to this extent is allowed. ORDER Service connection for ischemic heart disorder is granted. New and material evidence with respect to the claim of service connection for a back disability has been received; the claim is reopened, and to this limited extent, the appeal of the issue is granted. REMAND After review of the record, the Board finds that there are outstanding private medical records pertinent to the Veteran's claims on appeal. At his hearing, the Veteran reported that he underwent treatment for his prostate through a private provider. While a March 2010 letter from this private provider is part of the record, the Board finds that the records reflecting treatment are relevant to his claim for entitlement to service connection for prostate enlargement. As such, on remand, these records should be obtained. With regard to the Veteran's claim for entitlement to service connection for a back disability, the Board finds that the criteria for a VA examination have been met. As such, the Veteran should be provided with a VA examination to determine whether his current back disabilities are related to service. In providing the opinion, the examiner should address the Veteran's reports of back pain since service and the positive opinions of record. See October 2013 letter from the Veteran's private provider, M.C.M., M.D., P.C.; November 2017 private opinion from M.J.H., D.O., F.A.O.C.P.M.R. In addition, the VA examiner should address any intercurrent injuries sustained by the Veteran since service. With regard to the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include insomnia, the Board notes that the Veteran was provided with a VA examination in October 2013. The examiner diagnosed primary insomnia. While she noted that there was a March 1970 note in the Veteran's service treatment records that, while in the service he was treated for having problems sleeping due to anxiety, she opined that his current insomnia not caused by or a result of military service. In terms of a rationale for this opinion, she noted that the Veteran said he was treated by his primary care physician for insomnia in 1998, and that he complained of getting up at night to sometimes use the bathroom. The examiner noted that September 2007 posttraumatic stress disorder (PTSD) and depression screens were negative. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the October 2013 VA opinion is inadequate. The examiner cited some instances in the record regarding the Veteran's reports of sleep problems; however, she did not provide a true rationale, or explanation, for her opinion. In addition, the examiner did not address the fact that the Veteran was found to have anxiety during service, and is currently diagnosed with depression. As such, this opinion is inadequate, as it does not fully address the evidence currently in the record. On remand, the Veteran should be provided with a VA examination to determine whether any currently diagnosed psychiatric disorder is attributable to service. The Veteran filed a timely notice of disagreement regarding the November 2012 rating decision, denying service connection for headaches and a neck disorder, which puts these issues in appellate status. He has not been issued a statement of the case regarding these issues on appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case regarding the issues of entitlement to service connection for headaches and a neck disorder. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the remanded claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. In particular, treatment records from the private provider who authored the March 2010 letter regarding the Veteran's prostate treatment should be obtained and added to the claims file. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession. For federal records, 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, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for a VA examination to determine the etiology of the Veteran's back disorders. All indicated tests and studies should be conducted. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's back disorder and any associated neurological abnormalities were caused by or are etiologically related to any incident of active duty. The examiner should address the Veteran's reports of back pain since service and the positive opinions of record, including the October 2013 letter from the Veteran's private provider, M.C.M., M.D., P.C. and the November 2017 private opinion from M.J.H., D.O., F.A.O.C.P.M.R. In addition, the VA examiner should address any intercurrent injuries sustained by the Veteran since service. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 4. Schedule the Veteran for a VA examination to determine the etiology of any psychiatric disorder diagnosed since March 2011. All indicated tests and studies should be conducted. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any psychiatric disorder diagnosed since March 2011 was caused by or is etiologically related to any incident of active duty. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 5. Readjudicate the issues on appeal. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs