Citation Nr: 20003115 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 14-24 616A DATE: January 14, 2020 ORDER The petition to reopen the claim of entitlement to service connection for enlarged prostate is denied. The petition to reopen the claim of entitlement to service connection for skin rash is denied. Entitlement to service connection for chronic headaches, as secondary to residuals of service-connected head injury / traumatic brain injury (TBI), is granted. REMANDED Entitlement to service connection for heart disease, to include hypertensive heart disease or ischemic heart disease claimed as due to presumed exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for enlarged prostate was denied by a September 2008 RO rating decision; the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one-year appeal period. 2. Evidence received since the September 2008 RO rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the previously-denied claim of entitlement to service connection for enlarged prostate. 3. The Veteran’s claim of entitlement to service connection for skin rash was denied by a December 2005 RO rating decision; the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one-year appeal period. 4. Evidence received since the December 2005 RO rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the previously-denied claim of entitlement to service connection for a skin rash. 5. Resolving reasonable doubt in the Veteran’s favor, his diagnosed headache pathology is proximately due / causally linked to his service-connected head injury / TBI residuals. CONCLUSIONS OF LAW 1. The September 2008 rating decision that denied the claim of entitlement to service connection for enlarged prostate is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for enlarged prostate have not been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3. The December 2005 rating decision that denied the claim of entitlement to service connection for a skin rash is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. The criteria for reopening the claim of entitlement to service connection for skin rash have not been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 5. The criteria for service connection for headaches as secondary to service-connected TBI are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to January 1971. These matters originally came to the Board of Veterans’ Appeals (Board) on appeal from September 2011 and September 2013 rating decisions by Regional Offices (ROs) of the Department of Veterans Affairs (VA). In June 2018, the Board denied each of these issues on appeal as part of a broader set of issues addressed in a Board decision. The Veteran appealed the denials of these particular issues to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the parties to the appeal (the Veteran, through his attorney, and a representative from VA General Counsel) filed a Joint Motion for Partial Remand of the Board’s decision (Joint Motion). The parties agreed that the Board’s decision should be vacated and remanded to the extent of “that part of the [Board] decision (1) finding that new and material evidence had not been received to reopen previously denied claims of entitlement to service connection for (a) an enlarged prostate and (b) a skin rash; and (2) denying service connection for (a) ischemic heart disease, to include as being due to presumed herbicide agents, and (b) migraine headaches….” The Court granted the Joint Motion in June 2019. The Court-endorsed Joint Motion made expressly clear that it did not seek to disturb those portions of the Board decision on appeal that granted, denied, or remanded various other claims. Accordingly, only the issues concerning entitlement to service connection for an enlarged prostate, skin rash, heart disease, and headaches are before the Board at this time. The Board notes that the June 2018 Board decision’s determination that new and material evidence had been received to reopen the claim of entitlement to service connection for a chronic headache disorder has not been disturbed by the June 2019 Joint Motion and Court Order; accordingly, the headache disorder claim returns to the Board in an already reopened status, and it shall only be addressed on its merits in this new Board decision. The June 2018 Board decision was issued by a Veterans Law Judge (VLJ) other than the undersigned. The case has now returned to the Board and been reassigned to the undersigned VLJ for further appellate review at this time. The Board’s June 2018 decision remanded issues of entitlement to service connection for (1) hypertension, (2) gastroesophageal reflux disease (GERD), and (3) erectile dysfunction. The Board’s June 2018 remand directives concerning these issues have not yet been completely processed by the Agency of Original Jurisdiction (AOJ), and those issues have not returned to the Board for further appellate review at this time. As discussed below, the June 2019 Joint Motion strongly suggests that the scope of the heart disability issue on appeal encompasses not only ischemic heart disease but also other manners of heart disease including hypertensive heart disease. The Board has recharacterized the issue accordingly. Petitions to Reopen Previously Denied Claims Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. 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 (2010). The assertion of a new theory of entitlement to service connection for the same disease or injury that was previously the subject of a final decision does not constitute a new distinct claim for benefits, see Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); however, evidence offered in support of a new theory of entitlement can be sufficient to warrant reopening of the claim if it meets the definitions of new and material evidence. Id. 1. Addressing the Concerns Presented in the June 2019 Joint Motion for Partial Remand The Court-endorsed June 2019 Joint Motion specified that the Court was asked to “vacate that part of the Board of Veterans’ Appeals’ (Board) June 1, 2018, decision (1) finding that new and material evidence had not been received to reopen previously denied claims of entitlement to service connection for (a) an enlarged prostate and (b) a skin rash….” In identifying the problem with the Board’s prior analysis, the Joint Motion states that “the Board failed to adjudicate Appellant’s claims for service connection for an enlarged prostate and a skin rash because both service-connection claims were already in appellate status before the Board.” The Joint Motion explains this finding by citing the procedural history of these two service connection claims, concluding with: “The RO then issued a statement of the case (SOC) in December 2015 reopening and denying the service-connection claim for an enlarged prostate and continuing to deny the service-connection claim for a rash…. Accordingly, the service-connection claims for an enlarged prostate and for a rash were already in appellate status, and remand is required for the Board to adjudicate them.” Significantly, the Board here confirms that the June 2018 Board decision did adjudicate the petitions to reopen the claims of entitlement to service connection for (a) an enlarged prostate and (b) a skin rash. The June 2018 Board decision determined that (1) both service connection claims were subject to prior final denials, and (2) no new and material evidence had been submitted to reopen either claim. The June 2019 Joint Motion does not dispute, contradict, or otherwise challenge these findings of the Board’s June 2018 decision; rather, the Joint Motion merely indicates that the Board “failed [to] provide an adequate statement of reasons or bases” in having “failed to adjudicate Appellant’s claims for service connection for an enlarged prostate and a skin rash.” Thus, it appears that the most reasonable interpretation of the June 2019 Joint Motion’s discussion of these issues is that it expresses concern regarding the adequacy of the Board’s discussion regarding the merits of the -underlying- claims of entitlement to service connection. To address the Joint Motion’s concerns, the Board here notes that its analysis of these two service connection claims must first consider preliminarily whether the claims are subject to prior final denials and, if so, must determine whether new and material evidence has been submitted to reopen each claim for consideration on the merits. Regardless of whether the RO found new and material evidence to reopen a claim, or otherwise reopened a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board has therefore undertaken a de novo review of the new and material evidence determinations required to resolve the Veteran’s petitions to reopen service connection claims in this case. As discussed / reiterated below, the Board has found that these claims are subject to prior final denials and that no new and material evidence has been submitted to reopen them. These findings were previously presented in the Board’s June 2018 Board decision, and the Joint Motion does not identify any objection to these specific findings. Rather, it appears that the Joint Motion requires the Board to more adequately discuss the status / resolution of the underlying claims of entitlement to service connection. The status of the underlying service connection claims in this current appeal is that the claims are denied on the basis of being closed claims subject to prior final denials and lacking any new and material evidence to reopen them. Absent the submission of evidence that is sufficient to reopen a claim, the Board’s analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to undertake an examination of the merits of the claims. For the reasons explained above, the Board is unable to further analyze the merits to the underlying claims of entitlement to service connection for enlarged prostate and skin rash. The Board here proceeds to revisiting its explanations of the denial of the petitions to reopen these claims, generally featuring findings presented in the June 2018 Board decision that were not contradicted by the subsequent Joint Motion. 2. The petition to reopen the claim of entitlement to service connection for enlarged prostate is denied. The Veteran’s claim of entitlement to service connection for enlarged prostate was previously denied within a September 2008 rating decision. The Veteran was notified of this determination and his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period; therefore, the September 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the prior final September 2008 rating decision, the Veteran has asserted that his claimed enlarged prostate is due to his presumed exposure to herbicide agents. Notably, evidence added to the record since the prior final September 2008 rating decision documents treatment for the Veteran’s prostate; however, there is no probative evidence that the Veteran has been diagnosed with an enlarged prostate or that any prostate problem has been attributed to his active service, to include presumed exposure to herbicide agents. Notably, the evidence of record contains indications that the Veteran has a history of recurrent prostate cancer, including as documented in his VA treatment records in March 2005 (of record at the time of the September 2008 rating decision) and in August 2018. The Veteran has separately sought to establish entitlement to service connection for prostate cancer in a different claim, and that separate claim was denied by the Board’s June 2018 rating decision. That denial has not been disturbed by the subsequent Joint Motion. The matter on appeal before the Board at this time concerns entitlement to service connection for an enlarged prostate. The September 2008 RO rating decision determined that the evidence did not establish that Veteran had an enlarged prostate, and the Board finds that no evidence submitted since that time shows that the Veteran has an enlarged prostate or any link between the Veteran’s prostate health and his military service. Although evidence prior to and after the September 2008 RO rating decision includes references to the Veteran’s prostate health, the evidence does not show an enlarged prostate or a link between a prostate condition and the Veteran’s military service. As such, the new evidence added to the record since the prior final September 2008 rating decision is not material because it does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for enlarged prostate, namely that such condition has been shown to exist (or that the claimed condition is related to the Veteran’s active service, including presumed exposure to herbicide agents therein.) 38 C.F.R. § 3.156(a). Given that the evidence submitted is not both new and material, reopening of the claim of entitlement to service connection for enlarged prostate is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The petition to reopen the claim of entitlement to service connection for skin rash is denied. The Veteran’s claim of entitlement to service connection for a skin rash was previously denied within a December 2005 rating decision. (The date of this decision was accidentally mis-stated in parts of the June 2018 Board decision, but is corrected in this current decision). The Veteran was notified of this determination and his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period; therefore, the December 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The December 2005 RO rating decision found that there was no etiological link between the Veteran’s skin rash problems and his military service. Since the prior final December 2005 rating decision, the Veteran has asserted that his claimed skin rash is due to presumed exposure to herbicide agents during active service. Evidence added to the record includes VA treatment records, which document treatment for groin rash, tinea pedis, and dermatitis. Notably, however, there is no probative evidence that the Veteran has been diagnosed with a skin condition that has been attributed to his active service, to include presumed exposure to herbicide agents. As such, any new evidence added to the record since the prior final December 2005 rating decision is not material because it does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a skin rash, namely that such condition is related to the Veteran’s active service, including presumed exposure to herbicide agents therein. 38 C.F.R. § 3.156(a). Given that the evidence submitted is not both new and material, reopening of the claim of entitlement to service connection for skin rash is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Entitlement to service connection for chronic headaches, as secondary to residuals of service-connected head injury / TBI. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability, by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. With regard to the claim of entitlement to service connection for chronic headaches, the Joint Motion discussed that the Board’s now-vacated June 2018 decision “failed to provide an adequate statement of reasons or bases … when it relied on an incorrect legal standard to determine that, as residuals of Appellant’s service-connected head injury, a separate service-connection award would constitute impermissible pyramiding under 38 C.F.R. § 4.14.” In addition, the Joint Motion discussed that “[f]urther, this finding was internally inconsistent with the Board’s recognition that “any residual of a traumatic brain injury (TBI) with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache …, is to be separately evaluated,” with reference to the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Joint Motion found that “[r]emand is required for the Board to adjudicate Appellant’s service connection claim for migraine headaches under the correct legal standard under 38 C.F.R. § 4.124a, DC 8045.” Service treatment records document a normal physical examination upon enlistment. Thereafter, in September 1969, the Veteran complained of head trauma with subsequent headaches. He again complained of headaches in April 1970, post-traumatic headaches in July 1970, and headaches (probably from heat) in September 1970. Upon separation examination, a physical examination was again normal, and the Veteran denied any related complaints. Thereafter, the Veteran again denied headaches during a January 1976 quadrennial examination for the National Guard, which was approximately five years following service discharge. Upon VA TBI and Headaches examinations in December 2012, the Veteran reported experiencing headaches in Vietnam after a concussion. He also reported experiencing headaches after being involved in a motor vehicle accident prior to going to Vietnam. He reported experiencing daily headaches, which required treatment with Stanback headache powder. Notably, the VA examiner opined that the Veteran’s headaches were less likely than not due to active service, including the documented in-service complaints of headaches. In support of this opinion, the examiner noted that the Veteran denied headaches during a January 1976 quadrennial examination for the National Guard. As such, the VA examiner opined that the Veteran’s current headaches were likely due to chronic analgesic overuse. However, the December 2012 VA examiner also clearly indicated that the Veteran’s headaches were a residual of his service-connected head injury / TBI. With attention to the concerns explained by the June 2019 Joint Motion, the Board finds that this probative indication that the Veteran’s diagnosed headaches are causally attributable to his service-connected head injury / TBI presents a basis for a grant of service connection for the headaches as secondary to the head injury / TBI. The Board finds no substantially contrary evidence of record. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for the Veteran’s chronic headaches, as secondary to TBI, is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Entitlement to service connection for heart disease, to include hypertensive heart disease or ischemic heart disease claimed as due to presumed exposure to herbicide agents, is remanded. The June 2019 Joint Motion discussed its finding that “the Board … failed to provide an adequate statement of reasons or bases for its finding that Appellant did not have a diagnosis of ischemic heart disease.” In this regard, the Joint Motion directs attention to the fact that “[t]he record contains references to ‘HTN Heart Disease” that the Board failed to address…. These records appear to indicate a diagnosis of hypertensive heart disease.” Significantly, the Board’s June 2018 decision included a remand of a claim of entitlement to service connection for hypertension. The June 2019 Joint Motion strongly suggests that the heart disability service connection claim before the Board has a scope of consideration that may encompass the Veteran’s diagnosed hypertensive heart disease. In light of this, it now appears that the outcome of the claim of entitlement to service connection for a heart disability, including hypertensive heart disease, may be significantly impacted by the pending claim of entitlement to service connection for hypertension that is currently in processing at the RO after having been remanded by the Board’s June 2018 decision. Accordingly, the issues are inextricably intertwined. A remand of the issue of entitlement to service connection for heart disease, including hypertensive heart disease, is required. The Court has held that two issues are inextricably intertwined when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board must defer final adjudication of the claim seeking to establish entitlement to service connection for heart disease, including hypertensive heart disease, until the development and RO readjudication concerning his requested entitlement to service connection for hypertension has been completed. The matters are REMANDED for the following action: 1. Obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA and private treatment records. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue of entitlement to service connection for heart disease, to include hypertensive heart disease, with attention to the inextricably intertwined pending claim of entitlement to service connection for hypertension. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.