Citation Nr: 20006889 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-28 616 DATE: January 28, 2020 ORDER An effective date prior to December 16, 2016 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. New and material evidence having been received, the previously denied claim for service connection for coronary artery disease status post heart attack (CAD), to include secondary to service-connected disabilities is reopened. The claim of service connection for degenerative arthritis of spine (claimed as lower back injury) is denied. REMANDED The claim of service connection for coronary artery disease (CAD) is remanded. The claim of service connection for diverticulosis is remanded. The claim of service connection for gastroesophageal reflux disease (GERD is remanded. The claim of service connection of obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. A September 2017 rating decision granted service connection for PTSD, with an effective date of December 16, 2016; the date on which it was shown that VA had received the Veteran’s initial claim for PTSD. 2. The evidence received since the September 2013 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a CAD condition, to include secondary to service-connected disabilities is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s degenerative arthritis of the low back did not have onset during or within one year of separation from active service; it is less likely than not related to any incident of active service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 16, 2016 for service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The September 2013 rating decision denying service connection for CAD is final. 38 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received since the September 2013 rating decision that is sufficient to reopen the Veteran’s claim of entitlement to service connection for a CAD disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The criteria for service connection for degenerative arthritis of the low back are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to December 1994. This appeal comes before the Board of Veterans Appeals (Board) from a March 2017, rating action. Within a year of the March 2017 rating decision, the Veteran submitted duplicate service connection claims (PTSD, low back, CAD, diverticulosis and GERD) for reopening/reconsideration. As such, a July 2017 and September 2017 rating decision were issued prior to his March 2018 timely Notice of Disagreement (NOD). 1. Earlier Effective Date - PTSD In a September 2017 rating decision, the Veteran’s claim for service connection for PTSD was granted during the pendency of the claim and he was assigned a 70 percent disability rating effective December 16, 2016. In the March 2018 notice of disagreement, the Veteran contested both service connection of PTSD, and the effective date of the award. Shortly thereafter, the Veteran’s attorney submitted a statement clarifying that the Veteran only sought to appeal the effective date of that award. Therefore, the issue before the Board is whether December 16, 2016 is the proper effective date for the Veteran’s claim for service connection for PTSD. The Board concludes that December 16, 2016 is the earliest effective date as a matter of law. VA regulations provide that the effective date for service connection based on claims received more than one year after discharge from active duty is the date of receipt of claim or the date entitlement arose, whichever is later 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The Veteran separated from active duty service in December 1994. VA received the Veteran’s initial claim for PTSD on December 16, 2016, which is more than one year after he separated from service. Furthermore, upon review of the record, the Veteran filed a July 2015 VA 21-0966 intent to file form for compensation. The Veteran was informed in a VA notification letter dated in July 2015 that if his completed application is received within one year from the date that his intent to file was received and VA decided that he was entitled to VA benefits, VA may be able to compensate him from the date VA received his intent to file. However, if his completed application was not received within one year from the date the intent to file was received and VA decided that he was entitled to VA benefits, the Veteran was informed that VA could only compensate him from the date VA received the completed application. Here, the Veteran submitted his intent to file to VA in July 2015. However, his complete claim for service connection for PTSD was not received in until December 16, 2016, more than one year after he had filed his intent to file form. Thus, the Veteran’s completed December 2016 application did not meet the criteria for consideration of the earlier July 2015 intent to file date and the December 16, 2016 filing date is earliest effective date in this case. The Board notes that on behalf of the Veteran, his representative stated in his September 2019 brief that he has no argument in furtherance of appellate consideration. The Board finds that the effective date of service connection was properly assigned from December 16, 2016, the date of receipt of his claim. Accordingly, the claim for an earlier effective date prior to December 16, 2016 is denied. 2. New and Material Evidence – Coronary Artery Disease The Veteran seeks to reopen a previously denied claim for service connection for a CAD disability. Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. 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. 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. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Veteran’s claim of entitlement to service connection for CAD was denied in September 2013. The Veteran did not appeal the September 2013 rating decision, nor did he submit any new and material evidence within a year of the September 2013 rating decision. See 38 C.F.R. § 3.156 (b). The September 2013 rating decision thereby became final. At the time of the September 2013 rating decision, the record consisted of the Veteran’s service treatment records, VA treatment records, 2012 VA heart examination, and private treatment records. Evidence received since the September 2013 rating decision includes VA and private treatment records, a report from a July 2017 VA mental health examination, and a September 2019 brief from the Veteran’s representative asserting that his CAD had been aggravated (made worse) by his service connected psychiatric disability. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claim is reopened. 3. Service connection of a low back disability The Veteran seeks service connection of a low back disability. The Board finds that the claim should be denied. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran has a present diagnosis of degenerative arthritis of the spine. As an initial matter, the Board recognizes that there is no medical evidence that the Veteran’s arthritis was manifested to a compensable degree within one year of separation from active service. Neither is there any medical evidence of recurrent back pain since separation from active service. Indeed, the medical record is silent for 22 years following service. While the Veteran has inferred low back pain since service, the Board recognizes that he is competent to testify as to such symptoms. However, once competency is established, the Board must consider credibility of that testimony. In this matter, given the general inconsistency with the medical evidence, and other factors such as time of recollection, lay statements made during treatment, and self-bias, the Board finds these statements to be less than credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). As such, the Board finds that service connection on a presumptive basis is not supported in this matter. The Board does recognize treatment in 1986 for low back pain, and a notation of intermittent low back pain on his separation physical. In light of this, the Veteran was afforded a VA examination in January 2017. At that time, the examiner diagnosed degenerative arthritis of the spine. At that time the Veteran denied any specific incident in service, just onset of back pain, for which he sought treatment (as confirmed by his service treatment records). Following separation, he reported his occupation to be industrial maintenance, inspection, and audits. He als denied any injuries after service. The examiner considered the entire medical record, to include the Veteran’s own lay statements and service treatment records, and concluded that the Veteran’s present low back arthritis was less likely than not incurred in or otherwise related to his complaints of low back pain. As a rationale, the examiner stated that while the Veteran had occasional back pain during service, there was no evidence of any medical treatment for a low back disability since separation. The current evidence, to include imaging, showed natural degenerative changes. Given the Veteran’s longstanding history of obesity, there was no objective medical evidence that the Veteran had a chronic or disabling condition during service or shortly after separation. The Board finds this opinion persuasive. It was rendered by a medical specialist in contemplation of the complete medical record and known medical principles. The Board has reviewed the other evidence of record but finds no medical opinions or evidence to contradict the VA examiner’s opinion. In this respect, the Board does recognize the Veteran’s his own attorney’s statements that his present low back arthritis is related to service. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran and his attorney are lay persons without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his low back arthritis, especially in light of the VA examiner’s conclusions to the contrary. See id. In sum, the Board finds that the Veteran’s present degenerative arthritis of the low back is not related to any incident of active service. Neither did it have onset during or within one year of separation from active service. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection of CAD 2. Service connection of diverticulosis 3. Service connection of GERD The Veteran seeks service connection for CAD, diverticulosis and GERD disabilities. On the behalf of the Veteran, his representative submitted a September 2019 brief asserting that he is entitled to service connection for his CAD, diverticulosis and GERD disabilities as a result of his acquired psychiatric condition. As noted above, the Veteran’s claim for service connection for PTSD was granted during the pendency of the appeal. The representative asserts that it has been well established and confirmed by scientific evidence and research that a mental health condition can perpetuate increased symptoms of CAD, diverticulosis and GERD conditions. Upon review of the record including the VA examinations, VA and private treatment records, the Veteran has a current diagnosis for CAD, diverticulosis and GERD disabilities. In addition, the Veteran claims that his GERD conditions are due to or made worse by his service-connected irritable bowel syndrome (IBS). The Veteran is service connected for IBS at 30 percent disabling effective April 2012. The Board cannot make a fully-informed decision on the issues of service connection for CAD, diverticulosis and GERD disabilities because no VA examiner has addressed whether these disabilities are secondary (either directly caused by, or aggravated beyond natural progression) to the Veteran’s service-connected disabilities including PTSD and IBS. Regarding the Veteran’s CAD claim, a VA examiner did provide an opinion and rationale addressing direct service connection and service connection as an undiagnosed illness, but the examiner did not address the possibility of secondary service connection. 4. Service connection of OSA Regarding the claim of entitlement to service connection of OSA, the Veteran submitted a timely notice of disagreement with a July 2017 rating decision, but a statement of the case has not yet been issued (although a July 2018 correspondence indicates acknowledgement of the Veteran’s June 2018 notice of disagreement, a statement of the case has yet to be issued) A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Send the Veteran and his representative a statement of the case that addresses the issue of service connection of OSA. 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. 3. Obtain a medical opinion to determine the etiology of the Veteran’s CAD, diverticulosis and GERD disabilities. If the Board’s questions are unable to be answered without examinations, then one should be scheduled. The examiner should answer the following questions: • Is it at least as likely as not (50 percent or greater) that the Veteran’s CAD, diverticulosis and GERD disabilities were due to, caused by or aggravated (made worse) by a service-connected disability, to include the Veteran’s acquired psychiatric condition? In so doing the examiner should take into account the Veteran’s 2016 psychiatric VA examination and the representatives September 2019 brief, including his footnotes and assertion that that it has been well established/confirmed by scientific evidence and research that a mental health condition can perpetuate increased symptoms of CAD, diverticulosis and GERD conditions. • In addition, the examiner should answer whether it is at least as likely as not (50 percent or greater) that the Veteran’s GERD condition was due to, caused by or aggravated (made worse) by a service-connected disability, to include the Veteran’s IBS. In so doing, the examiner should take into account the Veteran’s August 2013 Intestinal Conditions Disability Benefits Questionnaire (DBQ) and the Veteran’s representatives September 2019 brief, including his assertion that that scientific evidence has confirmed a strong overlap between GERD and IBS, claiming that scientific research shows similarities exist including derangements of mucosal defensive, mild inflammation and visceral hypersensitivity. If aggravation is found for any of the claimed disabilities, the examiner should identify the baseline level of severity of the CAD, diverticulosis and GERD disabilities 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 CAD, diverticulosis and GERD disabilities. If such cannot be done, then it should be explained why. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, Associate 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.