Citation Nr: 20051827 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 19-00 667A DATE: August 5, 2020 ORDER New and material evidence having been received, the claim of service connection for a stomach disorder is reopened; to this limited extent, the appeal is granted. New and material evidence having been received, the claim of service connection for thrombophlebitis of the right leg is reopened; to this limited extent, the appeal is granted. New and material evidence having been received, the claim of service connection for a back disorder is reopened; to this limited extent, the appeal is granted. New and material evidence having been received, the claim of service connection for a cardiovascular disorder, to include hypertension, is reopened; to this limited extent, the appeal is granted. REMANDED Service connection for a stomach/gastrointestinal disorder, including schistosomiasis. Service connection for a right leg disorder, to include thrombophlebitis. Service connection for a back disorder. Service connection for a cardiovascular disorder, including hypertension. An initial rating higher than 30 percent for major depressive disorder (MDD). A compensable rating for a linear scar of the right leg. A rating higher than 10 percent for a scar/skin fibrosis of the right leg. REASONS AND BASES FOR DECISIONS The Veteran served on active duty from January 1966 to January 1968. In addition, he had service in the Puerto Rico Army National Guard. The case is on appeal from March 2017 and January 2018 rating decisions. In December 2017, the Board of Veterans’ Appeals (Board) granted service connection for MDD and remanded claims to reopen service connection for a stomach disorder, thrombophlebitis of the right leg, a back disorder, and hypertension, along with the higher rating claim for a linear scar of the right leg and a scar/skin fibrosis of the right leg, for the issuance of a statement of the case. In a January 2018 rating decision, the Regional Office (RO) implemented the Board’s grant of service connection for MDD. The Veteran appealed the initial 30 percent rating assigned. The Board notes that although the Veteran checked boxes indicating disagreement with evaluations for a stomach/gastrointestinal disorder, thrombophlebitis of the right leg, a back disorder, and hypertension as areas of disagreement in the March 2017 notice of disagreement (NOD), only service connection is currently at issue for those disorders. The Board has broadened the claims with respect to a stomach disorder, a right leg disorder, a back disorder, and hypertension as reflected above to comport with the evidence and the Veteran’s assertions. See May 2020 substantive appeal; May 2017 NOD; January 2019 VA treatment records; January 2017 private treatment records. The claims to reopen service connection for a stomach/gastrointestinal disorder, thrombophlebitis of the right leg, a back disorder, and a cardiovascular disorder, to include hypertension, are addressed in the decision below. The reopened service connection claims, along with the higher rating claims for MDD, a linear scar of the right leg, and a right leg scar/skin fibrosis of the right leg, are addressed in the remand section. 1. Whether new and material evidence has been received to reopen a claim of service connection for a stomach disorder. An appeal to reopen a claim of service connection for a stomach disorder was most recently denied in a November 2013 Board decision. No appeal was taken from that decision, and it is final. 38 U.S.C. § 7104. The Veteran filed to reopen the claim of service connection for a stomach disorder in December 2016, asserting that it is related to service, or is secondary to service-connected MDD, to include prescribed medications. See May 2020 substantive appeal. In view of the recent grant of service connection for MDD in a December 2017 Board decision, together with VA treatment records in January 2019 reflecting prescribed psychiatric medications and gastrointestinal symptoms, the Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a stomach disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also, January 2017 private treatment records. The underlying service connection claim is addressed in the remand below. 2. Whether new and material evidence has been received to reopen a claim of service connection for thrombophlebitis of the right leg. By a November 2002 rating decision, a claim to reopen service connection for thrombophlebitis of the right leg was denied. It is assumed the Veteran received notice of the decision based on the presumption of regularity. Furthermore, he has not argued to the contrary. Thereafter, nothing further regarding the claim was received until the present claim to reopen in December 2016. No new evidence or NOD was received by VA within one year of the issuance of the November 2002 rating decision. Correspondence and evidence received during this time period pertained to other claims. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The threshold to reopen a claim is low and does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, VA is required to presume the credibility of newly submitted evidence for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for thrombophlebitis of the right leg is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also May 2020 substantive appeal; January 2019 VA treatment records; January 2017 private treatment records. The underlying service connection claim is addressed in the remand below. 3. Whether new and material evidence has been received to reopen a claim of service connection for a back disorder. An appeal to reopen a claim of service connection for a back disorder was most recently denied in a November 2013 Board decision. No appeal was taken from that decision, and it is final. 38 U.S.C. § 7104. The Veteran filed a claim to reopen in December 2016. Although evidence previously of record notes no particular incident during service to cause back pain, see September 2005 VA examination report, the Veteran stated that his back disorder is a result of a motor vehicle accident during service. See May 2020 substantive appeal. As noted above, the threshold to reopen a claim is low and does not require new and material evidence as to each previously unproven element of a claim, and the credibility of the new evidence is presumed. When considered with evidence already of record, the Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a back disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); May 2020 substantive appeal; January 2019 VA treatment records. The underlying service connection claim is addressed in the remand below. 4. Whether new and material evidence has been received to reopen a claim of service connection for a cardiovascular disorder, to include hypertension. By a June 1998 rating decision, a claim to reopen service connection for a cardiovascular condition, to include hypertension, was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in December 2016. No new evidence or NOD was received by VA within one year of the issuance of the June 1998 rating decision. Correspondence and evidence received during this time period pertained to other claims. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. As above, the threshold to reopen a claim is low and does not require new and material evidence as to each previously unproven element of a claim the credibility of newly submitted evidence is presumed for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Shade, Justus. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a cardiovascular condition, to include hypertension, is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also, May 2002 substantive appeal; January 2019 VA treatment records; January 2017 private treatment records. The underlying service connection claim is addressed in the remand below. REASONS FOR REMAND 1. Service connection for a stomach/gastrointestinal disorder. The Veteran seeks service connection for a stomach/gastrointestinal disorder, to include as secondary to required medications for his service-connected MDD. See May 2020 substantive appeal. The Veteran stated that he self-treated for stomach pain during service due to pressure not to go to sick call. See August 2016 correspondence. An April 1968 VA examination report reflect diagnoses of psychophysiologic gastrointestinal reaction and schistosomiasis. See December 2016 Medical Treatment Record. VA treatment records in January 2019 reflect the Veteran’s history including hepatocellular disease, gastritis, Helicobacter Pylori infection, and an intestinal obstruction, and medication was prescribed for gastroesophageal reflux disorder (GERD). In addition, the records reflect prescribed psychiatric medications. As noted above, the Veteran is service-connected for MDD. In view of the evidence and the Veteran’s assertions, the Board finds that VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Service connection for thrombophlebitis of the right leg. The Veteran seeks service connection for thrombophlebitis of the right leg. He maintains that his right leg symptoms are related to service, including a motor vehicle accident. The Veteran’s service treatment records (STRs) reflect a motor vehicle accident resulting in thrombophlebitis in 1967, and the Veteran’s service-connected scar of the right leg is a residual of the accident. See September 1968 rating decision. In addition, VA treatment records in January 2019 reflecting varicose veins note possible localized right lower distal leg phlebitis. In view of the evidence and the Veteran’s assertions, the Board finds VA examination is warranted. McLendon, 20 Vet. App. 79. 3. Service connection for a back disorder. The Veteran maintains that a back disorder is related to service, to include a motor vehicle accident, or is secondary to right leg thrombophlebitis and/or a service-connected scar of the right leg. See May 2020 substantive appeal; February 2005 Statement in Support of Claim. As noted above, the Veteran’s STRs reflect an in-service motor vehicle accident in 1967. In addition, VA treatment records in January 2019 reflect back pain and the assessment was degenerative changes of the lumbar spine. Further, the Veteran is service connected for a scar/skin fibrosis of the right leg and a linear scar of the right leg. In view of the evidence and the Veteran’s assertions, the Board finds VA examination is warranted. McLendon, 20 Vet. App. 79. 4. Service connection for a cardiovascular disorder, to include hypertension. The Veteran seeks service connection for a cardiovascular disorder, to include hypertension. He maintains that he has been treated for cardiovascular symptoms, including hypertension since separation. See May 2020 substantive appeal; May 2017 NOD; January 2019 VA treatment records; January 2017 private treatment records; July 1997 submission. Private treatment records in January 2017 reflect hypertension and atherosclerosis. VA treatment records in January 2017 reflect a history of coronary artery disease, and January 2019 records reflecting hypertension note that the Veteran receives Social Security Administration (SSA) disability benefits. In view of the evidence and the Veteran’s assertions, the Board finds VA examination is warranted. McLendon, 20 Vet. App. 79. In addition, as the SSA records are potentially relevant to the appeal, on remand, the RO should attempt to obtain the records. See 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 5. An initial rating higher than 30 percent for MDD. Since the Veteran’s April 2016 VA examination, he has submitted evidence suggesting a possible worsening of his MDD. In the January 2019 substantive appeal, he noted psychiatric symptoms, to include panic attacks, a flat affect, and disturbances of mood. VA treatment records in January 2019 reflect MDD with psychotic symptoms, marked anxiety, and symptoms consistent with ruminations. In addition, recent treatment at a Vet Center was noted. The Board finds there is evidence suggesting a possible worsening of psychiatric symptoms since the most recent VA examination. As such, a new VA psychiatric examination is warranted to determine the current nature and severity of his psychiatric disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Because the Vet Center records are pertinent, on remand, the RO should attempt to obtain them. 6. An initial compensable rating for a linear scar of the right leg. 7. A rating in excess of 10 percent for a right leg scar/skin fibrosis. The Veteran maintains that a 20 percent rating is warranted for a linear scar of the right leg and a 40 percent rating is warranted for the other service-connected scar/skin fibrosis of the right leg. See May 2017 NOD. The Board notes that, in addition to the scar/skin fibrosis of the right leg, the RO assigned a separate noncompensable rating for a linear scar of the right leg in a March 2017 rating decision. However, the January 2017 VA scar examination report reflects only one right leg scar, which was noted to be linear and measure 15 cm. As such, the opinion is not completely adequate. Thus, a new VA examination is warranted. In view of the remand, updated VA treatment records should be obtained. In that respect, the March 2020 statement of the case notes VA treatment records through March 2017 were considered. On remand, complete VA treatment records since March 2017 should be obtained and associated with the file. The matters are REMANDED for the following action: 1. Obtain complete VA treatment records since March 2017. 2. After authorization is received, obtain Vet Center records. 3. Obtain from SSA the records pertinent to the Veteran’s claims as well as the medical records relied upon concerning those claims. If the records are not available, the Veteran should be notified of such. 4. Thereafter, schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of a stomach/gastrointestinal condition. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a stomach/gastrointestinal condition, including schistosomiasis, a) had its onset during or within the initial year after service or is otherwise related to an in-service injury, event, or disease, or b) is caused by or aggravated by service-connected MDD, including required medications for such. For any aggravation found, the clinician should state, to the extent possible, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Consideration of the evidence should include the STRs reflecting gastrointestinal reaction and schistosomiasis, VA and private treatment records, and the Veteran’s lay statements. Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. 5. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of thrombophlebitis of the right leg. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current phlebitis of the right leg had its onset during or within the initial year after service or is otherwise related to an in-service injury, event, or disease. Consideration of the evidence should include the STRs reflecting thrombophlebitis, VA and private treatment records, and the Veteran’s lay statements. Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. 6. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of a back disorder. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a back disorder had its onset during or within the initial year after service or is otherwise related to an in-service injury, event, or disease, or is caused by or aggravated by a service-connected scar/skin fibrosis of the right leg. For any aggravation found, the clinician should state, to the extent possible, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Consideration of the evidence should include the STRs, VA and private treatment records, and the Veteran’s lay statements. Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. 7. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of a cardiovascular condition, including hypertension. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a cardiovascular disorder, including hypertension, had its onset during or within the initial year after service or is otherwise related to an in-service injury, event, or disease, or is caused by or aggravated by service-connected MDD. For any aggravation found, the clinician should state, to the extent possible, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Consideration of the evidence should include the STRs, VA and private treatment records, and the Veteran’s lay statements. Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to assess the severity of the service-connected major depressive disorder. Rationale for all opinions expressed should be provided. 8. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to assess the severity of the service-connected linear scar and scar/skin fibrosis of the right leg. The examiner should measure the size of each right leg scar/skin fibrosis and indicate whether it is painful, unstable, deep or superficial, or linear or non-linear. Rationale for all opinions expressed should be provided. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.