Citation Nr: 21063391 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-02 389 DATE: October 14, 2021 ORDER The previously denied claim for entitlement to service connection for an acquired psychiatric disorder is reopened. The previously denied claim for entitlement to service connection for a substance use disorder is reopened. The previously denied claim for entitlement to service connection for prolapsed rectum is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a substance use disorder is remanded. Entitlement to service connection for prolapsed rectum is remanded. Entitlement to an increased disability rating in excess of 20 percent for appendicitis, post op, with scar, with intra-abdominal, pelvic, and right supra-hepatic abscesses and resection of 13 inches of the jejunum is remanded. FINDINGS OF FACT 1. In a June 1995 rating decision, the Agency of Original Jurisdiction (AOJ) previously considered and denied the claim for service connection for an acquired psychiatric disorder. 2. The Veteran was notified of the June 1995 rating decision and of his appellate rights, but he did not appeal his acquired psychiatric disorder claim. Also, the VA did not receive new and material evidence within one year of the issuance of the rating decision. 3. The Veteran has been incarcerated from November 2005, convicted of a felony crime, and sentenced to confinement through 2031. 4. In an October 2011 rating decision, the AOJ previously considered and denied the claims for service connection for a substance use disorder and prolapsed rectum. 5. The Veteran was notified of the October 2011 rating decision and of his appellate rights, but he did not appeal his service connection claims for a substance use disorder or prolapsed rectum. Also, the VA did not receive new and material evidence within one year of the issuance of the rating decision relating to either claim. CONCLUSIONS OF LAW 1. The June 1995 rating decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20,1103. 2. The evidence submitted since the June 1995 rating decision is new and material, and the issue of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The October 2011 rating decision denying service connection for a substance use disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20,1103. 4. The evidence submitted since October 2011 rating decision is new and material, and the issue of entitlement to service connection for a substance use disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The October 2011 rating decision denying service connection for prolapsed rectum is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20,1103. 6. The evidence submitted since October 2011 rating decision is new and material, and the issue of entitlement to service connection for prolapsed rectum is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to May 1969. These matters come to the Board of Veterans' Appeals (Board) from an August 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). In July 2021, a Board hearing was conducted. The hearing transcript has been associated with the Veteran's file. 1. The previously denied claims for entitlement to service connection for an acquired psychiatric disorder, substance use disorder, and prolapsed rectum are reopened. The questions for the Board are whether the last decision issued by the AOJ that adjudicated entitlement to service connection for an acquired psychiatric disorder, substance use disorder, and prolapsed rectum are final. If so, whether new and material evidence has been received since that final decision that warrants reopening of the entitlement claim(s). The Board finds that new and material evidence has been received that warrants reopening of those claims. To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. "New evidence" means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). "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. Id. 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. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Also, new and material evidence is not required as to each previous unproven element of a claim to reopen. Shade, 24 Vet. App. at 120. Beginning with the Veteran's acquired psychiatric disorder claim, in June 1995, the AOJ issued a rating decision denying the Veteran's service connection claim for any psychiatric disorder(s) due to his in-service surgeries. The AOJ decided the Veteran had submitted evidence that was not materially different than the evidence considered when it denied the Veteran's initial psychiatric disorder claim. At the time the AOJ issued its June 1995 rating decision, the Veteran had not provided any medical records indicating he had a psychiatric disorder due to an in-service surgery. A search of the record shows the Veteran did not appeal the decision or submit new and material evidence related to the claim within a year of being notified it was denied; thus, the Board finds the June 1995 rating decision is final. 38 U.S.C. § 7105(c). Since the June 1995 rating decision, new and material evidence has been added to the record that relates to his acquired psychiatric disorder claim. He has provided a medical record showing a prison mental health professional has diagnosed Post-Traumatic Stress Disorder (PTSD) and attributed it to his in-service injuries. See April 25, 2017, Prison Medical Record by K.S. Without addressing the merits of the evidence, the Board finds this new evidence goes to the issue of a nexus. Given that it is a medical opinion that was not evaluated by the AOJ when it issued the June 1995 rating decision, this evidence raises a reasonable possibility of substantiating his claim. Moving to the Veteran's service connection claims for a substance use disorder and prolapsed rectum, the AOJ issued an October 2011 rating decision denying the those claims. See Rating Decision at 1. Beginning with the Veteran's substance use disorder claim, the AOJ decided the Veteran had not shown he had a substance use disorder due to his in-service surgeries. Id. At that time, the AOJ had not provided the Veteran a VA disability examination nor obtained a medical opinion to help decide the issues. Neither had the AOJ addressed whether a substance use disorder is secondary to a service-connected disability. A search of the record shows the Veteran did not appeal the decision or submit new and material evidence related to the claim within a year of being notified it was denied; thus, the Board finds October 2011 rating decision is final. 38 U.S.C. § 7105(c). Since the October 2011 rating decision, new and material evidence has been added to the record that relates to his substance use disorder claim. During his July 2021 Board hearing, he asserted the disorder is due to residual pain caused by his service-connected appendicitis. See Transcript at 14. Without addressing the merits of the evidence, the Board finds this new evidence goes to the issue of whether the Veteran's substance use disability is secondary to his service-connected appendicitis disability. Given that the VA has not obtained a medical opinion that addresses the question before it issued the October 2011 rating decision, this evidence raises a reasonable possibility of substantiating the claim. With regards to the Veteran's service connection claim for prolapsed rectum, the AOJ concluded that the Veteran had not provided medical evidence he has a prolapsed rectum. See October 2011 Rating Decision at 2. A search of the record shows the Veteran did not appeal the decision or submit new and material evidence related to the claim within a year of being notified it was denied; thus, the Board finds the June 2005 rating decision is final. 38 U.S.C. § 7105(c). Since the October 2011 rating decision, new and material evidence has been added to the record that relates to his prolapsed rectum claim. The Veteran has provided medical records noting the disability. See February 9, 2012, Prison Medical Record by J.H. Without addressing the merits of the evidence, the Board finds this new evidence goes to the issues of whether the Veteran's disability is secondary to his service-connected appendicitis disability. Given that the VA has not obtained a medical opinion that addresses the question before it issued the October 2011 rating decision, this evidence raises a reasonable possibility of substantiating the Veteran's claim. In sum, the VA has obtained new and material evidence for the Veteran's service connection claims for an acquired psychiatric disorder, substance use disorder, and prolapsed rectum., that raises a reasonable possibility of substantiating the Veteran's claims. Accordingly, those claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, substance use disorder, and prolapsed rectum are remanded. Although the Board regrets the delay, the Veteran's claims must be remanded for medical opinions before it is able to decide on their merits. The Veteran has provided competent and credible evidence showing diagnosed psychiatric disorders, substance use disorders, and prolapsed rectum. See Prison Medical Records dated March 2007 (noting prolapsed rectum); June 2014 (noting diagnoses of unspecified bipolar disorder, and alcohol, cannabis, and opioid use disorders); April 2017 (noting diagnosis of PTSD). His service treatment records (STRs) show the in-service surgeries he believes caused his disorders actually occurred. Given that the Board is not qualified to decide whether those disorders are in any way related to the surgeries, a medical opinion is needed to evaluate and decide the claims. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board recognizes the Veteran is incarcerated until 2031 and the VA is unable to provide in-person VA disability examinations. See July 2015 Internal Memorandum. So, the claims file should be made available to an examiner for an opinion without examination to address the medical questions pertaining to each of the entitlement claims. The Board also recognizes the April 2017 prison psychiatric record relates the Veteran's diagnosed PTSD to service; however, when read in context with the rest of the opinion it is not apparent to the Board the mental health professional had the degree of certainty VA regulations require. 38 U.S.C. § 5107(b). Even though the mental health provider diagnosed PTSD, he advised the Veteran to get a second opinion on whether PTSD is a valid diagnosis. The Veteran was also encouraged to consider that a neutral third-party might not come to the same conclusion. See Prison Medical Record by K.S. When the opinion is read as a whole, it is apparent to the Board the mental health professional had some degree of uncertainty about the validity of his diagnosis. Because the mental health professional's opinion does not indicate he had a degree of certainty that closely approximates the "as likely as not" standard, the Board finds the opinion insufficient to evaluate and decide the claim. The Board also notes a search of the records shows the Veteran reported he had received Social Security Administration (SSA) disability benefits at some time in the past. See June 14, 2014, Prison Medical Record by M.F., MD at 1. On remand, the AOJ should try to get SSA records that are relevant to the Veteran's acquired psychiatric disorder, substance abuse disorder, and prolapsed rectum claims. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). 2. Entitlement to an increased disability rating in excess of 20 percent for appendicitis, post op, with scar, with intra-abdominal, pelvic, and right supra-hepatic abscesses and resection of 13 inches of the jejunum is remanded. The Veteran's increased rating claim must also be remanded for a medical opinion before it is able to decide on the merits. Considering the Veteran has reported fecal incontinence while reporting symptoms of prolapsed rectum and his service-connected appendicitis, it is not clear to the Board if leakage is a symptom that is separate and distinct from his service-connected disability. Without more, the Board is unable to determine whether the Veteran's symptomatology constitutes separate disabilities entitling him to ratings under other applicable diagnostic codes. Murray v. Shinseki, 24 Vet. App. 420, 424-28 (2011); 38 C.F.R. § 4.14 (2014) ("The evaluation of the same manifestation under different diagnoses are to be avoided."). Given that the Board is not qualified to determine whether leakage is a symptom of prolapsed rectum or his service-connected appendicitis, the Board must defer adjudication of the claim until a medical opinion is obtained that addresses the matter. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matters are REMANDED for the following action: 1. First, request all SSA records that are relevant to the matters on appeal. The matters on appeal are service connection for an acquired psychiatric disorder, to include bipolar disorder, PTSD; substance abuse disorder; and prolapsed rectum. If the records are unavailable, a negative response must be received from SSA and must be noted in the claims file. 2. Then, send the Veteran's claims file to an appropriate examiner to offer a medical opinion without examination for his service connection claim for an acquired psychiatric disorder, to include PTSD, bipolar disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The Veteran asserts his August 1968 appendectomy and September 1968 laparotomy surgeries are the in-service stressors. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include August 1968 appendectomy and September 1968 laparotomy surgeries. The examiner is asked to provide a response to the following: a. Is PTSD at least as likely as not (50 percent or greater probability) related to service, including August 1968 appendectomy and September 1968 laparotomy surgeries? b. Is the Veteran's diagnosed bipolar disorder at least as likely as not (50 percent or greater probability) related to service, including August 1968 appendectomy and September 1968 laparotomy surgeries? c. If the examiner finds any other psychiatric disorder that has been present at any time on and after November 2014, provide a separate opinion on whether the psychiatric disorder is at least as likely as not (50 percent or greater probability) related to service, including August 1968 appendectomy and September 1968 laparotomy surgeries? d. If the examiner finds any psychiatric disorder is due to the Veteran's service, address whether the Veteran's alcohol or opioid or cannabis use disorders are at least as likely as not (50 percent or greater probability) proximately due to the psychiatric disorder that is related to service? e. Regardless of answer to (d), if the examiner finds any psychiatric disorder is due to the Veteran's service, address whether the Veteran's alcohol or opioid or cannabis use disorders are at least as likely as not (50 percent or greater probability) not aggravated, i.e., worsened beyond its natural progression, by the psychiatric disorder that is related to service. f. Regardless of answers (a) through (e), address whether the Veteran's alcohol or opioid or cannabis use disorders are at least as likely as not (50 percent or greater probability) proximately due to medication(s) administered to deal with residual pain caused by his service-connected appendicitis? g. Regardless of answers (a) through (f), address whether the Veteran's alcohol or opioid or cannabis use disorders are at least as likely as not (50 percent or greater probability) not aggravated, i.e., worsened beyond its natural progression, by medication(s) administered to cope with residual pain caused by his service-connected appendicitis? Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the April 25, 2017, prison psychiatric progress note that diagnosed PTSD and opines it is due to the Veteran's in-service surgeries. The Veteran reported daily thoughts of the surgeries, to include every time he eats. Also, nightmares that occur at a frequency of once a month. The nightmares were described as someone chasing him. See April 25, 2017, Prison Medical Record by K.S. ii. Discuss whether the Veteran has been misdiagnosed with bipolar disorder rather than any other psychiatric disorder, to include PTSD. iii. Discuss the Veteran's lay statements that losing vitals during an in-service surgery was traumatic. iv. Discuss the Veteran's lay statements that the appendectomy and laparotomy were traumatic. 3. Send the Veteran's claims file to an appropriate examiner to offer a medical opinion without examination for his service connection claim for prolapsed rectum. The examiner is asked to provide a response to the following: a. Is the Veteran's prolapsed rectum at least as likely as not (50 percent or greater probability) related to service, including August 1968 appendectomy and September 1968 laparotomy surgeries? b. Regardless of answer to (a), address whether the Veteran's prolapsed rectum is at least as likely as not (50 percent or greater probability) proximately due to his service-connected appendicitis, post op, with scar, with intra-abdominal, pelvic, and right supra-hepatic abscesses and resection of 13 inches of the jejunum? c. Regardless of answer to (b), address whether the Veteran's prolapsed rectum is at least as likely as not (50 percent or greater probability) not aggravated, i.e., worsened beyond its natural progression by his service-connected appendicitis, post op, with scar, with intra-abdominal, pelvic, and right supra-hepatic abscesses and resection of 13 inches of the jejunum? Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Address whether the symptoms the Veteran has reported when discussing prolapsed rectum (to include fecal incontinence, bloody stool) are separate and distinct symptoms from the symptomatology of his service-connected appendicitis, post op, with scar, with intra-abdominal, pelvic, and right supra-hepatic abscesses and resection of 13 inches of the jejunum? 4. Send the Veteran's claim file for a medical opinion that addresses the current severity of the Veteran's service-connected appendicitis, post op, with scar, with intra-abdominal, pelvic, and right supra-hepatic abscesses and resection of 13 inches of the jejunum. The examiner must indicate he or she reviewed the Veteran's claims file. The examiner is asked to respond to the questions below. The examiner should provide a rationale to support the responses. a. Clarify whether fecal leakage, soft stool, is part of the Veteran's service-connected appendicitis disability. If so, comment on the severity of such symptoms. b. Address whether the Veteran's prison medical records, from November 2013, reflect evidence of definite interference with absorption and nutrition. c. Discuss whether difficulties eating, to include having to eat small meals slowly is a function of interference with absorption and nutrition. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.