Citation Nr: 21075858 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-03 574 Date: December 21, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for severe arthritis of the lower back. Entitlement to service connection for hypertension. Entitlement to service connection for GERD. Entitlement to service connection for a disorder of the bilateral shoulders. Entitlement to service connection for left index trigger finger. Payment of special monthly compensation (SMC) based on the need for aid and attendance/housebound status. FINDINGS OF FACT 1. The Veteran served on active duty from November 1965 to November 1967, to include service in the Republic of Vietnam. He has been 100 percent disabled since June 2011. 2. In an unappealed March 2012 rating decision, the Regional Office (RO) denied, among other things, service connection for GERD. 3. The evidence submitted since the March 2012 decision reflected a diagnosis of GERD and suggested a nexus to service. CONCLUSIONS OF LAW 1. The March 2012 RO rating decision, which denied service connection for GERD, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the March 2012 rating decision is new and material; the claim for GERD is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board on appeal of March 2015, May 2015, and January 2016 rating decisions by a Department of Veterans Affairs Regional Office (RO). In a January 2018 VA Form 9, the Veteran requested a videoconference hearing before a Veterans Law Judge; however, in September 2021, the request for a hearing was withdrawn. Finally, the January 2016 rating decision also denied a claim for service connection for a skin disorder. The Veteran did not note this issue on his September 2016 notice of disagreement (NOD) with that decision or file a separate NOD for the skin disorder claim. Nevertheless, with a January 2018 VA Form 9, he provided medical evidence in support of his skin disorder claim. Therefore, the Board REFERS the skin disorder claim to the RO for appropriate action. Turning to the issues on appeal, regarding the hypertension, service connection was denied in a March 2015 rating decision. Within a year of the denial, the Veteran submitted new and material evidence regarding the claim, and the claim was reconsidered in the January 2016 rating decision. When new and material evidence is received within a year of an adverse rating decision, the evidence and subsequent adjudication relate back to the original decision. Hence, it is the March 2015 rating decision and the original service connection claim on appeal with regard to the hypertension, and the Board will not adjudicate reopening of the claim. Turning to the GERD, prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). In March 2012, the RO issued a decision denying the original claim for service connection for GERD on the basis that the evidence did not show an event, disease, or injury in service, and did not establish a link between the GERD and service. Since that decision, additional VA and private treatment notes have been received, including an August 2016 opinion by Dr. TW relating the Veteran's GERD to his military service. Therefore, new evidence has been received that relates to an unestablished fact as of the March 2012 rating decision and raises a reasonable possibility of substantiating the claim. Accordingly, the claim for service connection for GERD is reopened, and to that extent the appeal is granted. REASONS FOR REMAND Initially, the January 2016 rating decision denied a claim for service connection for severe arthritis of the lower back. The September 2016 NOD listed only arthritis among the issues being appealed, but the attached arguments regarding the arthritis list both the shoulders and lower back. However, the December 2016 SOC did not address the lower back arthritis claim, and the file does not otherwise reflect that the AOJ considered the lower back claim on appeal. Therefore, the Board remands the issue for adjudication in an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). A review if the evidence received in connection with the service connection claims for GERD, hypertension, arthritis of the right and left shoulders, and trigger finger of the left hand demonstrates that a remand is necessary to allow for further development of the claims. Specifically, VA opinions as to the etiology of these disabilities were not obtained. VA must provide an examination or obtain an opinion where the information and evidence does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of a current disability, establishes an in-service event, injury or disease, or the presence of a presumptive disease during the pertinent period, and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A March 2016 opinion by Dr. EWH indicated that the Veteran's service-connected PTSD caused or contributed to hypertension. A July 2016 opinion by Dr. RNS related the right and left shoulder disorders and the left finger disorder to service. Further, the August 2016 opinion by Dr. TW related the GERD to service as discussed above, as well as indicated that the hypertension was caused by service. Accordingly, the low threshold for scheduling a VA examination has been met for these claims, and the issues are remanded. As for the appeal for payment of SMC based on the need for aid and attendance, this claim is in part dependent on the service-connected disabilities. Therefore, a determination as to that appeal is intertwined with the service connection claims being remanded. The matters are REMANDED for the following actions: 1. Issue an SOC in response to the September 2016 NOD filed with the denial of entitlement to service connection for severe arthritis of the lower back in the January 2016 rating decision. 2. Direct the claims file to a clinician or clinicians to address the following: Is it at least as likely as not (a 50% probability or more) that the Veteran has hypertension that was incurred in service? In the alternative, is it at least as likely as not (50% probability or more) that the Veteran has hypertension that was caused or aggravated beyond normal progression by PTSD or one or more of his other service-connected disabilities? Is it at least as likely as not (a 50% probability or more) that the Veteran has GERD that was incurred in service? Is it at least as likely as not (a 50% probability or more) that the Veteran has a disorder of the right shoulder that was incurred in service? Is it at least as likely as not (a 50% probability or more) that the Veteran has a disorder of the left shoulder that was incurred in service? Is it at least as likely as not (a 50% probability or more) that the Veteran has an index trigger finger of the left hand that was incurred in service? The rationale for any opinion expressed must be provided. In forming the opinion(s), the clinician(s) must consider all relevant evidence in the claims file, including the Veteran's arguments and lay statements as to his medical history. In addition, the clinician(s) is/are advised that the questions of causation and aggravation are distinct, and the rationales provided should also be distinct. If the clinician(s) is/are unable to provide the opinions requested, he or she should explain why. 3. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.