Citation Nr: 21031520 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-34 000 DATE: May 24, 2021 ORDER New and material evidence having been received, the petition to reopen the previously denied claim of service connection for hypertension is granted. New and material evidence having been received, the petition to reopen the previously denied claim of service connection for stomach ulcers is granted. New and material evidence having been received, the petition to reopen the previously denied claim of service connection for a right wrist disability (claimed as limitation of motion) is granted. An effective date of January 9, 2014 is granted for the assignment of the 70 percent rating for the service-connected posttraumatic stress disorder (PTSD), to include symptoms of insomnia, flashbacks and major depressive disorder. Entitlement to an earlier effective date, prior to May 1, 2014 for the award of service connection for bilateral hearing loss is denied. Entitlement to an earlier effective date, prior to May 1, 2014 for the award of service connection for bilateral tinnitus is denied. REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or due to the service-connected PTSD is remanded. Entitlement to service connection for stomach ulcers, to include as secondary to the service-connected PTSD is remanded. Entitlement to service connection for a right wrist disability (claimed as limitation of motion) is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected PTSD is remanded. Entitlement to a compensable disability rating for the service-connected Non-Hodgkins Lymphoma is remanded. Entitlement to a compensable disability rating for the service-connected residual right wrist scar status-post shrapnel wound is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In a July 2011 rating decision, the RO denied service connection for hypertension; notice of that decision was provided to the Veteran that same month. The Veteran did not appeal the July 2011 rating decision or submit new and material evidence during the appeal period of that decision 2. Evidence received since the July 2011 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. 3. In a November 2011 rating decision, the RO denied service connection for stomach ulcers (claimed as secondary to insomnia due to flashbacks) and rheumatoid arthritis of the right wrist (also claimed as right wrist limitation of motion and secondary to exposure to herbicide agents); notice of that decision was provided to the Veteran that same month. The Veteran did not appeal the November 2011 rating decision or submit new and material evidence during the appeal period of that decision 4. Evidence received since the November 2011 rating decision is new and relates to an unestablished fact necessary to substantiate the claims for service connection for stomach ulcers and a right wrist disability (claimed a limitation of motion). 5. On January 9, 2014, VA received the Veteran's claim for an increased rating for his service-connected PTSD, to include symptoms of insomnia, flashbacks and major depressive disorder. 6. The Veteran's original claim for service connection for bilateral tinnitus and bilateral hearing loss was received by VA on May 1, 2014; there were no formal or informal claims for tinnitus and/or hearing loss prior to that date. CONCLUSIONS OF LAW 1. The July 2011 and November 2011 rating decisions are final with respect to the Veteran's claims to establish service connection for hypertension, stomach ulcers and a right wrist disability (claimed as limitation of motion); new and material evidence has been received to reopen the claims for service connection for hypertension, stomach ulcers and a right wrist disability (claimed as limitation of motion). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for an effective date of January 9, 2014 for the assignment of the 70 percent rating for the service-connected PTSD, with symptoms of insomnia, flashback and major depressive disorder have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to May 1, 2014 for the awards of service connection for bilateral hearing loss and tinnitus have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to February 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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. 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 to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). For the purposes of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for hypertension is granted. In a July 2011 rating decision, the RO denied service connection for hypertension, to include as due to exposure to herbicide agents based upon a finding that the Veteran's hypertension was neither incurred in or aggravated by service, nor was hypertension on the list of conditions that VA has determined are presumptively due to exposure to herbicide agents. The Veteran was provided notice of the decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received since the July 2011 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. Specifically, during his September 2019 hearing on the matter, the Veteran testified that he developed hypertension in the year 2000. The Veteran's representative stated that episodes of anxiety can cause drastic spikes in blood pressure and many times when the Veteran has anxiety, it causes his blood pressure to spike. The representative further stated that if these separate spikes occur frequently, such as every day, they [the spikes in blood pressure] can cause damage to an individual's blood vessels to the heart and kidney, a pathway to chronic blood pressure. This evidence is new. It is also material as it contributes to a more complete picture surrounding the origins of the Veteran's hypertension. Accordingly, the claim is reopened and must be considered on the merits. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for stomach ulcers is granted. 3. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a right wrist disability (claimed as limitation of motion) is granted. In a November 2011 rating decision, the RO denied service connection for rheumatoid arthritis of the right wrist (claimed as right wrist limitation of motion), to include as due to exposure to herbicide agents based upon a finding that the Veteran's rheumatoid arthritis of the right wrist was not caused or aggravated by service, nor was rheumatoid arthritis on the list of conditions that VA has determined are presumptively due to exposure to herbicide agents, nor had the right wrist rheumatoid arthritis manifested within one year post-service such that service connection could be granted on a presumptive basis. The RO also denied service connection for stomach ulcers based upon a finding that the Veteran's stomach ulcers were not caused or aggravated by service, nor had the stomach ulcers manifested within one year post-service such that service connection could be granted on a presumptive basis. The Veteran was provided notice of the decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received since the November 2011 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. Specifically, during his September 2019 hearing on the matter, the Veteran testified that he started experiencing ulcers after he developed the lymphoma and that stress also brings about his ulcers. He also testified that he had problems with his right wrist following his separation from service which have continued since that time. This evidence is new. It is also material as it contributes to a more complete picture surrounding the origins of the Veteran's stomach ulcers and right wrist disability (claimed as limitation of motion). Accordingly, the claims are reopened and must be considered on the merits. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Effective Date Claims Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). A "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2018). A formal claim is a specific claim in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Also, any communication or action indicating the intent to apply for a benefit under the laws administered by the VA may be considered an informal claim, provided that it identifies generally, although not necessarily with specificity, the benefit sought. 38 C.F.R. §§ 3.1(p), 3.155. An appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A timely substantive appeal is one filed in writing within 60 days from the date the SOC was mailed, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed. 38 C.F.R. § 20.302(b). 4. Entitlement to an earlier effective date, prior to May 1, 2014 for the assignment of the 70 percent rating for the service-connected PTSD is granted. The Veteran claims he is entitled to an effective date of October 2009 for his service-connected PTSD. In this case, a July 2011 rating decision granted service connection for PTSD, to include symptoms of insomnia and flashbacks and assigned a 30 percent disability rating, effective from October 7, 2010 (the date the RO determined that it received the Veteran's claim for compensation). The Veteran did not submit a notice of disagreement with the rating decision and as such, an appeal as to the July 2011 rating decision was not perfected. Accordingly, the July 2011 rating decision became final. See 38 C.F.R. § 20.1103 (a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in 38 C.F.R. § 20.302). Thereafter, on January 9, 2014, VA received an informal claim for an increased rating for the Veteran's service-connected PTSD. In this regard, the Veteran submitted an untimely NOD, presumably in response to the July 2011 rating decision. In the explanation section of the form, the Veteran described the symptomology he experiences with his PTSD. At that time, the Veteran also submitted VA Form 21-526EZ wherein the Veteran claimed "insomnia-Agent Orange." On May 1, 2014, VA received the Veteran's statement in support, requesting an increased rating for his PTSD. Per the April 2015 rating decision, which is the subject of this appeal, the Veteran was assigned an increased 70 percent disability rating from May 1, 2014, which was the date the RO determined it received the Veteran's informal claim for compensation. Upon review, the Board finds that the Veteran's claim for an increased disability rating for the service-connected PTSD was received by VA on January 9, 2014. In resolving reasonable doubt in the Veteran's favor, the Board concludes that January 9, 2014 should be the effective date assigned for the assignment of the 70 percent disability rating for the service-connected PTSD. Based on the Board's review of the evidence of record and considering the applicable laws and regulations governing the assignments of effective dates, the Board finds than an effective date prior to January 9, 2014, for the assignment of the 70 percent disability rating for the service-connected PTSD is not warranted in this case. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). 5. Entitlement to an earlier effective date, prior to May 1, 2014 for the award of service connection for bilateral hearing loss is denied. 6. Entitlement to an earlier effective date, prior to May 1, 2014 for the award of service connection for bilateral tinnitus is denied. The Veteran claims he is entitled to an effective date of October 2009 for his service-connected bilateral hearing loss and tinnitus. On May 1, 2014, VA received the Veteran's statement in support requesting service connection for bilateral hearing loss and tinnitus. Service connection was initially granted for bilateral hearing loss and tinnitus in the April 2015 rating decision, and a noncompensable disability rating and 10 percent disability rating were assigned for hearing loss and tinnitus, respectively. The ratings assigned were effective May 1, 2014, the earliest date the RO determined that the Veteran's claim for benefits was received. After thoroughly reviewing the record, the Board finds that prior to May 1, 2014, there were no pending and unadjudicated claims for service connection for hearing loss and/or tinnitus. The October 2009 claim referenced by the Veteran did not include claims for bilateral hearing loss and/or tinnitus. Instead, in October 2009, the Veteran claimed rheumatoid arthritis of ankles, wrist, hip and knees, cancer lymphoma, hypertension/high cholesterol, umbilical hernia repair, glaucoma, and cancer check-ups. In the explanation section, he described that his arthritis resulted from the type of weapon and amount of gear he carried in service, included a claim for stomach ulcer, stated he experiences a loss of appetite due to cancer treatments and that his lymphoma (cancer) resulted from exposure to Agent Orange, and noted that his glaucoma was caused by the combination of his other war-related illnesses. There was no mention of hearing loss or tinnitus. While the Veteran, through his representative, has contended that an earlier effective date is warranted, neither has indicated why an earlier effective date is warranted based on the evidence of record, to include identifying a claim for service connection for bilateral hearing loss and/or tinnitus filed prior to May 1, 2014. Accordingly, May 1, 2014 is the appropriate effective date for service connection for bilateral hearing loss and tinnitus and the Veteran's claims an effective date prior May 1, 2014 for the grant of service connection for bilateral hearing loss and tinnitus must be denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or due to the service-connected PTSD is remanded. 2. Entitlement to service connection for stomach ulcers, to include as secondary to the service-connected PTSD and/or Non-Hodgkin's Lymphoma is remanded. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected PTSD is remanded. During the Veteran's September 2019 hearing, he testified that his hypertension, and erectile dysfunction are secondary to his service-connected PTSD and that his stomach ulcers are secondary to his service-connected PTSD and/or Non-Hodgkin's Lymphoma. Although an opinion was obtained in July 2011 addressing the claim for stomach ulcers, to date, the Veteran has not undergone VA examination in connection with his claims. Further, the 2011 opinion regarding stomach ulcers only addressed whether the ulcers were caused by the service-connected Non-Hodgkin's Lymphoma. In light of the above, the Board finds that the Veteran should be scheduled for VA examinations and opinions should be obtained upon remand. 4. Entitlement to service connection for a right wrist disability (claimed as limitation of motion) is remanded. Most recently, the Veteran underwent VA wrist examination in March 2015. At that time, the examiner provided a negative nexus opinion that the right wrist disability was related to the in-service shrapnel injury. The examiner reasoned that the shrapnel injury occurred in 1968 and treatment noted at that time indicated no residual decrease in range of motion, instead stating full range of motion was observed. The examiner noted that a March 2010 VA hand X-ray shows a metallic fragment as a very tiny density, but it is not at all near the areas of moderate severe arthropathies. In any event, the examiner stated that it is not possible to opined that the tiny metallic penetrating body over the distal ulna is causative at a 50 percent probability level of the observed moderate to severe arthropathy of the proximal carpal bones and radial and ulnar carpal joint. The Board notes that during the Veteran's September 2019 hearing on the matter, he testified that his right wrist pain and limitation of motion since he separated from service which has continued to the present. In light of the above, the Board finds an addendum opinion should be obtained upon remand which considers the Veteran's contentions regarding continuity of symptomology. 5. Entitlement to a compensable disability rating for the service-connected Non-Hodgkins Lymphoma is remanded. 6. Entitlement to a compensable disability rating for the service-connected residual right wrist scar status-post shrapnel wound is remanded. The Veteran last underwent VA examination in connection with his increased rating claims in November 2010 and July 2011. During his September 2019 Board hearing, he testified that his conditions have worsened. In this regard, he stated that his scar is painful and that he suffers from residuals of his cancer. In light of the above, the Board finds that the record as is may not accurately reflect the current severity of the Veteran's service-connected Non-Hodgkin's Lymphoma and residual right wrist scar. Accordingly, the Board finds that the Veteran should be scheduled for VA examinations to address the current severity of his service-connected conditions upon remand. 7. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. Per a March 2017 deferred rating, the RO was to send VA Form 21-4192 to the Veteran's former employer which he listed as Safeway, Inc. on his VA Form 21-8940. However, upon review of the record, the Board finds that the RO never sent the form to the Veteran's former employer. Accordingly, remand is required so that such may be accomplished. Updated treatment records should also be obtained upon remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, the Veteran should be afforded a VA hypertension examination to determine the nature of his hypertension and to obtain an opinion as to whether such is related to service, to include exposure to herbicide agents therein or, alternatively to his service-connected PTSD. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: Is it at least as likely as not (50 percent probability or greater) that the current hypertension arose during service or is otherwise related to service, to include exposure to herbicide agents therein? Please explain why or why not, to include addressing the Veteran's contentions. If not related to service, to include exposure to herbicide agents therein, is it at least as likely as not (50 percent probability or greater) that the current hypertension was caused by the service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions. If not caused by the service-connected PTSD, is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is worsened beyond natural progression (aggravated) by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions. 3. Schedule the Veteran for a VA examination to determine the nature of his stomach ulcers and to obtain an opinion as to whether such is related to service or, alternatively to his service-connected PTSD and/or Non-Hodgkin's Lymphoma. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: Is it at least as likely as not (50 percent probability or greater) that any current stomach ulcers arose during service or is otherwise related to service, to include exposure to herbicide agents therein? Please explain why or why not, to include addressing the Veteran's contentions. If not related to service, to include exposure to herbicide agents therein, is it at least as likely as not (50 percent probability or greater) that any current stomach ulcers were caused by the service-connected PTSD and/or Non-Hodgkin's Lymphoma? Please explain why or why not, to include addressing the Veteran's contentions. If not caused by the service-connected PTSD and/or Non-Hodgkin's Lymphoma, is it at least as likely as not (50 percent probability or greater) that the Veteran's stomach ulcers are worsened beyond natural progression (aggravated) by his service-connected PTSD and/or Non-Hodgkin's Lymphoma? Please explain why or why not, to include addressing the Veteran's contentions. 4. Schedule the Veteran for a VA examination to determine the nature of his erectile dysfunction and to obtain an opinion as to whether such is related his service-connected PTSD. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: Is it at least as likely as not (50 percent probability or greater) that any current erectile dysfunction was caused by the service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions. If not caused by the service-connected PTSD, is it at least as likely as not (50 percent probability or greater) that the Veteran's erectile dysfunction is worsened beyond natural progression (aggravated) by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions. 5. Send the Veteran's claims file to the March 2015 VA wrist examiner, if available, to obtain an addendum medical opinion regarding the Veteran's right wrist disability. If a new examination is required in order to respond to the request, such should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right wrist arose during service or is otherwise related to service. Please explain why or why not, to include addressing the Veteran's contentions that he has experienced right wrist pain and limitation of motion since he separated from service which has continued to the present. 6. Schedule the Veteran for a VA examination to determine the current severity of the service-connected Non-Hodgkin's Lymphoma. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the Non-Hodgkin's Lymphoma should be reported. (Continued on the next page) 7. Schedule the Veteran for a VA scar examination to determine the current severity of the service-connected residual right wrist scar. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the right wrist scar should be reported. 8. Send VA Form 21-4192 to the Veteran's last identified employer. Elicit any information or authorization required from the Veteran. All efforts to obtain such records must be documented in the electronic claims file. If a negative response is received from the employer, document such in the electronic claims file and provide the Veteran and his representative with appropriate notice. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina, 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.