Citation Nr: 22016265 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-29 511 DATE: March 21, 2022 ORDER Entitlement to an effective date prior to December 30, 2015 for the grant of service connection for coronary artery disease is denied. The application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. Service connection for depression and anxiety is granted. The application to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. The application to reopen a claim of entitlement to service connection for a disability of the eyes is granted. The application to reopen a claim of entitlement to service connection for left foot disability is granted. Service connection for left foot calcaneal spur is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for disability of the eyes is remanded. Entitlement to service connection for a sinus disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for a prostate disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to a compensable rating for hemorrhoids is remanded. Entitlement to a rating in excess of 10 percent for hypertension is remanded. Entitlement to a compensable rating for headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 10, 2017 is remanded. FINDINGS OF FACT 1. A September 2014 rating decision denied the Veteran's application to reopen a claim of service connection for ischemic heart disease; the Veteran did not file a notice of disagreement with that decision. 2. After the September 2014 rating decision, the Veteran first filed an application to reopen a claim for service connection for ischemic heart disease on December 30, 2015. 3. The Veteran's application to reopen a claim for service connection for psychiatric disability was denied in a September 2014 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within one year. 4. Since September 2014, evidence that was not previously considered and that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the psychiatric disability, has been received. 5. The Veteran's depression and anxiety had its onset in and is related to service. 6. The Veteran's claim for service connection for hearing loss was denied in a September 2014 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within one year. 7. Since September 2014, evidence that was not previously considered and that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the hearing loss disability, has been received. 8. The Veteran's application to reopen a claim for service connection for a disorder of the eyes was denied in a September 2014 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within one year. 9. Since September 2014, evidence that was not previously considered and that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the eyes disability, has been received. 10. The Veteran's claim for service connection for left foot disability was denied in a January 2017 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within one year. 11. Since January 2017, evidence that was not previously considered and that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the left foot disability claim, has been received. 12. The Veteran's left heel pain has been continuously present since service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 30, 2015 for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The September 2014 rating decision that denied the Veteran's application to reopen the claim of service connection for psychiatric disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen a claim of entitlement to service connection for psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for depression and anxiety have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 5. The September 2014 rating decision that denied the Veteran's application to reopen the claim of service connection for hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The September 2014 rating decision that denied the Veteran's application to reopen the claim of service connection for disability of the eyes is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 8. New and material evidence has been received to reopen a claim of entitlement to service connection for disability of the eyes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The January 2017 rating decision that denied the Veteran's claim of service connection for left foot disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 10. New and material evidence has been received to reopen a claim of entitlement to service connection for left foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 11. The criteria for entitlement to service connection for left foot calcaneal spur have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a Board videoconference hearing in August 2020, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. The record was held open for 60 days and additional evidence (including private medical records) has been received. 1. Entitlement to an effective date prior to December 30, 2015 for the grant of service connection for coronary artery disease. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The Veteran's claim to reopen his ischemic heart disease claim was received on December 30, 2015. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(r), 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447, 452 (2004). The Veteran filed a claim for service connection for ischemic heart disease in December 2010. A July 2011 rating decision denied the claim, and a September 2014 RO decision declined to reopen the ischemic heart disease claim. The Veteran was notified of the denial, with appellate rights, and did not appeal. The September 2014 rating decision therefore was final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran's application to reopen a claim for service connection for heart disease (now characterized as coronary artery disease) was received by VA on December 30, 2015. Although the Veteran's application to reopen the claim was denied in September 2016, the RO determined that the Veteran submitted new and material evidence in October 2016 and thus essentially indicated that the September 2016 rating decision was not final. A January 2017 rating decision granted service connection for coronary artery disease, effective December 30, 2015, the date of receipt of the Veteran's application to reopen the claim of service connection for heart disease. The Board finds that the date of claim is December 30, 2015. The Board observes that the Veteran has not referenced any evidence or law or regulation that supports an effective date earlier than December 30, 2015. An effective date prior to the date of the claim to reopen cannot be assigned; the appropriate date is thus already assigned. 38 C.F.R. §§ 3.400(r), 3.400(q)(2). In sum, the evidence of record provides no basis for an award of service connection for coronary artery disease prior to December 30, 2015. Service Connection and Reopened Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 2. Application to reopen the claim of service connection for an acquired psychiatric disorder, to include PTSD. 3. Service connection for anxiety and depression. In a July 2011 rating decision, the RO denied service connection for stress (listed as Diagnostic Code 9411). The RO denied a request to reopen the claim in September 2014. The Veteran did not appeal or submit new and material evidence concerning psychiatric disability within one year. The September 2014 rating decision is thus final based on the evidence then of record. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Evidence submitted after the September 2014 decision includes a December 2016 VA PTSD examination that indicated that the Veteran's claimed PTSD stressor satisfied Criterion A. The examination also indicated a diagnosis of an unspecified depressive disorder. The evidence from the December 2016 VA examination is new because it was not previously of record and is material because it relates to unestablished facts necessary to establish the claim-evidence of a current disability and evidence of a verified PTSD stressor. Accordingly, the Veteran's claim is reopened. Further, the Board finds that service connection for depression and anxiety is warranted. In a November 2020 letter a private psychologist (QA-S, PhD) indicated that clinical evaluation of the Veteran had revealed diagnoses including a major depressive disorder and an anxiety disorder. Further, the private psychologist linked the anxiety and depression to the Veteran's service. The private psychologist, in rendering the opinion, reviewed the Veteran's medical history, including the pertinent service treatment records. In an essential confirmation of the private opinion, the Board observes that the Veteran was prescribed Valium during service, and at the October 1970 VA examination conducted approximately two months following service the Veteran indicated "Nerves are really bad." The private psychologist, in the same manner as the December 2016 VA examiner, specially stated that the Veteran did not meet the criteria for PTSD, and this grant of service connection for psychiatric disability does not include PTSD. In sum, service connection for anxiety and depression is granted. 4. Application to reopen the claim of service connection for hearing loss. In a September 2014 rating decision, the RO denied service connection for hearing loss. The Veteran did not appeal or submit new and material evidence concerning hearing loss disability within one year. The September 2014 rating decision is thus final based on the evidence then of record. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Evidence submitted after the September 2014 decision includes a December 2016 VA hearing loss examination wherein the examiner stated that she was unable to determine whether the Veteran had a current hearing loss. At his August 2020 Board hearing the Veteran essentially indicated that he had first noticed his hearing loss while serving in Germany. The evidence from the December 2016 VA examination and the Veteran's Board hearing testimony is new because it was not previously of record and is material because it relates to unestablished facts necessary to establish the claim-evidence of a current disability. Accordingly, the Veteran's claim is reopened. 5. Application to reopen the claim of service connection for a disorder of the eyes. In a July 2011 rating decision, the RO denied service connection for disability of the eyes. The RO denied a request to reopen the claim in September 2014. The Veteran did not appeal or submit new and material evidence concerning the disability within one year. The September 2014 rating decision is thus final based on the evidence then of record. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Evidence submitted after the September 2014 decision includes an October 2020 private opinion indicating that the Veteran has chronic conjunctivitis related to events during service. This evidence is new because it was not previously of record, and is material because it relates to unestablished facts necessary to establish the claim-evidence of a current disability related to service. Accordingly, the Veteran's claim is reopened. 6. Application to reopen the claim of service connection for left foot disability. 7. Service connection for a left foot calcaneal spur. In a January 2017 rating decision, the RO denied service connection for left foot disability. The Veteran did not appeal or submit new and material evidence concerning the left foot disability within one year. The January 2017 rating decision is thus final based on the evidence then of record. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. A May 2018 RO decision reopened the Veteran's claim, and the Board concurs in this finding. In this regard, the Board observes that an August 2017 VA medical record noted complaints of left heel pain. The August 2017 VA medical record is new because it was not previously of record and is material because it relates to unestablished facts necessary to establish the claim-evidence of a continuity of symptoms since service. Accordingly, the Veteran's claim is reopened. Further, the Board finds that service connection for a left heel spur is warranted. The Veteran's STRS reflect complaints of left foot pain during service, and a December 2016 left foot X-ray revealed a left heel spur. Based on the Veteran's credible and consistent complaints (including at the August 2020 Board hearing) of left heel and foot pain since service to the present, the Board finds that service connection for a left foot calcaneal spur based on a continuity of symptomatology is warranted. REASONS FOR REMAND 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for tinnitus. Although a VA hearing loss and tinnitus examination was conducted in July 2016, the Board notes that the July 2016 examination was inconclusive and is not adequate to address the medical matters raised by the hearing loss and tinnitus claims. As such, another VA audiological examination with opinion should be undertaken. 10. Entitlement to service connection for disability of the eyes. 11. Entitlement to service connection for a sinus disorder. 12. Entitlement to service connection for a left knee disorder. 13. Entitlement to service connection for diabetes mellitus. 14. Entitlement to service connection for sleep apnea. 15. Entitlement to service connection for memory loss. 16. Entitlement to service connection for a prostate disorder. 17. Entitlement to service connection for a low back disorder. In a letter dated in October 2020 a private physician essentially linked these disabilities to the Veteran's service. In doing so, however, the Board observes that the private physician provided little in the way of rationale and did not note pertinent medical records such as an October 1970 VA examination conducted shortly following service that did not indicate such disabilities. The Board finds that VA opinions should be obtained as the medical evidence of record is not sufficient to adjudicate the claims. 18. Entitlement to a compensable rating for hemorrhoids. 19. Entitlement to a rating in excess of 10 percent for hypertension. 20. Entitlement to a compensable rating for headaches. The Veteran seeks higher ratings for these service-connected disabilities. The Veteran last underwent VA examinations for the increased rating disabilities on appeal in July 2016 (hemorrhoids), November 2017 (headaches), and February 2018 (hypertension) and has essentially indicated at his August 2020 Board hearing that the disabilities have worsened since that time. When there is evidence that there has been a material change in the Veteran's disability, the current rating may be incorrect, or where the Veteran asserts that the disability has undergone an increase in severity since the last examination, a new examination must be provided. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, new VA examinations should be obtained on remand to determine the current severity of the Veteran's disabilities on appeal. The Board also notes that VA treatment records with findings related to the increased rating disabilities on appeal have been added to the file since the last adjudication in September 2019. 21. Entitlement to a TDIU prior to November 10, 2017. As the issues on remand impact the issue of entitlement to an earlier effective date for TDIU, the Board will defer adjudication of the claim pending review by the AOJ. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after June 11, 2021. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed hearing loss and tinnitus. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss (if present) and tinnitus had its onset in, or is otherwise caused by, the Veteran's military service. An explanation for all opinions expressed must be provided, to include consideration of the Veteran's lay statements. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination for his eyes, sinus, left knee, diabetes mellitus, sleep apnea, memory loss, prostate disorder, and low back disorder claims. The entire claims file must be made available to and be reviewed by the examiner. The examiner must address the following: Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed eyes, sinus, left knee, diabetes mellitus, sleep apnea, memory loss, prostate disorder, and low back disorder was incurred in service, manifest to a compensable degree within a year after separation from service, or in any way related to active service or any event of active service. 5. After completing the above, provide the Veteran with the appropriate examination(s) to determine the current severity of the hemorrhoids, hypertension, and headaches disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson 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.