Citation Nr: 22017690 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-25 375 DATE: March 25, 2022 ORDER New and material evidence has been received to reopen the previously denied claim of service connection for gastroesophageal reflux disease (GERD). New and material evidence has been received to reopen the previously denied claim of service connection for diabetes mellitus (DM). REMANDED Entitlement to service connection for GERD to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for diabetes mellitus (DM) to include as secondary to service-connected disease or injury is remanded. Entitlement to a disability rating more than 30 percent for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) prior to January 19, 2021 and more than 70 percent thereafter is remanded. FINDINGS OF FACT 1. In an unappealed October 2015 rating decision, the RO denied the Veteran's claims of entitlement to service connection for GERD and DM. 2. The evidence received since the October 2015 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claims for service connection for GERD and DM. CONCLUSIONS OF LAW 1. The October 2015 rating denying service connection for GERD and DM is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2021). 2. Since the October 2015 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for GERD; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 3. Since the October 2015 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for DM; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training (ACDUTRA) from September 2003 to March 2004 as well as active service from August 2004 to March 2005 and October 2011 to November 2012. Receipt of the Combat Action Badge is indicated by the record. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of the hearing has been associated with the claims folder. New and Material Evidence In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2021). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "Material" evidence means 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. See 38 C.F.R. § 3.156(a) (2021). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). The RO denied service connection for GERD and DM in an unappealed October 2015 rating decision as the evidence did not show GERD or DM that had its onset during service. At the time of the most recent final rating decision in October 2015, the record included the Veteran's service treatment records which were absent complaints of or treatment for GERD and DM, as well as post-service medical treatment records which noted treatment for GERD and DM. In December 2017, the Veteran applied to reopen his claims of entitlement to service connection for GERD and DM. In reviewing the evidence added to the claims folder since the October 2015 final denial, the Board finds that new and material evidence has been submitted, sufficient to reopen the Veteran's claims. In particular, the Veteran has indicated a continuity of GERD symptoms since service, in particular noting that his continuous stress since separation from service led to GERD symptoms. See, e.g., the February 2021 Board hearing transcript, pgs. 13-14. Also, he has reported that during service, he experienced DM symptoms, noting that he blacked out which may have been due to low blood sugar levels. Id. at page 14. This evidence suggests that the Veteran has GERD and DM that had its onset in service. The Veteran's previous claims were denied because there was no evidence of GERD or DM that had its onset during service. The new evidence thus relates to an unestablished fact necessary to substantiate the claims. The credibility of the newly submitted evidence is presumed in determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, this evidence raises a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.156(a) (2021). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claims for service connection for GERD and DM are reopened. REASONS FOR REMAND 1. Entitlement to a disability rating more than 30 percent for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) prior to January 19, 2021 and more than 70 percent thereafter During the February 2021 Board hearing, the Veteran testified that he has received treatment for his mental health disability from Dr. Atkinson. See, e.g., the February 2021 Board hearing transcript, page 8. The recent records from Dr. Atkinson are not associated with the claims folder. The Veteran was advised of the importance of submitting these records at his hearing, but he did not do so. Therefore, as VA is on notice of outstanding, relevant private treatment records, this claim must be remanded. 2. Entitlement to service connection for GERD to include as secondary to service-connected disease or injury With respect to the Veteran's claim of service connection for GERD, the Veteran contends that he has GERD that is related to his service or is alternatively secondary to his service-connected PTSD and MDD. See, e.g., the February 2021 Board hearing transcript, pgs. 13-14. In support of his claim, the Veteran has submitted a medical article noting an association between PTSD and gastrointestinal disorders. The Veteran was provided a VA examination in January 2018 to determine the etiology of his GERD. After examination of the Veteran and consideration of the Veteran's medical history, the VA examiner concluded that it is less likely than not that the Veteran's GERD is proximately due to or the result of the Veteran's PTSD and MDD. However, the VA examiner did not render an opinion as to whether the Veteran's GERD is aggravated by the PTSD and MDD and there is no medical opinion of record which addresses such. Furthermore, the Veteran submitted another study in 2021, which has not been considered by an examiner. Therefore, the Board finds that on remand, a medical opinion for such should be obtained. 3. Entitlement to service connection for diabetes mellitus (DM) to include as secondary to service-connected disease or injury With regard to the Veteran's claim of service connection for DM, the Veteran contends that he has DM that is related to service of is alternatively secondary to the service-connected PTSD and MDD. See, e.g., a statement from the Veteran dated June 2021. In support of his claim, the Veteran has submitted a medical article noting an association between PTSD and incidence of type II diabetes. The Board observes that there is no medical opinion of record as to whether the Veteran's DM is secondary to his PTSD and MDD. In light of the foregoing, the Board finds that an opinion for such should be obtained. The matters are REMANDED for the following action: 1. Request the Veteran to provide authorization to obtain any outstanding private treatment records, to include records from Dr. Atkinson. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 2. Request any outstanding VA treatment records dated from December 2021 to present. 3. Schedule the Veteran for a VA examination to determine the etiology of his DM. The claims file must be made available to the examiner for review. Based on the review and the examination, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's DM is caused or aggravated by his service-connected PTSD and MDD. If the examiner finds that the DM is aggravated by the service-connected PTSD and MDD, then he/she should quantify the degree of aggravation, if possible. The examiner must specifically consider the articles submitted by the Veteran concerning PTSD and DM. See correspondence with receipt dates of 7/2/21 (at page 95-110) and 1/7/22. A rationale for all opinions expressed should be provided. 4. Schedule the Veteran for a VA examination to determine the etiology of his GERD. The claims file must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD is caused or aggravated by his service-connected PTSD and MDD or any service connected disease or injury. If the examiner finds that the GERD is aggravated by the service-connected PTSD and MDD, then he/she should quantify the degree of aggravation, if possible. The examiner must specifically consider the articles submitted by the Veteran concerning PTSD and GERD. See correspondence with receipt dates of 8/21/19 and 9/14/21. A rationale for all opinions expressed should be provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.