Citation Nr: 18124014
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-41 911
DATE:	August 3, 2018
ORDER
New and material evidence has been received to reopen the claim of entitlement to service connection for a heart condition, to include mitral insufficiency and valve prolapse; the appeal to reopen the previously denied claim is granted.
New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood; the appeal to reopen the previously denied claim is granted.
REFERRED
The issue of entitlement to special monthly compensation based on housebound status was raised by the record in a September 2013 statement and is referred to the Agency of Original Jurisdiction (AOJ).  Similarly, during the March 2013 Board hearing, the issues of entitlement to service connection for a right shoulder disability and a neck disability to include as secondary to his service-connected left shoulder disability were raised and are referred to the AOJ for adjudication. 
REMANDED 
Entitlement to service connection for a heart condition is remanded.
Entitlement to service connection for diabetes mellitus, to include as secondary to medications taken for a service-connected disability is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood is remanded.
Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded.
FINDINGS OF FACT
1. In an unappealed Board decision dated January 1979, service connection for a heart disability was denied. 
2. New and material evidence has been received since the last final decision on the claim of entitlement to service connection for a heart disability. 
3. In an unappealed Board decision dated June 1972, service connection for an acquired psychiatric disability was denied. 
4. New and material evidence has been received since the last final decision on the claim of entitlement to service connection for an acquired psychiatric disability. 
CONCLUSION OF LAW
1. The criteria for whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart condition, to include mitral insufficiency and valve prolapse, have been met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
2. The criteria for whether new and material evidence has been received to reopen the claim of entitlement to for an acquired psychiatric disorder, have been met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty from September 1971 to February 1972.  
1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart condition, to include mitral insufficiency and valve prolapse
A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  Evidence is new if it has not been previously submitted to agency decision makers.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be cumulative or 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.
A January 1979 Board Decision found that although the Veteran’s induction examination showed a normal cardiovascular system, the Veteran’s heart condition was congenital and thus preexisted service.  The Board also found that the Veteran’s preexisting heart condition was not aggravated by service and thus was not service-connected.  The Veteran did not appeal this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b).  Most recently, a December 2011 rating decision declined to reopen the Veteran’s claim.
Evidence received since the Veteran’s request to reopen his claim includes his testimony during the March 2015 hearing asserting that his heart condition is aggravated by his service-connected left shoulder condition.  In addition, the Veteran submitted an April 2015 psychiatric report indicating he received heart treatment in the Cardiovascular Center of Puerto Rico.  Notably, these records have not been obtained and associated with the record.  The evidence is new in that it was not previously considered.  It is also material insofar as it asserts a secondary theory of entitlement that has not been previously considered.  See Shade, 24 Vet. App. at 117-18.  Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for a heart disability is reopened. 
2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood. 
The Veteran’s acquired psychiatric disorder was first denied in a June 1972 rating decision.  In a December 2011 rating decision, the AOJ reopened the claim and denied it on the merits.  Despite the determination reached by the RO with respect to the reopening of the Veteran’s claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of previously denied claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). 
The June 1972 rating decision denied service connection because the Veteran’s nervous condition was not shown to be incurred in service.  Evidence received since the previous denial includes the Veteran’s testimony during the March 2015 hearing that he his psychiatric disorder is secondary to a service-connected disorder. The evidence is new in that it was not previously considered.  It is also material insofar as it asserts a secondary theory of entitlement that has not been previously considered.  See Shade, 24 Vet. App. at 117-18.  Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for an acquired psychiatric disability is reopened.
REASONS FOR REMAND
As an initial matter, it appears that the only VA treatment records associated with the claims file are from 2011.  In addition, there are limited private post-service treatment records in the claims file.  As all medical records would be potentially relevant to the claims on appeal, on remand, any such available records should be associated with the claims file.
Similarly, the Veteran reported receiving Social Security Administration (SSA) benefits.  See May 1975 VA Examination Report.  On remand, these documents should also be associated with the claims file. 
1. Entitlement to service connection for a heart condition, to include as secondary to his service-connected left shoulder disability is remanded. 
As the Veteran’s claim of entitlement to service connection for a heart disability is reopened, a medical examination and opinion regarding direct and secondary service connection is needed.  
2. Entitlement to service connection for diabetes mellitus, to include as secondary to medications taken for a service-connected disability is remanded.
The Veteran asserts that his diabetes mellitus is secondary to the pain medications he takes for his service-connected left shoulder disability.  The Veteran’s VA treatment notes show a diagnosis of diabetes mellitus.  The Veteran has not been afforded a VA examination regarding his diabetes mellitus.  As such, on remand, and examination is warranted.   



3. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood is remanded.
The Veteran asserts that his acquired psychiatric disorder is caused or aggravated by his service-connected left shoulder disability.  The Veteran was afforded a VA psychiatric evaluation in November 2011.  The examiner opined that the Veteran’s adjustment disorder symptoms are not related to his service-connected left shoulder condition.  He examiner reasoned that the Veteran does not meet the criteria for any other mental health disorder.  The examiner further stated, “There is no evidence of diagnosis or treatment for any mental disorder in relation to the Veteran’s physical conditions, including his service-connected shoulder disability.”
The examiner, did not address whether the Veteran’s adjustment disorder with depression was aggravated by his service-connected left shoulder disability.  See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (finding that an examiner’s opinion that the claimed disability was “related to” factors other than a veteran’s service-connected disability did not clearly encompass a discussion of aggravation).  The Veteran also submitted an April 2015 private psychiatric evaluation suggesting worsening mental health symptoms.  As such, a new medical opinion and examination are warranted.   
4. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. 
VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that considers records of prior examinations and treatment.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  A review of the claims file reveals that the Veteran was last afforded a VA examination for his left shoulder disability in November 2011 – over 6 years ago.  The Veteran asserts that his left shoulder disability is more disabling than reflected in his most recent VA examination.  See March 2015 Hearing transcript.  In addition, the Veteran reported potentially neurological symptoms related to his left shoulder.  As such, a current examination to determine the severity of the Veteran’s left shoulder disability, to include his sensory symptoms, is necessary. 
The matters are REMANDED for the following action:
1. Contact the Veteran and ask that he provide a release for VA to secure records of treatment he received from any private medical treatment providers, to include the Cardiovascular Center of Puerto Rico.  The Veteran is to be notified of any unsuccessful efforts in this regard, to allow her the opportunity to obtain and submit those records for VA review.    
2. Request and obtain from the Social Security Administration copies of any records in its possession pertaining to its consideration of the Veteran’s application for SSA benefits, to include any medical records considered in making a decision on that application, following the procedures set forth in 38 C.F.R. § 3.159.  
3. Obtain the Veteran’s VA treatment records and associate them with the claims file.
4.  After completion of the above development, arrange for the Veteran to undergo a VA examination to determine the current nature and severity of any heart disability, mitral insufficiency and valve prolapse.  For each heart diagnosis, the examiner should issue medical opinions as to the following:
(a) whether it is at least as likely as not (50 percent probability or higher) the heart condition had its onset in service or is related to service, and
(b) whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s heart condition is proximately due to or aggravated (i.e., permanently worsened beyond the natural progression) by his service-connected left shoulder disability.
The examiner must also discuss whether the Veteran’s heart condition is congenital, developmental, or familial in origin and answer the following questions.  (The examiner is advised that for purposes of VA compensation, a “congenital defect or abnormality” is defined as a condition that is more or less stationary in nature, whereas a “congenital disease” is defined as a condition capable of improving or deteriorating. O’Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014).)  
(a) If the proper classification of the Veteran’s heart disability is a “disease” of congenital, developmental, or familial origin, was the disease aggravated (permanently worsened) during the Veteran’s service?    
(b) If the proper classification of the Veteran’s heart disability is a “defect or abnormality” of congenital, developmental, or familial origin, did the Veteran’s service result in additional disability to the heart?   
The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that a bare conclusion, without the underlying reasoning, is not responsive to this question.  The examiner must explain the conclusion.
5. Arrange for the Veteran to undergo a VA examination to determine the current nature and etiology of his diabetes mellitus.  The examiner should issue medical opinions as to whether it is at least as likely as not (50 percent probability or higher) any current diagnosis of diabetes mellitus is proximately due to or aggravated (i.e., permanently worsened beyond the natural progression) by pain medications prescribed for his service-connected left shoulder disability.  
The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that a bare conclusion, without the underlying reasoning, is not responsive to this question.  The examiner must explain the conclusion.
6. Arrange for the Veteran to undergo a VA examination to determine the current nature and etiology of his psychiatric disability, to include adjustment disorder with depressed mood.  The examiner should issue a medical opinion as to whether it is at least as likely as not (50 percent probability or higher) any current mental health disorder is proximately due to or aggravated (i.e., permanently worsened beyond the natural progression) by his service-connected left shoulder disability.  
The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that a bare conclusion, without the underlying reasoning, is not responsive to this question.  The examiner must explain the conclusion.
7. Arrange for the Veteran to undergo a VA examination to determine the current severity of his left shoulder disability.  The examiner should also complete an examination on the sensory symptoms associated with the left shoulder disability. 
8. Readjudicate the appeal. 

 
BETHANY L. BUCK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.A. Williams, Associate Counsel

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