Citation Nr: 18160644
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-57 467
DATE:	December 27, 2018
ORDER
New and material evidence having been received, the claim of service connection for diverticulitis is reopened and to that extent the appeal is granted.  
The reduction in the disability rating for migraine headaches from 50 percent to 30 percent, effective February 1, 2011, was not proper; the 50 percent evaluation for migraine headaches, effective 1, 2011, is restored.
REMANDED
Entitlement to service connection for a gastrointestinal disorder other than sliding hernia, to include gastritis, and to include as secondary to sliding hernia, is remanded.
Entitlement to service connection for diverticulitis, to include as secondary to sliding hernia, is remanded.  
FINDINGS OF FACT
1. The August 2008 rating decision that denied service connection for diverticulitis is final.  
2. Evidence received since the last final August 2008 rating decision raises a reasonable possibility of substantiating the claim of service connection for diverticulitis.  
3. The procedural requirements regarding the reduction of disability ratings under 38 C.F.R. § 3.105(e) were not properly followed, and the procedure undertaken in this case to finalize the Veteran’s reduction of benefits resulted in the deprivation of her due process rights, including notification of her right to a predetermination hearing prior to finalization in the reduction of her benefits.
CONCLUSIONS OF LAW
1. The August 2008 rating decision that denied service connection for diverticulitis is final.  38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
2. The criteria for reopening the claim of service connection for diverticulitis are met.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309.
3. The reduction of the evaluation for migraine headaches from 50 percent to 30 percent, effective February 1, 2011, is void ab initio.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from August 1995 to June 1999.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  
On June 14, 2016, a Statement of the Case was issued and mailed to the Veteran’s address of record.  The RO specifically notified the Veteran of her rights to appeal, as well as the applicable appellate procedures, and enclosed a VA Form 9.  The Board did not receive a completed Form 9 until September 2016, which was more than sixty days after issuance of the statement of the case, and more than one year after the rating decision granting service connection.   The Veteran asserts that the SOC was sent to the wrong address, that she found out about the SOC from her VSO, obtained a Form 9 online and filed it herself.  The Board has considered that a substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate.  Percy v. Shinseki, 23 Vet. App. 37 (2009).  In this case, the signature line of an email from the Veteran dated November 3, 2016 states includes a mailing address different from the one to which the SOC was sent.  Under these circumstances, the Board is convinced that timeliness of the substantive appeal should be waived.  Accordingly, the appeal may be decided on its merits.
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Reopening Service Connection for Diverticulitis
A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or unaddressed new and material evidence is received during the appeal period of the decision.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103.  The withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and of the substantive appeal.  38 C.F.R. § 20.204(c).  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 is defined as 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(a).
For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The Board notes that, regardless of the VA Regional Office’s determination, the Board must determine on its own whether new and material evidence has been submitted to reopen a claim.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The Veteran seeks to reopen her service connection claim for diverticulitis.  Historically, in an August 2008 rating decision, the RO denied service connection for this disorder.  The basis for the adverse decision was set forth as the lack of an in-service diagnosis—the Veteran’s diverticulitis had resolved prior to her release from active service.  An August 2008 letter notified the Veteran of that decision and how to appeal.  The Veteran did not submit any additional evidence, nor did she submit a notice of disagreement within one year of that notification letter.  Accordingly, the August 2008 rating decision is final.  See 38 C.F.R. §§ 20.200, 20.202, 20.1103.  New and material evidence is therefore required to reopen the claim of service connection for diverticulitis.  See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156.
In June 2010, VA received a request to reopen this claim.  The question for the Board is whether new and material evidence has been received to reopen the previously denied claim.
In its August 2008 rating decision, the RO considered the Veteran’s disability application, her STRs, including her report of service separation, a series of April 2008 lay statements, and treatment records including a VA examination report dated August 2000.  This evidence did not show that the Veteran was diagnosed with diverticulitis in service or that the disorder was otherwise related to service.
Evidentiary submissions received since the August 2008 rating decision consist of several items of lay and medical evidence; this evidence includes a statement dated November 2016 asserting that the Veteran’s current diverticulitis symptoms are similar to symptoms she experienced on active duty.  This evidence is “new” in that the Veteran had not made this statement prior to the August 2008 decision.  It is also “material” in that it raises the possibility that the Veteran’s current symptoms are etiologically related to those that presented in service.  
The Board finds that the evidentiary submissions received since the August 2008 rating decision relate to an unestablished fact necessary to reopen the claim, and necessitate obtaining a VA examination.  Accordingly, the petition to reopen the diverticulitis claim is granted.  See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim).  
Propriety of the Rating Reduction
In June 2010 VA scheduled a periodic examination.  In a subsequent November 2010 rating decision, the RO reduced the Veteran’s service-connected rating for migraines from 50 percent to 30 percent, effective February 1, 2011.  The Veteran asserts that this reduction was not proper.  For the reasons set forth below, the Board agrees, and restores the 50 percent rating for migraines.
Without reaching the merits of the propriety of the reduction in this case, the Board must find that the reduction is void ab initio due to the RO’s failure to adequately follow the procedural requirements set forth in 38 C.F.R. § 3.105(e), regarding reduction in benefits; such a failure particularly deprived the Veteran of adequate due process protections in this case.
Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary must be notified of the contemplated action and furnished detailed reasons therefore.  The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level.  38 C.F.R. § 3.105(e).  Additionally, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that request for such a hearing is received within 30 days of such notice; if a predetermination hearing is timely requested, benefits payments shall be continued at the previously established level pending a final determination concerning the proposed action.  See 38 C.F.R. § 3.105(i).
In this case, this procedure was not followed.  The RO sent the Veteran a valid proposal dated July 2010 to reduce her disability evaluation for her migraine headaches.  However, within 30 days of this notice, the Veteran requested a predetermination hearing.  The notice provided by the RO specifically informed the Veteran that if a hearing request was received, the Veteran’s payments would continue at the present rate pending the hearing.  Contrary to the requirements of § 3.105(i), however, the Veteran’s rating for migraine headaches was reduced from 50 percent to 30 percent.  The reduction in this case was not proper, and in fact, completely deprived the Veteran of her right to due process—particularly her right to a predetermination hearing.  Accordingly, the Board finds that the reduction in this case is void ab initio, and the 50 percent evaluation for her migraine headaches is restored, effective February 1, 2011.  See 38 C.F.R. § 3.105(e), (i).
REASONS FOR REMAND
A remand is required to afford the Veteran every chance at obtaining service connection for her symptoms.  The Veteran is service connected for a sliding hernia.  She seeks separate service connection for gastritis and diverticulitis, asserting that each disorder is related to symptoms experienced in service.  
The Veteran experienced persistent gastrointestinal symptoms in service.  For instance, service treatment records dated August 1996 and December 1996 indicate epigastric discomfort and diarrhea.  An upper GI series taken in December 1996 showed gastrointestinal reflux.  Soon after this examination, the Veteran received prescriptions for gastritis, and experienced lower left quadrant pain, and bloating.  Medical records show that the Veteran’s symptoms lasted into November 1998.  
However, further examination is required to determine whether the Veteran’s current stomach symptoms are indeed medically related to her in-service symptoms, or alternatively her service-connected sliding hernia.  See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Finally, on remand, the Board also finds that any outstanding VA treatment records should also be obtained.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matters are REMANDED for the following action:
1. Obtain any and all VA treatment records not already associated with the claims file from the Washington VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 
2. Ensure that the Veteran is scheduled for a VA examination in order to determine whether her claimed diverticulitis and gastrointestinal disorders other than sliding hernia are related to service or secondary to her service-connected sliding hernia.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Following examination of the Veteran and review of the claims file, the examiner should state all diverticulitis and gastrointestinal disorders other than sliding hernia found, to include gastritis.  
In addressing the presence of any gastrointestinal disorders other than sliding hernia found, the examiner must address whether the Veteran’s claimed symptomatology related to gastritis is the same as those associated with her service-connected sliding hernia disability; in other words, the examiner should state whether there are any gastrointestinal symptoms that are separate, distinct, and unaccounted for by the Veteran’s sliding hernia disability.  
Then, the examiner must opine whether the Veteran’s current disabilities found, to include diverticulitis and/or any gastrointestinal disorders other than sliding hernia, at least as likely as not (50 percent or greater probability) began in or is otherwise related to her miliary service, to include her treatment for gastrointestinal distress therein.  The examiner should also address any evidence of diverticulitis during military service noted in the record.  
Next, if the examiner does not find that the Veteran’s diverticulitis and/or gastrointestinal disorders other than sliding hernia are directly related to military service, the examiner must opine whether such disorders are at least as likely as not (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected sliding hernia.  The examiner is reminded that he or she must address both prongs (a) and (b) above.
In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
 
MARTIN B. PETERS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Z. Maskatia, Associate Counsel 

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