Citation Nr: 18160344
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-05 996
DATE:	December 28, 2018
ORDER
The petition to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. 
The petition to reopen a claim of entitlement to service connection for joint disease is granted. 
The petition to reopen a claim of entitlement to service connection for multiple sclerosis (MS) is granted.  
The petition to reopen a claim of entitlement to service connection for a heart disorder (claimed as heart disease) is granted. 
The petition to reopen a claim of entitlement to service connection for left leg cellulitis is denied. 
The petition to reopen a claim of entitlement to service connection for dermatitis of the bilateral thighs is denied. 
The petition to reopen a claim of entitlement to service connection for peptic ulcer disease is denied. 
The petition to reopen a claim of entitlement to service connection for chronic fatigue syndrome is denied. 
An initial 10 percent rating for gastroesophageal reflux (GERD) is granted.
REMANDED
The issue of entitlement to service connection for a dental condition is remanded. 
The issue of entitlement to service connection for residuals of transient cerebral ischemia is remanded. 
The issue of entitlement to service connection for a heart disorder (claimed as heart disease) is remanded. 
The issue of entitlement to service connection for PTSD is remanded. 
The issue of entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include depression, is remanded. 
The issue of entitlement to service connection for joint disease/pain, to include as an undiagnosed illness or other qualifying chronic disability, pursuant to 38 C.F.R. § 3.317, is remanded.
The issue of entitlement to service connection for a left knee disability (claimed as left knee pain), to include as an undiagnosed illness or other qualifying chronic disability, pursuant to 38 C.F.R. § 3.317, is remanded.
The issue of entitlement to service connection for a right knee disability (claimed as right knee pain), to include as an undiagnosed illness or other qualifying chronic disability, pursuant to 38 C.F.R. § 3.317, is remanded.
The issue of entitlement to a disability manifested by muscle spasms, balance problems and visual disturbances, claimed as multiple sclerosis, to include as an undiagnosed illness or other qualifying chronic disability, pursuant to 38 C.F.R. § 3.317, is remanded.
The issue of entitlement to an initial rating in excess of 10 percent for back strain in remanded. 

FINDINGS OF FACT
1. The Veteran did not appeal a September 1998 rating decision which declined to reopen a claim for PTSD, but evidence received since that decision raises a reasonable possibility of substantiating the claim.
2. The Veteran did not appeal a September 1998 rating decision which denied a claim of entitlement to service connection for joint disease, but evidence received since that decision raises a reasonable possibility of substantiating the claim.
3. The Veteran did not appeal a September 1998 rating decision which denied a claim of entitlement to service connection for multiple sclerosis, but evidence received since that decision raises a reasonable possibility of substantiating the claim.
4. The Veteran did not appeal a September 1998 rating decision which denied a claim of entitlement to service connection for heart disease, but evidence received since that decision raises a reasonable possibility of substantiating the claim.
5. The Veteran did not appeal an April 1996 rating decision which denied a claim of entitlement to service connection for left leg cellulitis; evidence received since that decision does not raise a reasonable possibility of substantiating the claim.
6. The Veteran did not appeal an April 1996 rating decision which denied a claim of entitlement to service connection for dermatitis of the bilateral thighs; evidence received since that decision does not raise a reasonable possibility of substantiating the claim.
7. The Veteran did not appeal an September 1998 rating decision which declined to reopen a claim of entitlement to service connection for peptic ulcer disease; evidence received since that decision does not raise a reasonable possibility of substantiating the claim.
8. The Veteran did not appeal an September 1998 rating decision which declined to reopen a claim of entitlement to service connection for chronic fatigue syndrome; evidence received since that decision does not raise a reasonable possibility of substantiating the claim.
9. The evidence of record shows the Veteran’s GERD has been manifested by gastric distress with intermittent episodes of pyrosis and dysphagia that are controlled by medication and not productive of considerable impairment of health.
CONCLUSIONS OF LAW
1. The criteria for new and material evidence having been met, the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
2. The criteria for new and material evidence having been met, the claim of entitlement to service connection for joint disease is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
3. The criteria for new and material evidence having been met, the claim of entitlement to service connection for multiple sclerosis is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
4. The criteria for new and material evidence having been met, the claim of entitlement to service connection for heart disease is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
5. The criteria for new and material evidence having not been met, the claim of entitlement to service connection for left leg cellulitis is not reopened and the appeal is denied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
6. The criteria for new and material evidence having not been met, the claim of entitlement to service connection for dermatitis of the bilateral thighs is not reopened and the appeal is denied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
7. The criteria for new and material evidence having not been met, the claim of entitlement to service connection for peptic ulcer disease is not reopened and the appeal is denied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
8. The criteria for new and material evidence having not been met, the claim of entitlement to service connection for chronic fatigue syndrome is not reopened and the appeal is denied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
9. The criteria for an initial 10 percent rating, but no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.114, Diagnostic Code (DC) 7346 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from October 1971 to October 1974 and from November 1990 to March 1991.
This matter is before the Board of Veterans’ Appeal (Board) on appeal from a June 2013 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO).  A Notice of Disagreement was submitted in December 2013; a Statement of the Case was issued in December 2014; and a VA Form 9 was received in February 2015. 
I. New and Material Evidence – Generally 
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 new and material evidence is received during the appeal period after the decision. 38 U.S.C. 7105; 38 C.F.R. 3.156, 20.302, 20.1103.  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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 
VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999).  The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  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). 
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).
PTSD 
By an April 1996 rating decision, the RO, in part, denied service connection for PTSD, finding that the claim was not well-grounded.  The RO specifically found that the evidence failed to establish a PTSD diagnosis.  The Veteran submitted an NOD and an SOC was issued, but he failed submit a timely substantive appeal.  The April 1996 rating decision is therefore final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
Thereafter, by a September 1998 rating action, the RO declined to reopen the claim on the basis that new and material evidence had not been submitted.  Notice of the September 1998 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the September 1998 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b). Thus, the September 1998 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
The Board finds that new and material evidence has been received to reopen a previously denied claim for service connection for PTSD.  
Since the September 1998 rating decision, evidence added to the record includes diagnoses of PTSD in the context of his Gulf War service. See 2013-2014 VA Treatment Records (noting chronic PTSD diagnoses.).  
This evidence is new as it was not part of the claims file at the time of the September 1998 rating decision.  Moreover, it is material because it relates to the previously unestablished element of a current PTSD diagnosis.  Therefore, new and material evidence has been received and the claim is reopened.  
Multiple Sclerosis 
By a September 1998 rating action, the RO denied the claim of entitlement to service connection for multiple sclerosis on the basis that the claim was not well-grounded.  The RO essentially found that the evidence, which consisted of STRs and VA treatment records, failed to establish a clinical diagnosis of multiple sclerosis at that time.  Notice of the September 1998 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the September 1998 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the September 1998 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) provided for a re-adjudication of claims that became final between July 14, 1999 and November 9, 2000, and that were denied as not-well-grounded, as if the denial had not been made.  This was so, as long as a claimant requested a re-adjudication or VA moved for a re-adjudication by November 9, 2002-two years after the enactment of the VCAA.  Here, the Veteran’s claim in question was denied as not-well-grounded and the decision became final within the requisite time period (i.e., September 1999).  Significantly, the Veteran did not request re-adjudication prior to November 9, 2002 for the instant claim.  In addition, VA did not re-adjudicate the claim for service connection for MS on its motion by November 9, 2002.  Thus, the provisions of the VCAA that pertain to the re-adjudication of claims that were denied as not-well-grounded are not applicable to the present case. See VAOPGCPREC 03-2001 (Jan. 22, 2001).  Therefore, the denial of the claim for service connection for multiple sclerosis remains finally decided.
Since the September 1998 denial, the record contains VA treatment records, private treatment records, and statements from the Veteran asserting that he has MS and/or MS symptoms.  Current VA treatment records complaints of muscle spasms, balance problems and visual disturbances; notably, a VA outpatient treatment diagnosis list added to the record in 2011 reflects an MS diagnosis in 1996.  
This evidence is new as it was not part of the claims file at the time of the September 1998 rating decision.  Moreover, it is material because it relates to an unestablished fact necessary to substantiate the claim.  Therefore, new and material evidence has been received and the claim is reopened.  
Joint Disease 
By a September 1998 rating action, the RO denied the claim of entitlement to service connection for joint disease on the basis that the claim was not well-grounded.  The RO essentially found that the evidence, which included a VA examination report, demonstrated that his joint complaints were related to either degenerative disease or exertion and not to service (to include his Gulf War service).  Notice of the September 1998 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the September 1998 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the September 1998 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) provided for a re-adjudication of claims that became final between July 14, 1999 and November 9, 2000, and that were denied as not-well-grounded, as if the denial had not been made.  This was so, as long as a claimant requested a re-adjudication or VA moved for a re-adjudication by November 9, 2002-two years after the enactment of the VCAA.  Here, the Veteran’s claim in question was denied as not-well-grounded and the decision became final within the requisite time period (i.e., September 1999).  Significantly, the Veteran did not request re-adjudication prior to November 9, 2002 for the instant claim.  In addition, VA did not re-adjudicate the claim for service connection for joint disease on its motion by November 9, 2002.  Thus, the provisions of the VCAA that pertain to the re-adjudication of claims that were denied as not-well-grounded are not applicable to the present case. See VAOPGCPREC 03-2001 (Jan. 22, 2001).  Therefore, the denial of the claim for service connection for joint disease remains finally decided.  
Evidence added to the record since the September 1998 rating decision includes VA treatment records and examination reports demonstrating complaints of joint pain with no particular pathology. See, e.g., May 2013 VA Examination Report (noting complaints of knee pain and spasms but no diagnosis).  This evidence is new as it was not part of the claims file at the time of the September 1998 rating decision.  Moreover, it is material because it relates to an unestablished fact necessary to substantiate the claim for service connection for joint disease, to include as due to undiagnosed illness.  Therefore, new and material evidence has been received and the claim is reopened. 
Heart Disorder
The claim of entitlement to service connection for a disability was initially denied in a June 1976 rating decision.  The Veteran did not appeal the June 1976 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
The Veteran’s claim was again denied in a September 1998 rating decision on the basis that the claim was not well-grounded.  The RO essentially found that the evidence, which included STRs from both periods of active duty service and post-service medical records, did not establish a chronic heart disorder that was subject to service connection.  Notice of the September 1998 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the September 1998 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the September 1998 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) provided for a re-adjudication of claims that became final between July 14, 1999 and November 9, 2000, and that were denied as not-well-grounded, as if the denial had not been made.  This was so, as long as a claimant requested a re-adjudication or VA moved for a re-adjudication by November 9, 2002-two years after the enactment of the VCAA.  Here, the Veteran’s claim in question was denied as not-well-grounded and the decision became final within the requisite time period (i.e., September 1999).  Significantly, the Veteran did not request re-adjudication prior to November 9, 2002 for the instant claim.  In addition, VA did not re-adjudicate the claim for service connection for a heart disorder on its motion by November 9, 2002.  Thus, the provisions of the VCAA that pertain to the re-adjudication of claims that were denied as not-well-grounded are not applicable to the present case. See VAOPGCPREC 03-2001 (Jan. 22, 2001).  Therefore, the denial of the claim for service connection for a heart disorder remains finally decided.  
Evidence added to the record since the September 1998 rating decision includes VA treatment records and examination reports demonstrating a coronary artery disease diagnosis, as well as the Veteran’s competent statements concerning onset of cardiac symptomatology.  This evidence is new as it was not part of the claims file at the time of the September 1998 rating decision.  Moreover, it is material because it relates to an unestablished fact necessary to substantiate the claim for service connection for heart disease.  Therefore, new and material evidence has been received and the claim is reopened.
Left Leg Cellulitis 
By an April 1996 rating action, the RO denied the claim of entitlement to service connection for left leg cellulitis on the basis that the claim was not well-grounded.  The RO essentially found that the evidence, which consisted of STRs showing treatment for left leg cellulitis in 1991 and a recent VA examination noting no current left leg cellulitis or symptoms thereof, failed to establish a current chronic left leg cellulitis condition.  Notice of the April 1996 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the April 1996 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the April 1996 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
Evidence added to the record since the April 1996 RO decision includes treatment records, VA examination reports, and statements from the Veteran in which he generally asserts that service connection is warranted.  While new, these records are not material in that they do not demonstrate a current chronic left leg cellulitis diagnosis.  In fact, the newly submitted evidence does not reflect any current complaints, symptoms, treatment, and/or diagnoses related to the skin and/or left leg cellulitis (or residuals thereof) whatsoever. See also May 2013 VA Examination (finding no current skin symptoms/conditions, resolved cellulitis in 1991); see also VA Treatment Records, dated from 2011 to 2014 (noting no wounds, ulcers, or other skin problems).  The Board therefore finds that this new evidence is not material in that it does not relate to an unestablished fact necessary to substantiate the claim.  The new evidence, like the old evidence, fails to establish a current left leg cellulitis diagnosis and/or signs or symptoms involving the skin. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade, supra. 
The Board has reviewed hundreds of pages of medical evidence and statements submitted by the Veteran in support of his claim.  His assertions are cumulative of the assertions and lay statements previously considered in the earlier final RO decision addressing his claim for service connection left leg cellulitis.  His submissions, while new, are simply not material.  Without new and material evidence, the petition to reopen the claim of service connection for left leg cellulitis is denied. See 38 C.F.R. § 3.156 (a).
Dermatitis of the Bilateral Thighs
By an April 1996 rating action, the RO denied the claim of entitlement to service connection for dermatitis of the bilateral thighs on the basis that the claim was not well-grounded.  The RO essentially found that the evidence, which consisted of STRs showing treatment for asteatotic dermatitis in-service and a recent VA examination noting no current skin conditions or residuals of dermatitis, failed to establish a chronic bilateral thigh dermatitis disability that was subject to service connection.  
Notice of the April 1996 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the April 1996 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the April 1996 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
Evidence added to the record since the April 1996 RO decision includes treatment records, VA examination reports, and statements from the Veteran in which he generally asserts that service connection is warranted.  While new, these records are not material in that they do not demonstrate a current chronic bilateral thigh dermatitis disability.  In fact, the newly submitted medical evidence does not reflect any current complaints, symptoms, treatment, and/or diagnoses related to the skin or thigh dermatitis (or residuals thereof) whatsoever. See also May 2013 VA Skin Examination (finding no current skin complaints or diagnoses).  The Board therefore finds that this new evidence is not material in that it does not relate to an unestablished fact necessary to substantiate the claim.  The new evidence, like the old evidence, fails to establish a current bilateral thigh dermatitis diagnosis and/or signs or symptoms involving the skin. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade, supra. 
The Board has reviewed hundreds of pages of medical evidence and statements submitted by the Veteran in support of his claim.  His assertions are cumulative of the assertions and lay statements previously considered in the earlier final RO decision addressing his claims for service connection bilateral thigh dermatitis.  His submissions, while new, are simply not material.  Without new and material evidence, the petition to reopen the claim of service connection for bilateral thigh dermatitis is denied. See 38 C.F.R. § 3.156 (a).
Peptic Ulcer Disease
By an April 1996 rating decision, the RO, in part, denied service connection for peptic ulcer disease, finding that the claim was not well-grounded.  At that time, the evidence consisted of: (1) STRs showing a diagnosis of esophagitis reflux in 1974 (note: the Veteran is currently service-connected for GERD) and epigastric pain with a noted history of peptic ulcer disease (with no complications) in 1991; (2) a June 1975 VA examination report noting “possible” or questionable minimal peptic ulcer disease; and (3) a February 1996 VA examination report noting a history of peptic ulcer disease with no current gastrointestinal symptoms or complaints.  The RO denied the claim on the basis that the evidence failed to show active peptic ulcer disease in-service (to include during his Persian Gulf service) and/or a current chronic peptic ulcer disability subject to service connection.  The Veteran submitted an NOD and an SOC was issued, but he failed submit a timely substantive appeal.  The April 1996 rating decision is therefore final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
Thereafter, by a September 1998 rating action, the RO declined to reopen the claim on the basis that new and material evidence had not been submitted.  Specifically, the evidence, again, failed to establish a peptic ulcer disease diagnosis.  At that time, the evidence of record consisted of VA and private treatment records.  Notice of the September 1998 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the September 1998 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the September 1998 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
Evidence added to the record since the September 1998 RO decision includes treatment records, VA examination reports, and statements from the Veteran in which he generally asserts that service connection is warranted.  While new, these records are not material in that they do not demonstrate a current peptic ulcer disease diagnosis.  In fact, the newly submitted continues to reflect only a remote history of peptic ulcer disease and gastrointestinal complaints associated with his already service-connected GERD disability.  The May 2013 VA examination, in particular, expressly notes a history of a healed duodenal ulcer and a current diagnosis of GERD with all gastrointestinal symptoms attributed to such disability.  The Board therefore finds that this new evidence submitted is not material in that it does not relate to an unestablished fact necessary to substantiate the claim.  The new evidence, like the old evidence, fails to establish current peptic ulcer disease diagnosis and/or gastrointestinal symptoms separate and distinct from the service-connected GERD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade, supra. 
The Board has reviewed hundreds of pages of medical evidence and statements submitted by the Veteran in support of his claim.  His assertions are cumulative of the assertions and lay statements previously considered in the earlier final RO decision addressing his claim for service connection peptic ulcer disease.  His submissions, while new, are simply not material.  Without new and material evidence, the petition to reopen the claim of service connection for peptic ulcer disease is denied. See 38 C.F.R. § 3.156 (a).
Chronic Fatigue Syndrome
By an April 1996 rating decision, the RO, in part, denied service connection for chronic fatigue, finding that the claim was not well-grounded.  The RO specifically found that there was no record of chronic fatigue syndrome showing a chronic disability subject to service connection and no evidence of any underlying pathology to account for chronic fatigue syndrome.  At that time, the evidence of record consisted of STRs, which were negative for complaints of chronic fatigue in-service (to include during his Persian Gulf service), and a February 1996 VA examination report in which the examiner opined that the Veteran’s complaints of fatigue were not “fitting with chronic fatigue syndrome” and that, given the Veteran’s obesity and cardiac disease, he would expect him to be more tired than not.  The Veteran was notified of the decision and of his appellate rights but he did not appeal that determination.  The April 1996 rating decision is therefore final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
Thereafter, by a September 1998 rating action, the RO declined to reopen the claim on the basis that new and material evidence had not been submitted.  Specifically, the evidence again failed to demonstrate a chronic fatigue diagnosis and/or an undiagnosed illness related to his Gulf War service.  Notice of the September 1998 rating decision was provided to the Veteran that same month.  The Veteran did not appeal the September 1998 rating decision, and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 38 C.F.R. § 3.156 (b).  Thus, the September 1998 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
Evidence added to the record since the September 1998 rating decision includes updated VA treatment records, examination reports, and statements from the Veteran in which he generally asserts that service connection is warranted.  This evidence is new.  With respect to whether this evidence is material, however, the Board notes that the previous denial was based on the findings that the Veteran did not have a clinical diagnosis of chronic fatigue syndrome.  To date, the Veteran still has not been diagnosed with chronic fatigue syndrome.  In fact, the newly submitted medical evidence does not reflect any current complaints, symptoms, treatment, and/or diagnoses related to fatigue or chronic fatigue syndrome whatsoever.  The Board therefore finds that this new evidence is not material in that it does not relate to an unestablished fact necessary to substantiate the claim.  The new evidence, like the old evidence, fails to establish a current chronic fatigue syndrome diagnosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade, supra. 
The Board has reviewed hundreds of pages of medical evidence and statements submitted by the Veteran in support of his claim.  His assertions are cumulative of the assertions and lay statements previously considered in the earlier final RO decision addressing his claims for service connection chronic fatigue syndrome.  His submissions, while new, are simply not material.  Without new and material evidence, the petition to reopen the claim of service connection for chronic fatigue syndrome is denied. See 38 C.F.R. § 3.156 (a).
II. Increased Ratings – Generally 
Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.  Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
Entitlement to an initial compensable rating for GERD 
In the June 2013 rating decision on appeal, the AOJ granted service connection for GERD and assigned an initial noncompensable (zero percent) rating pursuant to 38 C.F.R. § 4.114, DC 7399-7346, effective June 27, 2011.  The Veteran perfected an appeal as to the propriety of the initial rating assigned to his disability, which is the basis of this appeal. 
The hyphenated diagnostic code assigned in this case indicates that a miscellaneous digestive disease is the service-connected disorder evaluated under DC 7399, while the residual condition (to which the Veteran’s disability is rated by analogy) is hiatal hernia, which is evaluated under DC 7346. 
Under that code, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  A 30 percent rating is assigned if there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  With two or more of the symptoms for the 30 percent rating of less severity, a 10 percent rating in warranted.
The Veteran underwent a VA examination in May 2013; at that time, a GERD diagnosis was confirmed.  The Veteran endorsed difficulty with abdominal pain and reflux since the 1970’s.  Objective findings included pyrosis, reflux, and sleep disturbance caused by esophageal reflux.  No other symptoms were noted or endorsed. 
VA treatment records dated from 2011 to the 2014 reflect intermittent episodes of pyrosis/heartburn and dysphagia and notations that his GERD symptoms were controlled with medications. 
The Veteran has not specifically endorsed any worsening symptoms since the 2013 VA examination, nor has he provided any specific argument as to why he should be assigned a higher rating. 
Nevertheless, after careful review of the evidence and after resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran’s GERD symptoms more nearly approximate the level of disability contemplated by the 10 percent rating under DC 7346.  Indeed, the clinical evidence of records show that the Veteran’s GERD is manifested by epigastric distress with heartburn (pyrosis) and dysphagia, all of which occur intermittently.  His symptoms are not, however, shown to be persistent or consistently chronic as contemplated by the 30 percent rating.  The clinical evidence of record does not establish, and the Veteran has not alleged, material weight loss, hematemesis, melena and/or anemia.  Additionally, his symptoms have not been severe enough to be productive of considerable or severe impairment of health, which is also required for a higher rating.
Overall, the lay and medical evidence shows the Veteran’s GERD is variously manifested by epigastric distress with intermittent episodes pyrosis and dysphagia.  The evidence shows the Veteran’s cluster of symptoms vary in frequency and severity and have been managed by various medications throughout the pendency of this claim and appeal.  As such, the Board finds that the preponderance of the evidence supports the grant of an initial 10 percent rating, but no higher, for the Veteran’s GERD.
The Board has considered whether the Veteran is entitled to a separate or higher rating under other potentially applicable diagnostic codes; however, 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14.  Additionally, 38 C.F.R. § 4.114 indicates that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other.  Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation.  Therefore, as the Veteran’s GERD is evaluated under DC 7346, he is not entitled to a higher or separate rating under any other potentially applicable diagnostic code.
Finally, the Board finds there is no basis for staged rating of the GERD disability, pursuant to Hart, as the lay and medical evidence shows the Veteran’s service-connected GERD has been consistently manifested by symptoms that more nearly approximate a 10 percent rating throughout the appeal period.  Indeed, as noted above, while the Veteran has manifested the symptoms contemplated by the 30 percent rating at different points during the appeal period, the evidence does not show persistent symptoms which resulted in a considerable impairment of health at any point during the appeal to warrant a rating higher than 10 percent.
Accordingly, for the foregoing reasons, the Board concludes that a 10 percent rating, but no higher, is warranted for GERD.  In reaching this determination, the Board has considered the benefit of the doubt rule. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991).
REASONS FOR REMAND
1. The issue of entitlement to an initial evaluation in excess of 10 percent for back strain is remanded. 
The United States Court of Appeals for Veterans Claims has held that a VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016).  The Veteran’s most recent VA back examination was conducted in May 2013 and does not contain such findings.  A new examination is required.
2. The issue of entitlement to service connection for a dental condition is remanded.
The Board cannot make a fully-informed decision on the issue of service connection for a dental condition because no VA examiner has opined whether it is related to his military service. See, e.g., November 1981 Statement from Veteran (indicating that the Veteran broke his front tooth on or around November 20, 1971, while on active duty); see also December 1974 VA Form 10-10 (noting injury to teeth following car accident on active duty).  The Veteran should thus be scheduled for the appropriate examination on remand. 
3. The issue of entitlement to service connection for residuals of transient cerebral ischemia is remanded. 
The Board cannot make a fully-informed decision on the issue of service connection for transient cerebral ischemia because no VA examiner has opined whether it is related to his military service. See, e.g., STRs (documenting borderline hypertension, premature heart beats, and a slightly enlarged heart); see also VA Treatment Diagnosis List (noting transient cerebral ischemia).  The Veteran should thus be scheduled for the appropriate examination on remand. 
4. The issue of entitlement to service connection for a heart disorder (claimed as heart disease is remanded). 
The Veteran contends that he has a heart disorder that is attributable to his period(s) of active duty service.  In this regard, STRs document borderline hypertension, premature heart beats, a slightly enlarged heart (cardiomegaly), and multiple complaints of chest pain.  Post-service medical records show that the Veteran underwent coronary artery bypass graft surgery in 1996.  In May 2013, a VA examiner opined that the Veteran’s coronary artery disease was less likely than not incurred or caused by premature heart beats that occurred in-service.  The examiner did not, however, otherwise opine as to whether the currently diagnosed coronary artery disease or hypertension were related to the other in-service findings of borderline hypertension, cardiomegaly, and/or chest pain.  The Veteran should thus be scheduled for an appropriate examination on remand. 
5. The issue of entitlement to service connection for PTSD is remanded. 
The Veteran contends that he has PTSD related to his Gulf War service.  He gives a history of being exposed to SCUD attacks and other stressors while serving in a combat area.  The Veteran most recently underwent a VA mental examination in May 2013, at which time the examiner found that the Veteran did not meet all of the diagonsitc criteria for PTSD.  The examiner did not reconcile the other VA findings of PTSD in the record.  An addendum opinion should thus be obtained.  It also appears that there are outstanding private mental health treatment records pertaining to PTSD from the state of Washington; these records should be obtained upon remand. 
6. The issue of entitlement service connection for an acquired psychiatric disorder, other than PTSD, but to include depression, is remanded.
Several VA examiners have opined that the Veteran’s diagnosed depressive disorder is “secondary to” or related to medical problems (see, e.g., February 1996 and May 2013 VA examination reports).  The Board cannot make a fully-informed decision on this issue because no VA examiner has specifically opined as to whether the diagnosed depression is proximately due to, or aggravated by a service-connected disability.  A remand is thus required to address this question.  
7. The issue of entitlement to a disability manifested by spasms, balance problems and visual disturbances, claimed as multiple sclerosis, is remanded. 
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a disability manifested by spasms, balance problems and visual disturbances (claimed as MS) because no VA examiner has opined whether his claimed neurological symptoms, i.e., muscle spasms, balance problems and visual disturbances represent a multiple sclerosis diagnosis that is related to service, or are otherwise manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness.  The Veteran should thus be scheduled for the appropriate examination on remand. 
8. The issues of entitlement to service connection for joint disease (also claimed as joint pain) and entitlement to service connection for a right and left knee disability (also claimed as right and left knee pain) are remanded. 
The Board cannot make a fully-informed decision on the issues of entitlement to service connection for joint pain, to include right and left knee pain, because no VA examiner has opined whether his claimed joint symptoms represent a known clinical diagnosis that is related to service, or are otherwise manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness.  The Veteran should thus be scheduled for the appropriate examination on remand. 
The matter is REMANDED for the following action:
1. Obtain copies of the Veteran’s updated VA treatment records and associate them with the claims file.
2. Contact the Veteran and request that he identify any private medical providers that may have records relevant to his claims that are not already of record, to specifically include mental health treatment records from the State of Washington. 
All efforts should be documented and incorporated into the claims file, and the Veteran should be notified of any negative responses so that he may provide the records. 
3. Schedule the Veteran for an examination of the current severity of his service-connected back strain disability. 
The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  
The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  
To the extent possible, the examiner should identify any symptoms and functional impairments due to back strain alone and discuss the effect of the Veteran’s back strain on any occupational functioning and activities of daily living.  
If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any dental condition.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s reports of tooth/teeth trauma due to an in-service car accident. 
A complete, well-reasoned rationale must be provided for any opinion offered.
5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of residuals of transient cerebral ischemia.  The examiner must first identify any current residuals, if any, of transient cerebral ischemia.  The examiner should then opine as to whether any diagnosed residuals are at least as likely as not related to an in-service injury, event, or disease, to include documented findings of borderline hypertension, premature heart beats, and slightly enlarged heart in-service. 
A complete, well-reasoned rationale must be provided for any opinion offered.
6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed heart disorders, to include coronary artery disease (status post bypass) and hypertension.  
The examiner must first identify all current diagnoses relating to the heart, to include coronary artery disease and hypertension.  
For each diagnosed heart disorder, the examiner should opine as to whether it is at least as likely as not related to an in-service injury, event, or disease, including documented findings of borderline hypertension, premature heart beats, chest pain, and a slightly enlarged heart (cardiomegaly) in-service.
A complete, well-reasoned rationale must be provided for any opinion offered.
7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of each diagnosed acquired psychiatric disorder, to include PTSD and depression. 
(a) The examiner must opine whether the Veteran had a diagnosis of PTSD, and if so, whether it is at least as likely as not related to a verified in-service stressor.
(b) The examiner must opine whether it is at least as likely as not that any diagnosed acquired psychiatric disorder, other than PTSD, to specifically include depression, is related to an in-service injury, event, or disease. 
(c) The examiner must opine whether any diagnosed psychiatric disorder, to specifically include depression, is at least as likely as not (1) proximately due to service-connected chronic headaches, or (2) aggravated beyond its natural progression by any currently service-connected disability or disabilities. 
Rationale should be provided for the opinions proffered. In rendering the requested opinions, the examiner should reconcile any findings that are inconsistent with the evidence of record, specifically with the PTSD diagnoses provided by VA clinicians in 2013 and 2014. 
8. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed neurological symptoms (i.e., spasms, balance problems and visual disturbances), also claimed as multiple sclerosis.  Any and all studies, tests and evaluations deemed necessary by the examiner should be performed.  If necessary, a Gulf War examination should be performed.
The examiner is requested to rule in or exclude a diagnosis of multiple sclerosis or other disease of the central nervous system.  Any disability of the central nervous system should be identified.  
The examiner is requested to indicate whether the Veteran’s complaints of spasms, balance problems, and visual disturbances (i.e., neurological symptoms) are due to a known clinical diagnosis (such as multiple sclerosis) or whether they are due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 
If the complaints are related to a known clinical diagnosis, the examiner must indicate whether any diagnosis is at least as likely as not related to active service or events therein. 
A complete, well-reasoned rationale must be provided for any opinion offered.
9. Schedule the Veteran for a VA examination to determine the nature and etiology of any poly-joint pain, to include right and left knee pain.  Any and all studies, tests and evaluations deemed necessary by the examiner should be performed.  If necessary, a Gulf War examination should be performed.
The examiner is requested to indicate whether the Veteran’s complaints of poly-joint pain, to include pain involving the right and left knees, are due to a known clinical diagnosis or whether they are due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 
If the complaints are related to a known clinical diagnosis, the examiner must indicate whether any diagnosis is at least as likely as not related to active service or events therein.
A complete, well-reasoned rationale must be provided for any opinions offered.
10. Upon completion of all of the requested development as well as any additional development deemed appropriate, readjudicate the remanded issues.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity for response. 

 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	H. Hoeft, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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