Citation Nr: 1312113 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 09-36 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for post operative residuals of the removal of a polyp from the right vocal cord. 2. Entitlement to a compensable rating for a left varicocele. 3. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for lumbar spine stenosis. 4. Entitlement to service connection for lumbar spine stenosis. 5. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for a left foot injury. 6. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for a stomach disorder. 7. Entitlement to service connection for a stomach disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to March 1976. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. The RO in Oakland, California has current jurisdiction of the claims. The Veteran testified at a hearing before the Board by videoconference the RO in January 2013. A transcript of the hearing is associated with the claims file. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered. The issues of increased ratings for residuals of the removal of a polyp from the right vocal cord and for a left varicocele and for service connection for a stomach disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In July 2004, the RO denied service connection for lumbar spine stenosis. The Veteran did not submit new and material evidence or express disagreement within one year, and the decision became final. 2. Since July 2004, evidence has been received that is new, not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for lumbar stenosis. 3. The Veteran's lumbar disc disease, variously diagnosed as levoscoliosis, disc bulging and herniation, degenerative disc disease, and lumbar stenosis first manifested greater than one year after service and is not caused or aggravated by any aspect of service. 4. In July 1976, the RO in San Francisco, California, denied service connection for a left foot injury and for a stomach disorder. The Veteran did not submit new and material evidence or express disagreement within one year and the decision became final. 5. Since July 1976, evidence has been received that is new but is not material to the reasons for the previous disallowance of the claim for service connection for a left foot injury and does not raise a reasonable possibility of substantiating the claim. 6. Since July 1976, evidence has been received that is new, not cumulative, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claim for service connection for a stomach disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a final disallowed claim for service connection for lumbar stenosis. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for lumbar stenosis are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. New and material evidence has not been received to reopen a final disallowed claim for service connection for a left foot injury. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 4. New and material evidence has been received to reopen a final disallowed claim for service connection for a stomach disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a petition to reopen a final disallowed claim, VA must notify a claimant of the evidence and information that is necessary to reopen a previously denied claim and must notify the claimant of the evidence and information that is necessary to establish entitlement to service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In July 2006, the RO provided a notice that met the requirements. The notice informed the Veteran of all criteria to substantiate a claim for service connection, provided a general notice of the method for assigning a rating and effective date, and provided the reasons for previous denials of service connection and the requirement for new and material evidence. The notice also explained the types of evidence that would be considered and the Veteran's and VA's respective responsibilities to obtain relevant evidence. The duty to notify is satisfied when claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities in obtaining relevant evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, Social Security Administration benefits documents, and relevant VA and private medical records are in the file. The Veteran served as a U.S. Army supply specialist with no overseas service. He contends that his lumbar spine stenosis and residuals of a left foot injury were caused by traumatic injuries in service and that a stomach disorder was diagnosed and treated immediately after active service. Lumbar Spine Stenosis In July 2004, the RO denied service connection for lumbar spine stenosis concluding that that the spinal disability was a developmental defect and was not aggravated by service. The RO considered the service treatment records, records of private hospital clinic treatment in August and September 1976, and records of VA outpatient treatment in June 1982 and September 1996, the latter including the results of an X-ray showing a diagnosis of levoscoliosis. The Veteran did not submit new and material evidence within one year, and the decision became final. 38 C.F.R. § 3.156 (b), 20.302 (2004). The RO received the Veteran's petition to reopen the claim in November 2005. In June 2006, the RO declined to reopen the claim because new and material evidence had not been received. The Veteran submitted additional evidence within one year and the RO continued development but again declined to reopen the claim in April 2007. The Veteran expressed timely disagreement in March 2008, and following an April 2009 statement of the case (mailed in July 2009), perfected a timely appeal in September 2009. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). A change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service- connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.13, 4.125 (2008); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Since July 2004, the RO received the following evidence: a November 2005 statement from the Veteran reporting the circumstances of an in-service back injury; records of SSA questionnaires, assessments, and adjudications for disability benefits in 1995, 1998, and 2002; and records of treatment at a private university clinic from December 2004 to August 2006; records of treatment at a private family practice clinic from January 1995 to June 2006; records of VA outpatient treatment from April 2006 to June 2006; the results of a February 2007 and January 2012 VA examinations; and the Veteran's testimony at a January 2013 Board hearing. The Board concludes that the evidence received since the last final disallowance of the claim is new because it had not been previously considered. Some medical evidence is cumulative in that it documents the same symptoms of back pain and reduced mobility that were previously considered. However, other medical evidence is material because it contains diagnoses for the lumbar spine other than scoliosis including disc bulging and degenerative disease. The Veteran's lay evidence of an injury in service is material because it presents a different factual basis for the etiology of the spinal disorder. The RO previously considered the disorder as a congenital defect and not aggravated by service rather than a residual of a traumatic injury. Therefore, the Veteran's current diagnoses and claim are not the same as the time the case was last decided on the merits, and new and material evidence is not necessary to reopen the claim. Id. When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits." Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). "This is because the RO generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied." Id. at 403 (internal citations omitted). "Thus, if the Board initially reopens a claim when the RO has not considered the need for a medical examination or opinion, or assessed the credibility of the evidence, the Board would be considering law that the RO had not already considered, possibly implicating § 20.903(b)." Id. In addition, the "RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C.A. § 7104 (West 2002)]." Id. at 399. "The Board, however, may proceed to decide the merits of the claim if the Board first secures a waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits." Id. at 399-400. Here, the RO considered the Veteran's new contentions of an accident in service and obtained an additional VA examination in 2007 to address the accident and the diagnoses of spinal disease other than scoliosis. The Veteran had an opportunity to respond in writing and at the Board hearing. He did not present any lay evidence at the hearing that was not considered by the RO. Therefore, all factors have been explored and evaluated by the AOJ, and the Board concludes that the Veteran will not be prejudiced by proceeding to adjudicate the claim on the merits. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). An October 1974 enlistment physical examination was silent for any history of pain or abnormalities and none were noted by the military examiner. The Veteran received treatment in April 1975 for trauma to the lower back while playing basketball. The examiner noted right side muscle tightness, diagnosed low back strain, and prescribed heat application, exercise, and a muscle relaxant medication. There was no follow-up treatment or restriction of duty. In a November 2005 claim. A February 2007 VA examination, and in his Board hearing, the Veteran reported that he sustained lower back trauma when he was hit by the tailgate of a truck while unloading supplies at some time in 1975. He reported that he was treated at a military hospital or clinic, underwent X-ray imaging, and was placed on bed rest. The service treatment records are silent for treatment following a truck accident. The Veteran reported that after the injury, the Army "took his job away...and forced him out of the military." An October 1975 physical examination was performed for the purpose of a "Chapter 13" discharge, referring to a discharge for unfitness or unsuitability but not for physical disability. Enlisted Personnel Separations, AR 635-200, Chapter 13 (Dec. 14, 1973). In a history questionnaire, the Veteran denied any recurrent back pain or treatment for a back injury, and no spinal abnormalities were noted by the military examiner. In the Board hearing, the Veteran stated that he experienced back pain since 1980 that became daily pain in 1996. Records of private hospital care in 1976, VA outpatient care in 1982, and VA care for a hernia in 1995 are silent for any symptoms of the lower back. In September 1996, the Veteran sought VA treatment for low back pain. He reported that he had experienced the pain for 20 years but that it had recently become more severe with muscle spasms, radiating pain to the left lower extremity, and intermitted bowel and bladder incontinence. A neurologist noted congenital disc space narrowing but no neurological deficits. X-rays showed levoscoliosis and a computed tomography scan showed an extruded disc at L4-5 on the left side. The final diagnosis was lumbar stenosis. None of the examiners noted reports by the Veteran of a traumatic back injury in service or after service. From December 2004 to June 2005, the Veteran received primary care treatment from a private physician and referrals for orthopedic treatment at a university clinic. The Veteran reported continued low back pain radiating to the right lower extremity. Imaging and electrodiagnostic studies showed multiple level disc bulging, herniation, and degenerative disease of the lumbar spine with radiculopathy on the right side. The Veteran was prescribed narcotic medication for back, shoulder, and knee pain. There was no mention of a traumatic injury during or after service. In February 2007, a VA nurse practitioner (NP) noted a review of the claims file including the incident of lumbar strain while playing basketball. Although the NP noted the Veteran's report of the truck accident and subsequent hospital treatment, the NP also noted that the service treatment records showed no injury or treatment and no chronic back symptoms in the discharge examination. The NP noted the examinations, imaging, and diagnoses in 1996. The NP noted the Veteran's reports of working in a warehouse and as a civil service laborer on an Air Force base in the 1980s and injuring his back three times while lifting heavy weight. The Veteran reported that he ceased full time work in 1986 and relied on SSA benefits and odd jobs for income. The NP performed an examination, reviewed concurrent X-rays, and diagnosed levoscoliosis and degenerative disc disease at two levels. Based on the absence of treatment for an injury in service, the post-service history of heavy lifting and multiple injuries followed by the diagnosis of spinal deficits and disease in 1996, the NP concluded that the Veteran's lumbar spine scoliosis and lumbar spine disease did not manifest in service and was not caused by the low back strain in service. In a January 2013 Board hearing, the Veteran again reported the circumstances of the truck tail gate accident and denied any other traumatic back injuries after service. Records of SSA disability benefit assessments and adjudication including a questionnaire provided by the Veteran's sister show the state of the Veteran's functional incapacity imposed by the back disorder but do not mention any injuries during or after service. Records of VA outpatient treatment show similar symptoms of pain, mobility limitations, and the use of narcotic pain medication. In a January 2012 VA pension examination, another VA NP noted symptoms of increased pain, decreased mobility, falls, and the use of a cane. None of these records address a traumatic injury during or after service. The Board concludes that service connection for lumbar stenosis is not warranted because the Veteran's spinal deficits and degenerative disease first manifested more than one year after service and because there is no credible evidence of an injury to the spine in service that has been found to be the cause of the current disease. Lay evidence is competent when a condition can be identified by a layperson. See 38 C.F.R. §§ 3.159(a)(1) and(2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling the broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issues if either medical etiology or a medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 Fed.Cir. 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings noted above in Buchanan, Id., and Jandreau, Id.). The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). The Board concludes that the Veteran is competent and credible to report the circumstances of the truck tail gate event because the events are observable by a lay person and consistent with the location and nature of his military duties. The Board concludes that his reports that he sustained a chronic or permanent injury that required hospitalization, imaging studies, bed rest, and a discharge from the Army are not credible because they are not consistent with the service treatment and personnel records. The Board does not assign a lack of credibility solely because there is no record of treatment but also because the Veteran's statements are inconsistent with his own reports on the discharge physical examination. It is not likely that the hospitalization and treatment following the truck accident was unrecorded or lost because the service treatment records appear to be complete and contain records of treatment for a minor strain caused by sports activity. Moreover, the Veteran did not report the trauma to any treating clinicians at any time prior to or after his May 2006 claim. Rather, the report of the trauma was made only to VA adjudicators and to the VA compensation and pension examiners in February 2007 and January 2012. The Veteran also reported multiple back injuries during his civilian occupation in the 1980s but in the hearing denied any post-service injuries, thus diminishing the credibility of his injury reports. The Veteran did not identify or authorize VA to obtain records of any care following these occupational injuries. The Board concludes that the Veteran is not competent to offer an opinion on the origin of his current degenerative disc disease as it requires medical expertise. The Board places greatest probative weight on the observations and conclusions of the VA NP in 2007. The Board concludes that the examination was adequate because it included a review of the entire file, consideration of the Veteran's lay reports, the service and post service treatment records, a thorough examination, and assessment of imaging studies. The opinion was based not just on the absence of treatment after the truck accident as described by the Veteran. As service records did show records of treatment for a mild strain after playing basketball, it is reasonable that hospital treatment for a more serious injury on an Army base would also be recorded had it occurred. Further, the NP noted that the trauma was not mentioned by the Veteran to his attending physicians when he was first examined in 1996 or at any time later. Finally, the NP considered the Veteran's reports of occupational back injuries in closer time proximity to the onset of symptoms requiring treatment. Therefore, the Board concludes that the opinion was supported by an adequate rationale. The weight of the credible and probative evidence demonstrates that the Veteran's current lumbar spine stenosis, with bulging or herniated discs first manifested greater than one year after service and is not related to his active service or to basketball or truck accidents. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Foot Injury In July 1976, the RO denied service connection for residuals of a left foot injury because service treatment records were silent for the incurrence of an injury or a current disability of the left foot. The Veteran did not provide evidence of the circumstances of the injury or his residual symptoms. The Veteran did not submit new and material evidence or express disagreement within one year, and the decision became final. 38 C.F.R. § 3.156 (b), 19.118 (1976). The RO received the Veteran's petition to reopen the claim as part of a claim for a left foot injury in May 2006. In April 2007, the RO declined to reopen the claim because the evidence received was not new and material. The evidence did not establish the incurrence of an injury in service or a current disability that were the reasons for the previous denial. The Board refers to the criteria for reopening a final disallowed claim provided above. In this case, the claim for service connection for a left foot injury is presented with the same disability and factual circumstances as was previously considered. Therefore, new and material evidence is necessary to reopen the claim. Since July 1976, the RO received the following evidence: a September 1996 VA record of examination for back pain that also noted numbness of the left foot; a May 2006 VA treatment record that showed corns, calluses, and dermatophytosis of both feet; and testimony at a January 2013 Board hearing regarding the circumstances of the left foot injury and his current symptoms. The RO also received the evidence listed above regarding the lumbar spine disability. The Board concludes that all evidence received is new because it had not been previously considered. The September 1996 examination and some of the subsequent evidence associated with the lumbar spine disability mentions radiating pain from the sites of the spinal disease to the left lower extremity. This evidence is not material because it does not relate to the incurrence or residuals of a chronic left foot injury. The May 2006 treatment records are likewise not material as they do not address the incurrence of a left foot injury in service or demonstrate that the corns and calluses are residuals of any traumatic injury. In the January 2013 Board hearing, the Veteran stated that he injured his left foot by stepping in a hole during a field exercise and felt as if the foot was broken. He stated that he received treatment at the base hospital or clinic. He stated that he currently experiences swelling of the foot and an inability to support his weight. He stated that he uses four medications for foot symptoms and that a VA physician told him that his foot disorder was associated with an old injury. The RO previously considered service treatment records that are silent for any treatment of the left foot or reference to any injury of the left foot. In an October 1975 discharge examination history questionnaire, the Veteran denied any foot trouble or injury, and the military examiner noted no foot abnormalities. VA primary care records starting in 2005 occasionally list corns, calluses, and dermatophytosis or tinea of the feet as an on-going medical problem that was first diagnosed in 2003. The primary care providers do not mention reports from the Veteran or any clinical observations of residuals of an injury or fracture incurred by stepping in a hole during or after active duty or any post-service traumatic injury. The Veteran's testimony regarding the circumstances and residuals of a left foot injury is new but not material. The Veteran previously contended that he incurred a traumatic injury to his foot and his testimony adds only the details of stepping into a hole. Although his report is presumed credible, there remains no indication of treatment for an injury in service, the Veteran's denial of any foot problems at the time of discharge, and no credible medical evidence of a current disability associated with the residuals of a traumatic injury such as a healed fracture, joint arthritis, or deformity. Therefore, the Board concludes that evidence received since the last final disallowance of the claim for service connection for residuals of a left foot injury, though new, is not material because there remains no competent medical evidence of a current disability diagnosed as residuals of a traumatic left foot injury. The Veteran is competent to report his foot discomfort and that it interferes with weight bearing. He is also competent to report that he stepped in a hole during field exercises. However, he is not competent to diagnose any non-observable medical deficits of the foot at the time of the accident, and his reports of immediate treatment are not credible because they are inconsistent with the service treatment records and his own report denial of foot symptoms in the discharge physical examination. Although there is competent and credible medical evidence of corns and calluses, the Veteran is not competent to determine that these or any other foot symptoms are residuals of a foot injury decades earlier. His report that a VA physician told him that he had residuals of an old injury is not credible as there are no clinical observations or opinions regarding an old injury in any VA records. As new and material evidence has not been received, the Board denies the petition to reopen the claim. Stomach Disorder In July 1976, the RO denied service connection for a stomach disorder because service treatment records were silent for the onset or treatment in service or a current stomach disorder. The Veteran did not provide evidence his current symptoms. The Veteran did not submit new and material evidence or express disagreement within one year, and the decision became final. 38 C.F.R. § 3.156 (b), 19.118 (1976). The RO received the Veteran's petition to reopen the claim as part of a claim for a stomach disorder in May 2006. In April 2007, the RO declined to reopen the claim because the evidence received was not new and material. The evidence did not establish the incurrence of a chronic disorder in service that was one of the reasons for the previous denial. The Board refers to the criteria for reopening a final disallowed claim provided above. In this case, the claim for service connection for a stomach disorder the same disability as was previously considered. Therefore, new and material evidence is necessary to reopen the claim. Since July 1976, the RO received the following evidence: VA outpatient treatment records in September 1996 and from May 2006 to February 2009; and the Veteran's testimony at a January 2013 Board hearing. The RO also received the evidence listed above regarding the lumbar spine disability. The Board concludes that all evidence received is new because it had not been previously considered. In September 1996, a VA clinician noted the Veteran's reports of a 20 year history of gastritis and heartburn for which the Veteran used over-the-counter medication. The clinician diagnosed gastroesophageal reflux disease (GERD) and advised the continued use of medication. VA primary care clinicians since 2006 continued to note GERD or gastritis among the on-going medical problems and occasionally prescribed other medication. In his Board hearing, the Veteran stated that he was treated in service for gastric discomfort and that he was also treated at new VA outpatient clinics in Sacramento and Martinez, California, immediately after discharge in 1976. He further stated that examiners suspected an ulcer and performed an upper gastrointestinal series of tests. The Board concludes that this evidence is material because it addresses the presence of a current gastrointestinal disorder and suggests a possible diagnosis of a stomach ulcer within one year following discharge from service. The Veteran's reports of treatment in 1976 are presumed credible for new and material evidence analysis. Therefore, as new and material evidence has been received, the Board grants the petition to reopen the claim and remands the claim for further development as provided below. ORDER As new and material evidence has been received, final disallowed claim for service connection for lumbar stenosis is reopened; to this extent only, the appeal is granted. Service connection for lumbar stenosis is denied. As new and material evidence has not been received, the petition to reopen a final disallowed claim for service connection for residuals of a left foot injury is denied. As new and material evidence has been received, final disallowed claim for service connection for a stomach disorder is reopened; to this extent only, the appeal is granted. REMAND Additional development is necessary to decide the claim for increased ratings for residuals of removal of a polyp from the right vocal cord and for a left varicocele and for service connection for a stomach disorder. When a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the January 2013 Board hearing, the Veteran stated that the residuals of the vocal cord surgery now include difficulty swallowing, choking, hoarseness, severe throat pain, and difficulty speaking in conversation and on the telephone. The Veteran stated that the symptoms of the left varicocele including testicular pain, frequent urination, and sexual dysfunction. The most recent comprehensive examination for the disabilities was in 2006 when the symptoms were diagnosed as mild chronic laryngitis and mild chronic orchitis with no current varicocele and no functional limitations imposed by either disorder. A January 2012 VA examiner noted the disabilities but did not perform an adequate evaluation. Therefore, as the Veteran reported an increase in severity of his symptoms since 2006, current VA outpatient treatment records and a current VA examination is necessary to decide the claims. 38 C.F.R. § 3.159 (c)(2012). Regarding the claim for service connection for a stomach disorder, there is credible medical evidence of a current disability, diagnosed as GERD, and the Veteran's credible report of VA examination and treatment in 1976 within one year of discharge from service. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). As the Veteran has identified VA treatment, a request for these records is necessary to satisfy VA's duty to assist. VA provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there is credible medical evidence of a current gastrointestinal disability. Although service treatment records are silent for the onset of the disorder during active service, the Veteran provided lay evidence of a diagnosis by VA examiners within one year of service. This report is not contradicted elsewhere in the record. Therefore, as there is lay evidence of the onset of a disease within the presumptive period for stomach ulcers and the Veteran's suggestion that his current disease first manifested at that time, the low threshold for a VA examination and opinion has been met. Accordingly, the case is REMANDED for the following action: 1. Request records of VA medical care for gastrointestinal symptoms including the results of any upper gastrointestinal tests or endoscopy from March 1976 to March 1977 at the VA outpatient clinics in Sacramento and Martinez, California. Associate any records received with the claims file. 2. Request records of VA medical care since April 2009. Associate any records received with the claims file. 3. Then, schedule the Veteran for VA examinations for the residuals of removal of a polyp from the right vocal cord, a left varicocele, and a gastrointestinal disorder. The examinations may be performed by separate examiners or by one examiner if qualified in all the respective medical areas. Request that the examiner(s) review the claims file and note the review in the examination report. a. Request that the examiner evaluate the severity of the Veteran's throat disability including residual symptoms of pain and hoarseness, swallowing, and difficulty speaking. Request that the examiner note whether there are any recurrent polyps or infection and whether the residuals interfere with respiration. The examiner must note whether each symptom is associated with the removal of a polyp during active duty or is indicative of a separate disorder. b. Request that the examiner determine if the Veteran has a left varicocele and if so whether the disorder causes the Veteran's genital or perineal pain, swelling, urinary or sexual dysfunction and the nature and degree of disability. c. Request that the examiner perform an upper gastrointestinal examination including all indicated tests and diagnostic procedures. Request that the examiner provide a diagnosis and an opinion whether the current disorder, if any, as likely as not first manifested in service or within one year of service or was caused or aggravated by any aspect of active service. The examiner must explain the reasons for the opinion and, if no opinion can be provided, the reasons why an opinion cannot be offered. 4. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claim for increased ratings for residuals of removal of a polyp from the right vocal cord and a left varicocele and for service connection for a stomach disorder. If any benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the appellant and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs