Citation Nr: 1400052 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-45 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disability. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right foot disability. 3. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 4. Entitlement to service connection for hypertension. 5. Entitlement to an increased evaluation for pterygium of the right eye, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: Jonathan Bruce, Attorney ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from March 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 2008 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The RO indicated that the claim for service connection for diabetes mellitus included the threshold question of whether new and material evidence had been submitted as there was a prior denial of the claim in August 2008. After that rating decision, however, the RO received service personnel records in December 2009. These personnel records reflect the time period when the Veteran was sent to Korea, which is pertinent to his claim for diabetes mellitus. Accordingly, 38 C.F.R. § 3.156(c) applies, and the claim will be reconsidered on the merits. As will be discussed in detail below, the service personnel records do not include relevant information for the claims for the right shoulder and right ankle disabilities, and therefore, the threshold question of whether new and material evidence has been submitted must still be addressed for these claims. The Virtual VA and VBMS files have been reviewed. A review of the record indicates the Veteran raised claims for service connection for mental conditions and recurrent insomnia in a July 2011 statement. Neither of these claims has been adjudicated. As such, these matters are REFERRED to the RO for appropriate action. The reopened claim of entitlement to service connection for a right foot disability, the issues of entitlement to service connection for diabetes mellitus and hypertension, and the issue of entitlement to an increased evaluation for pterygium of the right eye are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The claims for service connection for a right shoulder disability and a right foot disability were last denied in a June 1983 rating decision. The Veteran did not appeal the rating decision and it became final. 2. The evidence received since the June 1983 rating decision is new in that it is neither cumulative nor repetitive of facts previously considered and raises a reasonable possibility of substantiating the Veteran's claims for service connection for a right shoulder disability and a right foot disability. 3. Degenerative joint disease of the right shoulder was likely manifested during the Veteran's service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a right shoulder disability. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.1103 (2013). 2. New and material evidence has been received to reopen the claim of service connection for a right foot disability. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.1103 (2013). 3. The criteria for a grant of service connection for degenerative joint disease of the right shoulder have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Requirements In this decision, the Board reopens the claim for service connection for right shoulder and right foot disabilities and grants the reopened claim for the right shoulder. In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. New and Material Evidence The Veteran seeks service connection for right shoulder and right foot disabilities. Claims for service connection for a right shoulder disability and a right foot disability were initially considered and denied by the RO in an April 1978 letter decision. The Veteran did not appeal this decision, and it became final. 38 C.F.R. § 20.1103. Subsequently, the RO denied the claim in April 1980 and November 1980 rating decisions. The Veteran did not appeal these decisions, and they became final. Id. The RO again considered and denied the claims in a June 1983 rating decision. Although the Veteran filed a timely notice of disagreement, he did not perfect his appeal with a Substantive Appeal after the RO issued a Statement of the Case in January 1985. Accordingly the June 1983 rating decision became final. 38 C.F.R. § 20.1103. The Board notes that the Veteran's service personnel records were associated with the claims file in December 2009. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As will be discussed in more detail below, the claims for the right shoulder disability and right foot disability were not dependent upon the location of the Veteran's service or awards he received. Accordingly, the additional personnel file that documents the Veteran's record of assignment, awards and decorations received, and military education and training are not relevant to these claims. There is nothing in the service personnel records that relate to the right shoulder or right foot. As such, the provisions of 38 C.F.R. § 3.156(c) are not applicable to the present claims, and they may be reopened only if new and material evidence has been secured or presented since the last final rating decisions. 38 U.S.C.A. § 7104(b); see Glynn v. Brown, 6 Vet. App. 523, 527 (1994). Although the RO reopened the claims in the January 2010 rating decision, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. Barnett v. Brown, 83 F.3d at 1383. A claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to assist. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the June 1983 rating decision that denied service connection for right shoulder and right foot disabilities, the evidence of record consisted of service treatment records, VA outpatient treatment records, the report of a VA examination, and lay statements. Subsequent to the June 1983 rating decision, additional VA outpatient treatment records, private treatment records, reports from VA examinations, and lay statements were associated with the claims file. The claims for the right shoulder and right foot were denied by the RO in June 1983 because no new and material evidence had been submitted. The claim for the right shoulder was previously denied in November 1980 because the RO found that the right shoulder problem in service was acute and transitory and that there were no residuals. The claim for the right foot was previously denied in November 1980 because the post-service foot drop was not noted in service and was not related to the acute right foot pain during service. The evidence received subsequent to the June 1983 rating decision includes a November 2004 magnetic resonance imaging report (MRI) that concluded with diagnoses of tendinosis involving the supraspinatus tendon and acromioclavicular joint arthrosis. An October 2009 VA outpatient treatment record also included an assessment of degenerative joint disease of acromioclavicular joint resulting in impingement. Thus, the Veteran has presented evidence that speaks directly to one element which was not of record, mainly the presence of a current right shoulder disability. Similarly, the evidence received subsequent to the June 1983 decision includes a January 2009 VA outpatient treatment record documenting an assessment of right foot plantar pain since 1968 when walking moderately or standing a lot of time after a foreign object got into his foot during military service. This evidence speaks directly to the nexus element which was not previously of record. As some of the additional evidence received since the June 1983 rating decision relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims, the Board finds that new and material evidence has been submitted. Accordingly, the claims for service connection for a right shoulder disability and right foot disability are reopened. Analysis - Right Shoulder The Veteran seeks service connection for a right shoulder disability. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). Service connection may be awarded if a chronic disease, such as arthritis, manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); see also Dorland's Illustrated Medical Dictionary 531 (30th ed. 2003) (defining degenerative joint disease as osteoarthritis). If a chronic disease is noted during service, but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. As noted above, the Veteran has several diagnoses of the right shoulder, including degenerative joint disease of acromioclavicular joint. Service treatment records clearly reflect the Veteran was seen for right shoulder pain in September 1968. X-rays at that time were negative; however, a surgical consultation concerning the left foot included an impression of "probable bursitis right shoulder." The Veteran was again seen for right shoulder pain in April 1969 when he reported right shoulder pain since basic training. Although arthritis was not conclusively diagnosed during service, the condition was noted, and the Veteran has presented competent and credible evidence of continuity of symptomatology since service. The Veteran and his brother reported that he had right shoulder problems since his service in Korea. VA treatment records support the Veteran's assertion of continuity of symptomatology, as they reflect treatment as early as 1978 and continue to show complaints and treatment for the condition in the 1970s and 1980s. Significantly, a March 1978 VA examination noted the Veteran's report of right shoulder pain since basic training in 1968. A January 2009 VA treatment record further noted a history of right shoulder pain since 1968. As the Veteran has a current diagnosis of degenerative joint disease, a suggestion of bursitis during service, and competent and credible evidence of continuity of symptomatology since service, the Board finds that service connection is warranted under 38 C.F.R. § 3.303(b). ORDER As new and material evidence has been submitted to reopen the claim of service connection for a right shoulder disability, the appeal to this extent is allowed. As new and material evidence has been submitted to reopen the claim of service connection for a right foot disability, the appeal to this extent is allowed subject to the further action as discussed herein below. Service connection for degenerative joint disease of the right shoulder is granted. REMAND A preliminary review of the record reflects that further development is necessary. Right Foot The Board is of the opinion that a VA examination is necessary. In the present case, the Veteran clearly was seen for right foot pain during service, and an x-ray at that time noted the presence of metallic foreign bodies. A surgical consultation note during service noted no history of trauma and concluded that the foreign bodies were unrelated to the present pain. The impression was foot pain of an unclear etiology. Since service, the Veteran has had several different diagnoses, including metatarsalgia of the right foot, dorsiflexion palsy, drop right foot, right tarsal tunnel syndrome, right foot metallic foreign body, and right calcaneal spur and calcific tendinitis at the insertion of the supraspinatous tendon. As a January 2009 VA outpatient treatment record noted right foot plantar pain since 1968, it suggests a link between current pain and service, but fails to provide the necessary rationale. As such, the Board is of the opinion that the Veteran has met the criteria of 38 C.F.R. § 3.159, and a VA examination should be obtained to determine the nature and etiology of the right foot. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Diabetes Mellitus and Hypertension The Veteran seeks service connection for diabetes mellitus due to exposure to herbicides. He has alleged service along the DMZ in Korea and provided lay statements of other service members and friends noting that he wrote to them from the DMZ in support of this claim. Effective February 24, 2011, VA amended its regulations to create a presumption of herbicide exposure for specified Korean Veterans who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied. 38 C.F.R. § 3.307(a)(6)(iv) (in effect since February 14, 2011). The Veteran's Form DD 214 reflects he received the AFEM (Korea), and the service personnel records reflect service from July 1968 until August 1969. His personnel records indicate he served with Co. B, 76th Engr BN, which is a company not listed in the newly created presumptive provisions. The Veteran's representative has argued that the claim should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of herbicide exposure. The M21-1MR guidance for claims based on exposure in Korea indicates, however, that requests to JSRRC for verification need only be provided if the Veteran claimed exposure in Korea and his service was not between April 1, 1968 and August 31, 1971 and was not in a unit or entity listed in the table above. See M21-1MR, pt. IV. Subpt ii, Ch. 2, sec. C, para. 10(p). Nevertheless, the M21-1MR also provides for steps to verify herbicide exposure on a factual basis when exposure may not be presumed. See M21-1MR, pt. IV. Subpt ii, Ch. 2, sec. C, para. 10(o). In light of the Veteran's contentions, the lay statements of other servicemembers and friends noting service in the DMZ, and the provisions for establishing exposure on a factual basis as set out in the M21-1MR, the Board finds that further development should be undertaken. The July 2008 VA examination regarding diabetes mellitus suggested that the Veteran's hypertension may be related to his diabetes. As such, adjudication of the hypertension claim will be held in abeyance pending further development and adjudication of the Veteran's claim of entitlement to service connection for diabetes mellitus. Harris v. Derwinski, 1 Vet. App. 180 (1991). Ptyergium Concerning the increased evaluation for the Veteran's ptyergium of the right eye, the Board notes that the most recent VA examination was provided in March 2009; however, the evidence of record suggests that the condition may have worsened since that time. Specifically, a June 2009 VA record noted that the Veteran underwent an excision of the right eye, and there is no indication of the status of the right eye after that procedure. Accordingly, another VA examination should be afforded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Additionally, the record reflects the Veteran receives treatment at VA facilities. Accordingly, on remand, updated treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all sources of treatment that he has received for his claimed conditions and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO should obtain copies of the complete records from all identified sources. A specific request should be made for all VA medical records dated from March 2010 to the present. If any requested records are not available, that fact must clearly be documented in the claims file, and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. The RO should request that the Veteran provide any additional details (e.g., the dates, location(s), facility name(s), etc.) that may establish his exposure to herbicides while performing his duties in service. 3. After receiving any response from the Veteran, the RO should attempt to verify the Veteran's claimed herbicide exposure in locations other than in Vietnam during the Vietnam Era or along the DMZ in Korea, as specified in M21-1MR, pt. IV. Subpt ii, Ch. 2, sec. C, para. 10(o). 4. After completing the foregoing development, the Veteran shall be afforded a VA examination to determine the nature and etiology of any right foot disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is requested to review the claims file and to identify all current right foot disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service. In so doing, the examiner should address the Veteran's foot pain noted in September 1968 and the presence of metallic foreign bodies that were first noted upon x-ray during service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected pterygium of the right eye. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After completing the above actions, the RO should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 7. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs