Citation Nr: 1746903	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  14-41 394A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart condition, to include as secondary to exposure to ionizing radiation.

2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer, to include as secondary to exposure to ionizing radiation.

3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for glaucoma, to include as secondary to exposure to ionizing radiation.

4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee replacement.

5. Entitlement to service connection for a heart condition, to include as secondary to exposure to ionizing radiation.

6. Entitlement to service connection for prostate cancer, to include as secondary to exposure to ionizing radiation.

7. Entitlement to service connection for glaucoma, to include as secondary to exposure to ionizing radiation.

8. Entitlement to service connection for a left knee replacement.

9. Entitlement to service connection for obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Parke, Associate Counsel


INTRODUCTION

The Veteran had active duty from September 1956 to October 1958.

This appeal is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

The Veteran testified in support of these claims during a videoconference hearing held before the undersigned Veterans Law Judge in April 2017.

This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for a heart condition, prostate cancer, glaucoma, a left knee replacement, and obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In the September 2007 rating decision, the RO denied the Veteran's claims of service connection for heart condition, prostate cancer, a knee replacement, and glaucoma; he did not perfect a timely appeal or submit additional evidence within one year thereof. 

2. The evidence added to the file subsequent to the September 2007 rating decision relates to previously unestablished facts and presents a reasonable possibility of substantiating the claims of service connection for heart condition, prostate cancer, a knee replacement, and glaucoma.


CONCLUSIONS OF LAW

1. New and material evidence has been submitted to reopen the claim of service connection for a heart condition. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2016).  

2. New and material evidence has been submitted to reopen the claim of service connection for prostate cancer. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

3. New and material evidence has been submitted to reopen the claim of service connection for a knee replacement. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

4. New and material evidence has been submitted to reopen the claim of service connection for glaucoma. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

This decision to reopen all of the previously denied claims is completely favorable to the Veteran. Therefore, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations.

The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. 
§ 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. 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).

The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.

Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the Veteran's claim in light of all the evidence. Justus, 3 Vet. App. at 512.

The RO previously denied service connection for a heart condition, prostate cancer, a knee replacement, and glaucoma in September 2007, finding that there was no evidence of a nexus between the disabilities and the Veteran's active military service. The Veteran did not file a timely notice of disagreement, nor did he submit additional new and material evidence within a year of the rating decision, and therefore the rating decision became final. See 38 C.F.R. § 3.156 (b).

In July 2010, the Veteran filed his request to reopen his claims.  New evidence received subsequent to the September 2007 rating decision includes a July 2010 statement by the Veteran stating that he was exposed to ionizing radiation while serving in Japan and April 2017 videoconference hearing testimony providing additional assertions regarding a nexus between the Veteran's active military service and his disabilities. The Board finds that the new evidence received since the September 2007 rating decision is material to reopen claims of service connection for heart condition, prostate cancer, a knee replacement, and glaucoma, as it pertains to the issue of whether there is a nexus between the Veteran's disabilities and his active military service.  Accordingly, the Board finds that new and material evidence sufficient to reopen the Veteran's claim of service connection for heart condition, prostate cancer, a knee replacement, and glaucoma has been received, and the claims are reopened. See 38 C.F.R. § 3.156.


ORDER

The application to reopen a claim of entitlement to service connection for a heart condition is granted.

The application to reopen a claim of entitlement to service connection for prostate cancer is granted.

The application to reopen a claim of entitlement to service connection for a left knee replacement is granted.

The application to reopen a claim of entitlement to service connection for glaucoma is granted.


REMAND

Unfortunately, a remand is required in this case for the issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration.

The Veteran has testified that he hurt his left knee during service while participating in track and field. He stated that he treated the injury himself by rubbing it and using pain medication. 

The Veteran also testified that he did not get regular sleep in service and he believes this contributed to his current sleep apnea. 

Additionally, the Veteran testified that during his service in Japan, he was exposed to ionizing radiation. Development needs to be undertaken by the AOJ regarding the Veteran's ionizing radiation statements. 

Given the above, the low threshold for providing a VA examination in order to obtain a medical opinion has been met in this case. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Undertake the appropriate development to determine whether the Veteran was exposed to ionizing radiation during his active military service.

2. Obtain and associate the Veteran's updated VA treatment records. 

3. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of any current heart condition, prostate cancer, glaucoma, left knee replacement, and obstructive sleep apnea. 

The claims file, including a copy of this REMAND, should be made available to the examiner(s).

All appropriate tests and studies should be conducted.

After a review of the record on appeal, the examiner should respond to the following for any current heart condition, prostate cancer, glaucoma, left knee replacement, and obstructive sleep apnea:

Is it at least as likely as not that the Veteran's current disability is etiologically related to his military service?

Was the Veteran's current disability manifest during service or within one year of separation from service?

The examiner must address the Veteran's statements of continuous symptoms and treatment of knee pain symptoms since service and heart and urinary symptoms since shortly after service.

A complete rationale should be provided for all opinions expressed. If the VA examiner finds that he or she must resort to speculation to render the requested opinion, he or she must state, with specificity, why this would require resort to speculation.

4. Then, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board.

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.



______________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs