Citation Nr: 1754481	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-31 472A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1. Entitlement to service connection for sleep apnea.

2. Entitlement to service connection for a bilateral foot condition, including plantar fasciitis but excluding calluses of both feet.

3. Entitlement to service connection for a neck condition.

4. Entitlement to service connection for a low back condition.

5. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for prostate cancer.

6. Entitlement to service connection for prostate cancer due to exposure to contaminated water at Camp Lejeune, North Carolina, or as due to exposure to environmental hazards in the Southwest Asia theater of operations.

7. Entitlement to service connection for epididymitis, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina.

8. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Mark R. Lippman, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N.S. Pettine, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1973 to January 1994, to include service in the Southwest Asia theater of operations.

This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2012 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in San Diego, California and Louisville, Kentucky.  Jurisdiction of the Veteran's claims file currently resides with the San Diego, RO.

In March 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the Veteran's claims file.   

The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  As the Veteran has been diagnosed with various conditions of the feet, the Board has restyled the claim for service connection for plantar fasciitis as indicated on the cover page.

The issues of (1) service connection for sleep apnea; (2) service connection for a bilateral foot condition; (3) service connection for a low back condition; (4) service connection for prostate cancer; (5) service connection for epididymitis; and (6) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Resolving all reasonable doubt in the Veteran's favor, the evidence of record indicates that the Veteran's current neck condition is related to service.

2. An unappealed July 2003 rating decision denied a claim for entitlement to service connection for prostate cancer.  Evidence received since the unappealed July 2003 rating decision relates to prior unestablished facts.


CONCLUSIONS OF LAW

1. The criteria for service connection for a neck condition have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017).

2. The July 2003 rating decision is final; new and material evidence has been received to reopen the claim of service connection for prostate cancer.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection for a Neck Condition

As indicated above, the Board finds that the Veteran's current neck condition is related to service.  Accordingly, the Board will grant the Veteran's claim.

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and 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.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

In this case, the Board first finds that the evidence demonstrates that the Veteran has a current diagnosis of a neck condition.  Indeed, during an August 2013 VA examination, the Veteran was diagnosed with cervical spondylosis and cervical radiculopathy.

Next, the Board finds that the record demonstrates in-service injuries to the neck.  Specifically, during the March 2017 Board hearing, the Veteran credibly testified that he hurt his neck in service during a motor vehicle accident in 1976 after the vehicle careened off of a mountaintop road into a ravine.  See Hearing Tr. at 16-17.  Additionally, the Veteran testified that he hurt his neck on a separate occasion in service when he was wrestling.  Id. at 22-23.  The Veteran's service treatment records (STRs) support his testimony as a November 1976 STR notes a motor vehicle accident and in a March 1978 STR, the Veteran was assessed with a severe muscle strain in the neck area after the Veteran reported soreness and headaches following a recent bout of wrestling.

Lastly, the Board finds positive nexus evidence linking the Veteran's current neck condition to service.  In the August 2013 VA examination, the Veteran described the motor vehicle accident and the wrestling incident to the examiner.  After evaluating the Veteran, the examiner remarked that the Veteran's current neck findings were compatible with the injuries he described during his active duty time.  Accordingly, as the Veteran has met all the required elements for service connection, the Board will grant the claim.

In making this determination, the Board is cognizant of the opinion rendered by a VA clinician in September 2013 who stated that Veteran did not suffer from a neck condition related to service.  However, the Board affords the September 2013 VA clinician's opinion less probative weight as it unclearly stated that the Veteran both did and did not have a current neck disability.  

In sum, the evidence demonstrates that it is at least as likely as not that the Veteran's current neck condition is related to service.  As such, the Board will grant the Veteran's claim.  See 38 C.F.R. § 3.303(a).

New and Material Evidence 

In a July 2003 rating decision, the RO denied a claim for entitlement to service connection for prostate cancer.  The RO notified the Veteran of the rating decision via a letter later that month.  The Veteran neither appealed nor submitted additional evidence within one year of that decision; therefore, it became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108.

New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

At the time of the July 2003 rating decision, the RO considered: the Veteran's STRs; statements from the Veteran dated April and July 2001; a response from the National Personnel Records Center (NPRC) dated April 2003 indicating that the Veteran had no service in the Republic of Vietnam; medical treatment records from the Naval Hospital at Camp Pendleton, California dated from December 1999 through October 2000; medical treatment records from the Naval Medical Center in San Diego, California dated from May 2000 through March 2001; medical treatment records from NAVCARE in Tustin, California dated June 1992 and March 1994; and VA examination reports from October 1995, June 2001, and April 2003.  The RO denied the Veteran's prostate cancer claim because (1) there was no treatment for or diagnosis of prostate cancer in service, and (2) there was no nexus between the Veteran's prostate cancer and service.  Notably, the RO did not discuss the any service at Camp Lejeune in reaching its decision.

Evidence received since the July 2003 rating decision consists of post-service VA treatment records, additional treatment records from non-VA providers, lay statements submitted by the Veteran, an August 2013 VA medical opinion, and testimony from the March 2017 Board hearing.  This evidence is "new," as it was not previously submitted to agency decision makers.  Some of it is also "material," as it addresses the reasons for the prior denial.   

Specifically, at the March 2017 Board hearing, the Veteran discussed his service at Camp Lejeune and VA's acknowledgement that Veterans who served at Camp Lejeune during his period of service were exposed to contaminants in the water supply.  See Hearing Tr. at 26; see also 38 C.F.R. § 3.307(a)(7).  Additionally, the Veteran also testified that he believed that his prostate cancer could have been caused by environmental hazards that he was exposed to while serving in Southwest Asia-burning oil in particular.  Hearing Tr. at 26-29.  Stated succinctly, the Veteran raised new theories of entitlement that were not previously developed by the RO at the time of the July 2003 rating decision.

Accordingly, as this new evidence relates to unestablished facts that are necessary to substantiate the Veteran's claims, the Board finds that new and material evidence has been received.  As such, the claim will be reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).


ORDER

Service connection for a neck condition is granted.

New and material evidence having been received, the claim of entitlement to service connection for prostate cancer is reopened.


REMAND

Although the Board regrets the additional delay, remand is required prior to the adjudication of the Veteran's claims for: (1) service connection for sleep apnea; (2) service connection for a bilateral foot condition; (3) service connection for a low back condition; (4) service connection for prostate cancer; (5) service connection for epididymitis; and (6) entitlement to a TDIU.

Sleep Apnea

After reviewing the record, the Board finds that remand is appropriate in order to provide the Veteran with a VA examination in regard to his sleep apnea claim.  Specifically, the record currently demonstrates that: (1) The Veteran has a current diagnosis of sleep apnea; (2) there is an indication that the Veteran either had sleep apnea or displayed sleep apnea symptoms in service; but (3) there is not yet sufficient medical evidence for the Board to make a decision on the claim.  Accordingly, the Board will remand the matter so that sufficient nexus evidence may be obtained.

Bilateral Feet

The Board finds that these claims must be remanded as the current VA medical opinions of record are inadequate for adjudicative purposes.

A medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

In regard to the Veteran's claim for service connection for a bilateral foot condition, a VA medical opinion was rendered in September 2013.  The clinician acknowledged that the Veteran had currently diagnosed foot conditions of plantar fasciitis, pes planus, hammertoes, and heel pain.  Additionally, the clinician noted that the Veteran had foot injuries recorded in service.  However, the clinician opined that the current foot conditions were not related to the foot conditions noted during the Veteran's active duty service.  In support of this opinion, the clinician explained that in service, the Veteran had issues regarding his 5th metatarsal heads but the current conditions of pes planus, plantar fasciitis, heel pain, and hammer toes did not involve the 5th metatarsal.

Subsequent to the VA opinion rendered in September 2013, the Veteran provided testimony at the March 2017 Board hearing regarding his feet.  At the hearing, the Veteran indicated that his feet were impacted by a twenty-year career in the United States Marine Corps.  See Hearing Tr. at 11-12.  Additionally, in an August 2015 statement, the Veteran described the toll that that training took on his feet, including long marches carrying heavy loads and repeatedly jumping out of helicopters.  Due to this information received after the September 2013 VA medical opinion, the Board will remand the matter so that the Veteran may be afforded an additional VA examination or medical opinion.

Low Back

Similarly, the Board will also remand the Veteran's low back claim due to the inadequacy of a VA medical opinion currently associated with the Veteran's claims file.  Specifically, in August 2013, a VA clinician opined that the Veteran currently had a disability of the lumbar spine that was not related to service.  In support of this opinion, the clinician remarked that the Veteran stated that he did not have recurrent back pain at separation from service and that lumbar spine x-rays in 1995 failed to show degenerative disc disease.  The clinician concluded that the Veteran's current disability of lumbar spine degenerative disc disease was not related to a specific injury in service, but rather more likely related to (1) long term wear and tear, and (2) obesity.  

However, the Board finds this opinion inadequate for adjudicative purposes.  Specifically, at the March 2017 Board hearing, the Veteran testified that he had always had back pain since service.  Hearing Tr. at 22-23.  Further, in light of the Veteran's August 2015 statement mentioned previously regarding long marches carrying heavy loads, the August 2013 VA clinician's opinion is additionally inadequate as it did not discuss the cumulative effect of the Veteran's military experience.  For these reasons, the Board will remand the matter so that an additional VA examination or medical opinion may be obtained.

Prostate Cancer

In regard to the Veteran's prostate cancer claim, the Board finds that remand is appropriate in light of the Veteran's testimony at the March 2017 Board hearing that his prostate cancer could have been caused by exposure to environmental hazards during service in Southwest Asia.  See Hearing Tr. at 26-29.    

As the Veteran has confirmed service in the Southwest Asia theater of operations and an opinion as to this issue has not yet been rendered, the Board finds that this development must occur prior to a decision on the merits of the Veteran's claim.

Epididymitis

The Board also finds that remand is appropriate in regard to the Veteran's epididymitis claim as the current VA medical opinion of record is inadequate for adjudicative purposes.  Specifically, in August 2013, a VA clinician opined that the Veteran did not currently have epididymitis.  The clinician explained that while the Veteran received treatment for this condition in service, it appeared that the condition had resolved.  However, an August 2015 VA treatment record documented a possible relationship between the Veteran's current erectile dysfunction and his history of epididymitis.  As such, the Board will remand the matter so that an additional VA examination or medical opinion may be obtained.

TDIU

A decision on the Veteran's TDIU claim would be premature at this point as it is dependent upon the outcome of the remanded claims for service connection for sleep apnea, a bilateral foot condition, a low back condition, prostate cancer, and epididymitis.  Further, it is also dependent upon the initial rating assigned by the AOJ for the Veteran's neck condition, as the Board granted that claim above.  Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Records

In a May 2013 VA treatment record, the Veteran stated that he planned to apply for disability benefits from the Social Security Administration.  However, complete documentation from SSA, including any applications and the medical records on which any decision was based, has not yet been associated with the claims file.  As those records may be relevant to the appeal, they should be obtained prior to adjudication of the Veteran's claims.  See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).

Lastly, given the need to remand the foregoing issues, updated VA treatment records should also be obtained.  In particular, the RO should attempt to obtain any VA treatment records dates since June 2017.

Accordingly, the case is REMANDED for the following action:

1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since June 2017.  If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such.

2. Obtain all records associated with any claim the Veteran submitted for Social Security disability benefits, including copies of any decisions and copies of the medical records relied upon concerning that claim.  If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such.

3. After items (1) and (2) are completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his current sleep apnea.  The clinician should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed.  

The clinician should then state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current sleep apnea had its onset in, was caused by, or is otherwise related to service.

In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, including:

* The testimony presented at the March 2017 Board hearing;

* An August 2015 statement by the Veteran;

* A September 1993 in-service report of medical history wherein the Veteran reported frequent trouble sleeping;

* A March 2012 statement by F.C., the Veteran's aunt;

* October 2011 statements by the Veteran's spouse; D.G. and K.L, the Veteran's friends; Dr. Ojeda, the Veteran's niece; and F.G., the Veteran's brother-in-law; and

* A December 2009 sleep study interpreted by Dr. Munafo.

For any opinion provided, the clinician should provide a complete rationale.  If he or she cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.).

4. After items (1) and (2) are completed to the extent possible, send the Veteran's claims filed to an appropriate clinician to determine the nature and etiology of a bilateral foot condition.  The claims file, including a copy of this remand, must be made available to and reviewed by the clinician.  If, after reviewing the Veteran's claims file, the clinician believes that an examination is appropriate, one should be scheduled and conducted.  Then, the clinician should address the following:

(a) Please identify any current foot condition(s), other than calluses of both feet for which the Veteran has already been granted service connection.  

Please note that although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing (September 2011) meet the criteria for a "current" diagnosis.  For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed.

(b) For each condition identified, please state whether it is at least as likely as not (50 percent probability or more) that the condition had its onset in, was caused by, or is otherwise related to service-to include running, marching, and rappelling from helicopters over the course of 20-plus years of active duty service with the United States Marine Corps.

In offering any opinion, please should consider medical and lay evidence dated both prior to and since the filing of the claim, including:

* The testimony presented at the March 2017 Board hearing; and

* The Veteran's August 2015 statement.

For any opinion provided, please provide a complete rationale.  If you cannot provide an opinion without resorting to speculation, please explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.).

5. After items (1) and (2) are completed to the extent possible, send the Veteran's claims filed to an appropriate clinician to determine the nature and etiology of a low back condition.  The claims file, including a copy of this remand, must be made available to and reviewed by the clinician.  If, after reviewing the Veteran's claims file, the clinician believes that an examination is appropriate, one should be scheduled and conducted.  

The clinician should then state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current low back condition had its onset in, was caused by, or is otherwise related to service-to include running, marching, and rappelling from helicopters over the course of 20-plus years of active duty service with the United States Marine Corps.

In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, including:

* The testimony presented at the March 2017 Board hearing; and
* The Veteran's August 2015 statement.

For any opinion provided, the clinician should provide a complete rationale.  If he or she cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.).

6. After items (1) and (2) are completed to the extent possible, send the Veteran's claims filed to an appropriate clinician to determine the nature and etiology of the Veteran's prostate cancer.  The claims file, including a copy of this remand, must be made available to and reviewed by the clinician.  If, after reviewing the Veteran's claims file, the clinician believes that an examination is appropriate, one should be scheduled and conducted.  

The clinician should state whether it is at least as likely as not (50 percent probability or more) that the Veteran's prostate cancer had its onset in, was caused by, or is otherwise related to service-to include as due to exposure to environmental hazards in the Southwest Asia theater of operations

In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim.

For any opinion provided, the clinician should provide a complete rationale.  If he or she cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.).

7. After items (1) and (2) are completed to the extent possible, send the Veteran's claims filed to an appropriate clinician in regard to the Veteran's claim for service connection for epididymitis.  The claims file, including a copy of this remand, must be made available to and reviewed by the clinician.  If, after reviewing the Veteran's claims file, the clinician believes that an examination is appropriate, one should be scheduled and conducted.  Then, the clinician should address the following:

(a) Please state whether the Veteran currently has epididymitis or any residuals of prior epididymitis.

(b) If the Veteran currently has epididymitis, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current epididymitis had its onset in, was caused by, or is otherwise related to service-to include as due to exposure to contaminated water at Camp Lejeune.

(c) If the Veteran currently suffers from any residuals of epididymitis, please state whether it is at least as likely as not (50 percent probability or more) that the residual is related to the epididymitis documented in the Veteran's STRs.

In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim.

For any opinion provided, please provide a complete rationale.  If you cannot provide an opinion without resorting to speculation, please explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.).

8. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal.  If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

The Veteran 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. §§ 5109B, 7112 (2012).




______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs