Citation Nr: 18140099 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-06 527 DATE: October 2, 2018 ORDER As new and material evidence has been submitted regarding the claim for service connection for hypertension, to include as secondary to service-connected left foot injury, the Veteran’s claim is reopened. As new and material evidence has been submitted regarding the claim for service connection for diabetes mellitus, type II, the Veteran’s claim is reopened. REMANDED Entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for a stroke, to include as secondary to hypertension or ischemic heart disease, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected left foot injury, is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected plantar fasciitis, bone spurs, and arthritis of the right foot (including calcaneal spur) is remanded. Entitlement to an evaluation in excess of 30 percent for service-connected left foot injury is remanded. FINDINGS OF FACT 1. By a February 2006 rating decision, the Veteran’s claim for service connection for hypertension was denied due to lack of evidence showing hypertension to be related to the Veteran’s service-connected left foot injury and lack of any evidence of hypertension during service. 2. Evidence received since the February 2006 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating claim for service connection for hypertension. 3. By a June 2009 rating decision, the Veteran’s claim for service connection for diabetes mellitus, type II was denied in part due to a lack of evidence of in-service exposure to Agent Orange or herbicides. 4. Evidence received since the June 2009 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating claim for service connection for diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The February 2006 rating decision denying the Veteran’s claim for service connection for hypertension, to include as secondary to service-connected left foot injury, is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim for service connection for hypertension, to include as secondary to service-connected left foot injury, has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The June 2009 rating decision denying the Veteran’s claim for service connection for diabetes mellitus, type II is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence sufficient to reopen the Veteran’s claim for service connection for diabetes mellitus, type II has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to September 1975. The Veteran also served subsequently in the United States Naval Reserve. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. New and Material Evidence The issues for resolution before the Board are whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claims of entitlement to service connection for diabetes mellitus, type II and for hypertension. The claim for service connection for diabetes mellitus, type II was previously denied in a June 2009 rating decision, and the claim for service connection for hypertension was previously denied in a February 2006 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The Veteran’s diabetes mellitus, type II claim was denied in June 2009 in part due to a lack of evidence of in-service exposure to herbicides or Agent Orange. The Veteran’s hypertension claim was denied in February 2006 due to lack of evidence showing hypertension to be related to the Veteran’s service-connected left foot injury and lack of any evidence of hypertension during service. At the time of these denials, the Veteran’s service treatment records, VA treatment records, and statements were considered. The new evidence submitted since this denial consists primarily of statements and hearing testimony from the Veteran and post-service medical records. With regard to the newly submitted lay statements and hearing testimony, the Veteran has submitted new testimony and statements outlining further details regarding his alleged exposure to Agent Orange and herbicides in service. See hearing transcript, December 2017; Veteran’s statement, December 2011. Moreover, the Veteran indicated in his February 2011 claim that he believes his hypertension could be related to Agent Orange exposure. In light of these new allegations and details, the Board finds that this newly submitted evidence relates to unestablished facts necessary to substantiate these claims. As such, these claims are reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease, hypertension, and diabetes mellitus, type II is remanded. It appears from the Veteran’s February 2011 claim that he is asserting that his ischemic heart disease, hypertension, and diabetes mellitus, type II could be related to in-service exposure to herbicides or Agent Orange. In a February 2011 statement, the Veteran asserted that he served on the USS Blue Ridge, where they took Marine generators ashore while docked in Saigon during 1973 and 1975. He stated that his ship also docked in Cam Ranh Bay and delivered Marine generators ashore. On his February 2016 VA Form 9, the Veteran reported that, while onboard the USS Blue Ridge from 1973 to September 1975, he helped deliver equipment to Americans engaged in Operation “Endsweep” for the clearing of American mines from North Vietnamese waters. The ship’s history that he submitted and highlighted in 2011 shows this operation was in July 1973. The Veteran stated the USS Blue Ridge operated in the inland waterways and had many Vietnamese refugees come aboard. The ship’s history that he submitted and highlighted in 2011 shows this occurred in April 1975. At the December 2017 hearing, the Veteran again stated that he was exposed to herbicides or Agent Orange while serving on the USS Blue Ridge. The Veteran testified that he did not leave the boat or go onto land in Vietnam. He testified that the USS Blue Ridge operated in the inland waterways around Vietnam and did not dock at all in Vietnam. He clarified that the equipment and generators previously mentioned were delivered via helicopters. It was suggested at the hearing that the Veteran could have been exposed to Agent Orange or herbicides via the wind from helicopters traveling from boat to land. The Board acknowledges that the Veteran’s accounts of docking ashore have been inconsistent. However, in light of the Veteran’s medical history, which includes diagnoses of residuals mild vascular dementia and vascular parkinsonism, the Board finds that attempts should be made to verify all reports of in-service exposure to Agent Orange or herbicides. With regard specifically to the Veteran’s hypertension claim, the Board finds that a VA opinion should be obtained addressing the etiology of the Veteran’s hypertension, to include a potential relationship between hypertension and his service-connected foot disabilities. 2. Entitlement to service connection for a stroke, to include as secondary to hypertension or ischemic heart disease is remanded. The Board acknowledges that a VA opinion has already been obtained in June 2011 addressing a possible relationship between the Veteran’s hypertension and a stroke. However, the claims file contains no medical opinions addressing a potential relationship between ischemic heart disease and a stroke. Moreover, the claims file contains no medical opinions addressing a possible relationship between a stroke and exposure to Agent Orange or herbicides. As such, in light of the Veteran’s February 2011 claim, and, if and only if, in-service exposure to herbicides or Agent Orange is verified, VA medical opinions should be obtained on these matters. 3. Entitlement to an evaluation in excess of 10 percent for service-connected plantar fasciitis, bone spurs, and arthritis of the right foot (including calcaneal spur) and entitlement to an evaluation in excess of 30 percent for service-connected left foot injury is remanded. All outstanding VA treatment records should be associated with the claims file. The Veteran underwent a pertinent VA examination most recently in June 2011. In light of the Veteran’s hearing testimony, his assertion in the February 2016 VA Form 9 that his left and right foot injuries have increased in severity, and the fact that several years have passed since the June 2011 VA examination, the Veteran should be scheduled for a new VA examination to determine the current severity of his service-connected plantar fasciitis, bone spurs, and arthritis of the right foot (including calcaneal spur) and his service-connected left foot injury. The matters are REMANDED for the following action: 1. Ask the United States Army and Joint Service Records Research Center (JSRRC) to verify the Veteran’s reports of the following: a. Delivering Marine generators ashore while docked in Saigon and/or in Cam Ranh Bay in July 1973 and April 1975 while serving on the USS Blue Ridge; b. Being aboard the USS Blue Ridge while operating in the inland waterways around Vietnam in July 1973, to include delivering equipment needed by Americans engaged in Operation “Endsweep” for the clearing of American mines from the North Vietnamese waters and allowing Vietnamese refugees to come onboard in April 1975. Pertinent daily logs should be reviewed in order to help verify the assertions. 2. Obtain all outstanding treatment records from the North Florida/South Georgia Veterans Health System from January 2007 to the present. 3. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected plantar fasciitis, bone spurs, and arthritis of the right foot (including calcaneal spur) and his service-connected left foot injury. The examiner should opine as to the impact of the Veteran’s bilateral foot disabilities on his ability to obtain and maintain substantially gainful employment. 4. If, and only if, in-service exposure to herbicides or Agent Orange is verified, schedule the Veteran for a pertinent VA examination for his claimed stroke. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. The, the examiner should respond to the following: a. Whether it is at least as likely as not that any stroke or residuals of a stroke were caused or aggravated by his ischemic heart disease? b. Whether it is at least as likely as not that the Veteran’s strokes or residuals of strokes were caused or aggravated by Agent Orange or herbicide exposure? The examiner is advised that simply stating strokes or residuals of strokes are not on the list of diseases presumptively associated with Agent Orange exposure is not sufficient rationale for a negative opinion. The examiner is advised that the term “as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 5. Schedule the Veteran for a pertinent VA examination for his hypertension claim. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. Then, the examiner should respond to the following: a. Whether it is at least as likely as not that the Veteran’s hypertension was caused or aggravated by a service-connected disability, to include his service-connected bilateral foot conditions? b. Whether it is at least as likely as not that the Veteran’s hypertension was caused or aggravated by active duty service or incurred during or aggravated by a period of active duty for training (ACDUTRA)? c. If, and only if, in-service exposure to Agent Orange or herbicides is verified, whether it is at least as likely as not that the Veteran’s hypertension was caused or aggravated by Agent Orange or herbicide exposure? The examiner is advised that simply stating hypertension is not on the list of diseases presumptively associated with Agent Orange exposure is not sufficient rationale for a negative opinion. While hypertension is not listed on the exclusive list of presumptive diseases due to herbicide exposure under 38 C.F.R. § 3.309 (e), and is specifically excluded as being part of ischemic heart disease, the National Academy of Sciences Institute of Medicine's article titled “Veterans and Agent Orange: Update 2012,” concluded that there was “limited or suggestive” evidence of an association between herbicide exposure and hypertension. The examiner is advised that the term “as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 6. Conduct any additional development deemed necessary. 7. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Durham, Counsel