Citation Nr: 18147367 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-35 119 DATE: November 5, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for foot fallen arches with callosities has been received, the application to reopen this issue is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for an eye disorder has been received, the application to reopen this issue is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for hypertension has been received, the application to reopen this issue is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for diabetes mellitus type II (DMII) has been received, the application to reopen this issue is granted. Entitlement to service connection for gout/arthritis is denied. Entitlement to service connection for DMII is denied.   REMANDED Entitlement to service connection for foot fallen arches with callosities is remanded. Entitlement to service connection for loss of toe/part of right foot is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for peripheral vascular disease. Entitlement to service connection for an eye disorder is remanded. FINDINGS OF FACT 1. An unappealed March 1993 rating decision denied service connection for fallen arches (with callosities); a subsequent unappealed rating decision in September 2004 continued the denial. 2. Evidence received since the September 2004 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for fallen arches with callosities. 3. The unappealed September 2004 rating decision also denied service connection for an eye disorder, hypertension, and DMII. 4. Evidence received since the September 2004 rating decision relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for an eye disorder, hypertension, and DMII. 5. It is not shown that the Veteran served in the Republic of Vietnam or was exposed to an herbicide agent (to include Agent Orange) during service. 6. Gout/arthritis did not manifest in service, within the one year presumptive period or for many years thereafter, and is not otherwise related to service, to include exposure to harmful chemicals or biological warfare agents from Project 112/SHAD. 7. DMII did not manifest in service, within the one year presumptive period or for many years thereafter, and is not otherwise related to service, to include exposure to harmful chemicals or biological warfare agents from Project 112/SHAD. CONCLUSIONS OF LAW 1. The September 2004 rating decision that denied entitlement to service connection for fallen arches with callosities, an eye disorder, hypertension, and DMII is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the September 2004 rating decision is new and material and serves to reopen the claims of entitlement to service connection for fallen arches with callosities, an eye disorder, hypertension, and DMII. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for gout/arthritis are not met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.317. 4. The criteria for service connection for DMII are not met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to April 1963 in the US Army and from September 1963 to September 1967 in the US Navy. The Veteran died in August 2016 and his appeal was subsequently dismissed by the Board in August 2018. Since then, the Appellant, his surviving spouse, has been substituted for the Veteran as the claimant. The record indicates that the Veteran may have been diagnosed with additional eye disorders. See June 2014 Correspondence. Accordingly, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence A claim that has been denied in an unappealed (Regional Office) RO decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted sufficient to reopen the claim for entitlement to service connection for fallen arches with callosities. In March 1993, the Agency of Original Jurisdiction (AOJ) denied service connection for fallen arches with callosities. The basis for the denial was that there was no evidence in the Veteran’s service treatment records (STRs) or on military separation of any foot problems and there was no indication that there was any relationship between the current disorder and military service. The Veteran did not appeal that denial, or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). The subsequent unappealed rating decision in September 2004 continued the denial, finding that there was no evidence to show that the Veteran’s current finding of calluses was related to his military service. The September 2004 rating decision is the most recent final decision regarding the claim for service connection for fallen arches with callosities. In May 2012, the Veteran submitted a request to reopen his previously denied claim for service connection for fallen arches with callosities. After a review of the evidence submitted since the September 2004 rating decision, the Board finds that the claim should be reopened. In pertinent part, the newly submitted evidence includes the Veteran’s lay statement that he has suffered from foot calluses/sores continuously since service. See June 2014 correspondence. This additional evidence was not previously of record and relates to unestablished facts necessary to substantiate this claim. Accordingly, this claim is reopened. 2. Whether new and material evidence has been submitted sufficient to reopen the claims for entitlement to service connection for an eye disorder, hypertension, and DMII. In the unappealed September 2004 rating decision, the AOJ also denied service connection for an eye disorder, hypertension, and DMII. The basis for the denial was that there was no evidence that these disorders were related to the Veteran’s military service or that they manifested to a compensable degree within one year following separation from service. The Veteran did not appeal these denials, or submit new and material evidence within one year of the decision. Therefore, the September 2004 rating decision is final. In May 2012, the Veteran submitted a request to reopen his previously denied claim for service connection for an eye disorder, hypertension, and DMII. Evidence received since the September 2004 rating decision includes the Veteran’s lay statements. These statements include his assertions that his DMII was caused by exposure to chemicals as a result of his participation in project SHAD, that his hypertension began in service and has continued since, and that his eye disorder was related to his hypertension. See January 2013 and June 2014 Correspondence. This additional evidence was not previously of record and relates to unestablished facts necessary to substantiate these claims. Thus, these claims are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For chronic diseases, service connection may be established if there was manifestation during and after service absent an intercurrent cause. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology after service is required if the disease was noted but not chronic or chronicity was questionable during service. Id.; Savage v. Gober, 10 Vet. App. 488 (1997). A rebuttable presumption of service connection exists for chronic diseases when a veteran served for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within the first year after service. 38 U.S.C. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 116(f); 38 C.F.R. §§ 3.307(a), 3.309(e). Presumptive herbicide exposure requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 3. Entitlement to service connection for gout/arthritis and DMII. The Appellant has continued the Veteran’s appeal for service connection for gout/arthritis and DMII. However, the Veteran’s STRs, to include his August 1967 service separation examination report, are silent for any complaints, findings, treatment, or diagnosis related to gout/arthritis and DMII. Postservice treatment records also show that gout/arthritis and DMII were not diagnosed until many years after the Veteran’s separation from service. Specifically, the Veteran’s private treatment records indicate that DMII was diagnosed in February 2000, over 32 years after service. See February 2000 Family Physician Group. Moreover, the Veteran’s VA treatment records indicate that his arthritis was diagnosed as early as 2001, 33 years after service. See November 2003 VA Treatment records. The Board acknowledges that there are no STRs from the Veteran’s first period of Army service from October 1962 to April 1963. However, his September 1963 entrance examination from his second period of service (dated a few months after his first period of service) was normal. Moreover, in a report of medical history completed by the Veteran at the time of that examination he denied having any problems. Therefore, the Board finds that he did not have any ongoing problems related to gout/arthritis and/or DMII during his first period of service. In a July 2004 statement, the Veteran contended that after leaving the Army and entering the Navy he had high blood sugar or high blood pressure. See July 2004 Correspondence. Significantly, however, the Veteran also indicated he was not sure whether he had high blood pressure or high blood sugar. Id. A review of the Veteran’s STRs from September 1963 (when he entered Navy) clearly shows that his sugar was negative, although he did have elevated blood pressure. Accordingly, the statement based on the Veteran’s memory recall that he had high blood sugar when entering the Navy is clearly outweighed by the documented evidence of record. The Board reiterates that the Veteran’s STRs are silent for any findings/diagnoses related to DMII. Based on the foregoing information, there is no evidence that the Veteran’s gout/arthritis and/or DMII manifested in service or to a compensable degree in the first year following his separation from active duty service. Notably, neither the Veteran nor the Appellant has alleged (nor have they submitted competent evidence to show) that the Veteran suffered from gout/arthritis and/or DMII continuously since service. See 38 C.F.R. § 3.303(b). Consequently, service connection for gout/arthritis and DMII on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Service connection for gout/arthritis and DMII may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s gout/arthritis and/or DMII and his military service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran’s postservice treatment records show only the diagnosis and treatment for gout/arthritis and DMII. There is simply no evidence to establish that a nexus exists between gout/arthritis and/or DMII and the Veteran’s active duty service. The Board acknowledges the Veteran’s contention that his gout/arthritis and/or DMII were related to his participation in Project 112/SHAD. See March 2013 Report of General Information. The AOJ undertook development to verify the Veteran’s participation in Project 112/SHAD, and a search of the U.S. Department of Defense’s (DoD) Chemical Biological Warfare Exposure System database was conducted. See March and April 2013 VA Memos. However, the search results were negative and the DoD was unable to ascertain any exposure. Id. Consequently, the Board finds that service connection for gout/arthritis and/or DMII based on exposure to chemical or biological agents in the Navy resulting from participation in Project 112/SHAD is not warranted. The Veteran also contended that his gout/arthritis and DMII were the result of exposure to herbicide agents (including Agent Orange) in service. DMII is one of those diseases that has been determined to be presumptively related to herbicide agents exposure, but gout/arthritis is not. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, an essential element to be established in this claim is that the Veteran was exposed to an herbicide agent in service. A review of the Veteran’s service personnel records does not show that his “service involved duty or visitation in the Republic of Vietnam,” or that he served in a Korean or Thai unit exposed to herbicide agents (and was thus exposed to any herbicide agents, including Agent Orange). By the same token, the Veteran has not asserted that he served in the Republic of Vietnam or in a Korean or Thai unit exposed to herbicide agents. Rather, in the course of the appeal, the Veteran asserted that he was exposed to herbicide agents while serving in Hawaii. Specifically, he asserted that he spent time on ships fueling them and getting them ready for take-off, and the ships stored large barrels believed to be Agent Orange. Based on the Veteran’s assertions, efforts were undertaken to determine whether he might have been exposed to herbicide agents while serving in Hawaii. In October 2013, the Department of the Army, U.S. Army and Joint Services Records Research Center (JSRRC) stated that they had reviewed the Veteran’s statements that he was exposed to Agent Orange while aboard an aircraft carrier as well as his personnel records and service treatment records, and found no evidence to indicate the Veteran was exposed to herbicide agents. Absent either credible evidence of herbicide agent exposure or corroborating evidence of actual exposure to herbicide agents in service, the Board finds there is no basis for awarding service connection for either gout/arthritis or DMII due to herbicide agent exposure. In sum, the Board finds that the weight of the probative evidence does not support direct service connection or presumptive service connection, to include as due to herbicide agent exposure, for gout/arthritis or DMII. As the preponderance of the evidence is against the claims for service connection for gout/arthritis and DMII, the benefit of the doubt doctrine does not apply and the claims are denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for fallen arches with callosities, loss of toe/part of right foot, and hypertension. The Veteran’s VA treatment records document left and right foot problems and hypertension, which were present during the course of this appeal. See May 2013 and July 2013 VA Treatment records. Moreover, STRs show evidence of left/right foot problems during active duty service and the Veteran’s September 1963 service induction examination shows elevated blood pressure findings. To date, no VA medical opinions have been obtained with regard to these disabilities. However, the Board finds that this evidence is sufficient to trigger VA’s duty to obtain a VA medical opinion to determine the etiology of these disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006); see also 38 C.F.R. § 3.159(c). 2. Entitlement to service connection for coronary artery disease (CAD), eye disorder, and peripheral vascular disease are remanded. In correspondence received in June 2014, the Veteran contended that his CAD, eye disorder, and peripheral vascular disease were secondary to his hypertension. As such, these issues are inextricably intertwined with the claim for service connection for hypertension remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Consequently, remand of the inextricably intertwined claims for service connection for CAD, eye disorder, and peripheral vascular disease is also required. The matters are REMANDED for the following actions: 1. The AOJ should attempt to obtain the Veteran’s service treatment records from his first period of service in the US Army from October 1962 to April 1963. 2. With the Appellant’s assistance, the AOJ should also attempt to obtain all outstanding VA and private treatment records. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 3. Following the record development above, obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran’s left and right foot disorders. Based on a review of the evidence of record, the examiner should respond to the following: a) What are the left and/or right foot diagnoses present during the course of the appeal? b) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed left and/or right foot disorder is related to active duty service. In rendering the above opinion, the examiner should specifically consider and discuss the October 1964 service treatment record indicating trauma to the left great toe and the June 1965 service treatment record indicating sore on the heel of the right foot. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Following the record development above, obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran’s hypertension. Based on a review of the evidence of record, the examiner should respond to the following: a) The examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that hypertension preexisted the Veteran’s second period of service in the Navy from September 1963 to September 1967? b) If it is determined that hypertension clearly and unmistakably preexisted the second period of service, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that hypertension is related to the Veteran’s active duty service in the Army from October 1962 to April 1963. c) If the response to paragraph (b) is negative, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting hypertension was not aggravated beyond the natural progression of the condition by the Veteran’s second period of service in the Navy from September 1963 to September 1967? The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. d) If hypertension did not clearly and unmistakably preexist the Veteran’s second period of service from September 1963 to September 1967, did it at least as likely as not (i.e., 50 percent probability or greater) have its onset during this period of service or is it otherwise related to service? In rendering the above opinion, the examiner should specifically consider and discuss the September 1963 service induction examination showing elevated blood pressure at 140/86. 5. If, and only if, the AOJ determines that service connection is warranted for hypertension, the AOJ should procure an addendum opinion from the VA examiner who evaluated the etiology of the Veteran’s hypertension or, otherwise, an appropriate examiner. The examiner is instructed to opine as to whether the Veteran’s CAD, eye disorder, and/or peripheral vascular disease were caused or aggravated by his hypertension. For the purpose of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel