Citation Nr: 18149505 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 18-31 696 DATE: November 9, 2018 ORDER New and material evidence sufficient to reopen the claim of service connection for an arthritis disability has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for an eye disability has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for a vertigo disability has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for an erectile dysfunction disability has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for a diabetes mellitus type II disability has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for a peripheral neuropathy disability has been received, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for arthritis, to include as secondary to service-connected disability is remanded. Entitlement to service connection for an eye disability, to include as secondary to service-connected disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is remanded. Entitlement to service connection for peripheral neuropathy, to include as due to service-connected disability is remanded. Entitlement to service connection for basal cell carcinoma is remanded. Entitlement to service connection for pancreatic cancer is remanded. FINDINGS OF FACT 1. In February 2012 and March 2013, the RO issued rating decisions denying entitlement to service connection for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability. The rating decisions were not appealed and new and material evidence was not received during the one-year appeal period following those decisions, and thus, those decisions are final. 2. Evidence received since the February 2012 and March 2013 rating decisions regarding the Veteran’s claims for service connection for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability are not cumulative or redundant of the evidence previously of record, and raise a reasonable possibility of substantiating the Veteran’s claims of service connection for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability. CONCLUSIONS OF LAW 1. The February 2012 and March 2013 rating decisions are final. 38 U.S.C. §§ 7104, 7105 (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). 2. New and material evidence sufficient to reopen the claim of service connection for an arthritis disability has been received since February 2012 and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence sufficient to reopen the claim of service connection for an eye disability has been received since March 2013 and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. New and material evidence sufficient to reopen the claim of service connection for a vertigo disability has been received since February 2012 and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. New and material evidence sufficient to reopen the claim of service connection for an erectile dysfunction disability has been received since March 2013 and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 6. New and material evidence sufficient to reopen the claim of service connection for a diabetes mellitus type II disability has been received since March 2013 and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. New and material evidence sufficient to reopen the claim of service connection for a peripheral neuropathy disability has been received since March 2013 and the claim is reopened. 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 August 1961 to July 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from January 2016 and July 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran has made multiple statements regarding his eye claims, to include glaucoma, cataracts, and other eye problems. Because the Veteran, as a layperson, is not competent to distinguish between competing ophthalmological diagnoses and etiologies, a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the issue regarding the eye claim has been recharacterized as such. By way of background, the Veteran was originally denied service connection for diabetes mellitus and arthritis in February 2003, May 2003, and March 2013 rating decisions. Service connection was originally denied for erectile dysfunction, peripheral neuropathy, and an eye disability in a March 2013 rating decision. Service connection for vertigo was originally denied in a February 2012 rating decision. The Veteran did not appeal those decisions within one year and thus those decisions became final. In October 2015, the Veteran made a claim to reopen his previous claim for service connection for the above listed issues, but was denied in a January 2016 rating decision. The Veteran filed a Notice of Disagreement in February 2016 for those claims. The basal cell carcinoma and pancreatic cancer claims were denied in a July 2017 rating decision, and the Veteran filed a Notice of Disagreement in September 2017 for those two latter claims. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In sum, the Board is satisfied that the originating agency properly processed the Veteran’s claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Petition to Reopen In February 2012 and March 2013, VA denied claims of entitlement for service connection for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability. The claims were originally denied because the evidence did not show a current disability or a nexus to service. The RO reviewed the Veteran’s available service treatment records (STRs) and his statements regarding the disorders. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). The Veteran sought to reopen this claim in October 2015. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, private treatment records, and his statements regarding his low back and right knee during and after service. The RO reopened the claim but denied the claims for the arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability in January 2016. The Veteran filed a notice of disagreement (NOD) in February 2016. VA issued a Statement of the Case (SOC) in April 2018. The Veteran perfected an appeal to the Board in October 2018. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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). 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). 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). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The evidence of record in February 2012 and March 2013 consisted of service records, including personnel records and separation examination reports, some VA treatment records, and lay statements from the Veteran. The evidence of record at that time did not establish current diagnoses or a nexus back to service for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, or a peripheral neuropathy disability. Since the February 2012 and March 2013 rating decisions, the Veteran’s file has additional VA medical records of substantial quantity and private medical treatment records through April 2018 that have been attached to the claims file. Furthermore, the Veteran has provided statements from private physicians and others with regard to his claims. This evidence is not cumulative or redundant of the evidence previously of record, and assuming its credibility for the purpose of the threshold question of whether the claim can be reopened raises a reasonable possibility of substantiating the Veteran’s claims of service connection for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability are warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). To that extent only, the claims are granted. REASONS FOR REMAND 1. Entitlement to service connection for arthritis, to include as secondary to service-connected disability is remanded. 2. Entitlement to service connection for an eye disability, to include as secondary to service-connected disability is remanded. 3. Entitlement to service connection for vertigo is remanded. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability is remanded. 5. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is remanded. 6. Entitlement to service connection for peripheral neuropathy, to include as due to service-connected disability is remanded. 7. Entitlement to service connection for basal cell carcinoma is remanded. 8. Entitlement to service connection for pancreatic cancer is remanded. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Here, the Veteran has reopened claims for entitlement to service connection for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability, plus two more claims for basal cell carcinoma and pancreatic cancer. The Veteran has also asserted that his diabetes mellitus, type II, is caused by herbicide agent exposure from his active service in Thailand from 1962 to 1963, and that his arthritis, eye disability, erectile dysfunction, and peripheral neuropathy derive from either his diabetes and/or his service-connected malaria. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA reopened the claims in 2015 for an arthritis disability, an eye disability, a vertigo disability, an erectile dysfunction disability, a diabetes mellitus type II disability, and a peripheral neuropathy disability but did not provide an examination or opinion for service connection. In addition, the basal cell carcinoma and pancreatic cancer claims have not been accorded a VA examination and opinion for service connection. Therefore, a remand is required to obtain the requisite VA examination and opinion for service connection for the claimed disabilities, to include as due to or aggravated by other service-connected disabilities where noted. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. Schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of the Veteran’s arthritis disability, eye disability, vertigo disability, erectile dysfunction disability, diabetes mellitus type II disability, peripheral neuropathy disability, basal cell carcinoma, and pancreatic cancer. The electronic claims file, to include the Veteran’s service treatment records, lay statements, and private treatment records, should be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should opine to the following for each of the diabetes, arthritis, vertigo, basal cell carcinoma, and pancreatic cancer disabilities: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s diabetes, arthritis, vertigo, basal cell carcinoma, and/or pancreatic cancer are related to his active duty service, or are otherwise related to any in-service disease, event, or injury? After reviewing the claims file and examining the Veteran, the examiner should opine to the following for each of the eye, neuropathy, and/or erectile dysfunction disabilities with regard to both direct and secondary service connection: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s eye, neuropathy, and/or erectile dysfunction disabilities are related to his active duty service, or are otherwise related to any in-service disease, event, or injury? If not, is it at least as likely as not (probability of fifty percent or greater) that the eye, neuropathy, and/or erectile dysfunction disabilities were caused by any other service-connected disability? If service-connected disability did not cause the eye, neuropathy, and/or erectile dysfunction disabilities, is it at least as likely as not (probability of fifty percent or greater) that eye, neuropathy, and/or erectile dysfunction disabilities were aggravated (an increase in severity) by any other service-connected disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the eye, neuropathy, and/or erectile dysfunction disabilities by the service connected disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. A detailed rationale supporting the examiner’s opinion should be provided, to include the possibility of secondary service connection due to other service-connected disability. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal. If any of the determinations remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel