Citation Nr: 18152769 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 11-19 855 DATE: November 27, 2018 ORDER New and material evidence has not been received to reopen the claim of service connection for a colon condition, now claimed as polyps on the large intestine due to ionizing radiation, and the claim is denied. Entitlement to service connection for a bilateral hip disability is denied. REMANDED Entitlement to service connection for a tooth disability, to include as due to ionizing radiation, is remanded. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Service connection for a colon condition was denied in a July 2009 rating decision that was not appealed and became final. 2. The evidence related to a colon condition, including polyps on the large intestine due to ionizing radiation, added to the record since the July 2009 rating decision is new, but does not show that it may be related to service. 3. A bilateral hip disability was not incurred within a year of service, and is not otherwise the result of a disease or injury incurred in service. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen the claim of entitlement to service connection for colon condition, now claimed as polyps on the large intestine due to ionizing radiation. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C. § 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1976 to March 1980 and from October 1980 to July 1982. VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify was met in a letter to the Veteran. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the duty to assist in this case, the Veteran’s service treatment records (STRs), private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran and his representative have not made the regional office or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. Service Connection A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be considered “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. 1. New and material evidence to reopen the claim of service connection for a colon condition, now claimed as polyps on the large intestine due to ionizing radiation At the time of the July 2009 rating decision, the evidence of record included the STRs, which do not show any complaints, treatment, or diagnoses related to a colon condition. A DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, states that the Veteran did not have any exposure to ionizing radiation during service. The Veteran had a colonoscopy at private treatment in February 2000. It showed hemorrhoids, and was otherwise normal. The Veteran was treated for irritable bowel syndrome (IBS) at November 2000 private treatment. At October 2001 VA treatment, the Veteran reported rectal bleeding and loose bowel movements. The Veteran was diagnosed with rule out colitis, rule out IBS, rule out inflammatory bowel disease, and rule out colon cancer. A stool test was positive for E-coli. There was no subsequent diagnosis of colon cancer. The additional evidence added to the record since the July 2009 rating decision includes private January 2008 treatment records for rectal bleeding. No definite cause was found. The Veteran had private emergency room treatment for rectal bleeding in October 2009, and he was diagnosed with a lower gastrointestinal bleed. At private March 2010 emergency treatment for rectal bleeding, the diagnostic impression was a lower gastrointestinal bleed. August 2011 VA treatment records note that at a May 2006 colonoscopy that Veteran had a hyperplastic polyp removed. The Veteran had a colonoscopy at May 2013 VA treatment that showed two benign appearing polyps, diverticulosis in the entire colon, and tortuous colon. The Veteran wrote in May 2014 that in-service radiation exposure caused his polyps. While the evidence is new in that it was not previously of record, it is not material. The newly submitted evidence does not establish that the Veteran was exposed to a measurable dosage of radiation during service or relate to whether his colon condition, including his polyps and rectal and lower gastrointestinal bleeding, is otherwise related to service. The claim is therefore not reopened. 2. Entitlement to service connection for a bilateral hip disability The STRs do not show any complaints, treatment, or diagnoses related to a bilateral hip disability. The Veteran wrote in September 2014 that he had pain in his hips that began during service while serving on the U.S.S. Holland in 1980 to 1981. The STRs show that in November 1981, while serving on the U.S.S. Holland, the Veteran fell 20 feet to the deck and was diagnosed with a fractured right foot and compression of the lumbar spine. The Veteran is competent to report that he has had hip pain since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, the Board does not find him to be a credible historian with respect to the hips. As discussed above, the STRs do not show any complaints related to the hip, including when he fell on the U.S.S. Holland. Furthermore, the Veteran has not been consistent when reporting that incident. The STRs state that he fell 20 feet, but the Veteran wrote in March 2004 that the military altered his records to state that he fell 20 feet when he actually fell over 100 feet over ten decks. In December 2007 the Veteran wrote that he fell 150 feet, and a February 2011 VA PTSD examination report states that the Veteran had reported falling as much as 200 feet. There is no indication from the record that the STRs were altered to reduce how far the Veteran fell. In addition, the post-service treatment records do not show any complaints, treatment, or diagnoses related to the hips despite treatment for other orthopedic disabilities. Alternatively, even if the Veteran’s report of hip pain since service is credible, service connection is not warranted. There has not been a diagnosed hip disability. Furthermore, the record does not show that hip pain has caused functional limitation. The term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (2018). In summary, the Board concludes that the Veteran has never had a hip disability or functional impairment related to the hips. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Therefore, the claim for service connection must be denied. Because the evidence preponderates against the claim of service connection for a bilateral hip disability, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND VA treatment records to December 2014 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from December 2014 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for a tooth disability, to include as due to ionizing radiation The STRs do not show any complaints, treatment, or diagnoses related to a tooth disability. In addition, the STRs do not contain any dental treatment records for the Veteran’s active service. It is not clear from the record whether the Veteran did not have any dental treatment during his approximately five years of active service, or whether there are dental records separate from the STRs that have not been obtained. The duty to assist requires that VA obtain any outstanding service dental treatment records before the claim can be decided on the merits. 2. Entitlement to an initial evaluation in excess of 30 percent for PTSD is remanded. An August 2017 Board decision increased the Veteran’s rating for PTSD to 30 percent prior to November 4, 2009, and denied a rating greater than 30 percent for the entire claims period. The Veteran subsequently appealed the portion of the decision denying a rating greater than 30 percent to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran’s attorney and the VA Office of the General Counsel filed a joint motion to vacate this portion of the Board’s decision and remand the Veteran’s claim for readjudication. In a May 2018 Order, the Court granted the motion, vacated the Board’s August 2017 decision as it related to this issue, and remanded this case to the Board for readjudication. The May 2018 joint motion discussed the inadequacy of discussion in a 2014 VA examination report regarding which symptoms were associated to the service-connected PTSD and which could be differentiated as being from a nonservice-connected disability, and how the symptoms related to PTSD affected occupational and social functioning. Therefore, the Board finds that the Veteran should be scheduled for a new VA examination before the claim can be decided on the merits. The matter is REMANDED for the following action: 1. Obtain VA treatment records from December 2014 to the present. 2. Obtain the Veteran’s service dental treatment records. If they are not located, take appropriate efforts to reconstruct then, including asking the Veteran to submit copies of any service dental treatment records in his possession. All actions taken in this regard should be documented. If the complete service dental treatment records cannot be obtained, a formal finding of unavailability must be made. 3. Schedule the Veteran for an appropriate VA examination to ascertain the severity of his PTSD. The entire claims file must be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted and the results reported. The VA examiner must provide a list of symptoms and clearly address which symptoms can be differentiated as being from diagnoses other than PTSD, and must include a rationale as to why. In addition, the examiner must address the extent of functional and industrial impairment of the symptoms that cannot be differentiated from PTSD, and furnish a full description of the effects of the service-connected disability upon the Veteran’s ordinary activity, including his employment. All opinions must be supported by a complete rationale. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel