Citation Nr: 18154881 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-48 079 DATE: November 30, 2018 ORDER Petition to reopen the claim of service connection for a right great toe disorder is granted. Petition to reopen the claim of service connection for a lumbar spine disorder is granted. Petition to reopen the claim of service connection for residuals of a head injury is denied. Service connection for neuropathy of the bilateral upper extremities is denied. Service connection for hematuria is denied. Service connection for hypertension is denied. Service connection for erectile dysfunction is denied. Service connection for a right shoulder strain is denied. Service connection for bilateral restless leg syndrome is denied. REMANDED Service connection for a right great toe disorder is remanded. Service connection for a lumbar spine disorder is remanded. Service connection for neuropathy of the bilateral lower extremities is remanded. Service connection for an acquired psychiatric disorder to include a sleep disorder is remanded. Service connection for gastroesophageal reflux disease (GERD) is remanded. Service connection for irritable bowel syndrome (IBS) is remanded. REFERRED ISSUE In September 2017, the Veteran submitted medical information discussing an inguinal hernia, indicting this was part of his appeal before the Board. He has never, however, filed a claim for such a condition. Effective on and after March 24, 2015, VA updated the regulations concerning the filing of claims. 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). In part, the Department replaced the informal/formal claims process with a standardized and more formal process. See 79 Fed. Reg. at 57,663-64; see also 38 C.F.R. § 3.155 (2015). As a result of the rulemaking, a complete claim on an application form is required for all types of claims. 38 C.F.R. § 3.155(d). An “intent to file a claim” may also be filed pending completion of the prescribed form for “complete claims,” either orally or on a prescribed VA Form for that purpose. 38 C.F.R. § 3.155(b). A claimant who wants to file for benefits under laws administered by VA but does not communicate that desire orally or on a prescribed VA Form (on paper or electronically) is not considered to have filed a claim. 38 C.F.R. § 3.150(a). Instead, that person is considered to have requested an application form. This is REFERRED to the Agency of Original Jurisdiction for appropriate action. FINDINGS OF FACT 1. In November 2010, the Veteran filed petitions to reopen claims for service connection for a right great toe disorder, residuals of a head injury, and lumbar spine disorder that were then denied in a January 2013 rating decision. The Veteran did not file new and material evidence or a notice of disagreement within one year of the rating decision and it became final. 2. Since the January 2013 rating decision, new and material evidence has been associated with the claims file that suggests the Veteran has a chronic right great toe disorder that could be related to his in-service right toe pain. 3. Since the January 2013 rating decision, new and material evidence has been associated with the claims file that suggests the Veteran’s current lumbar spine is related to an in-service injury or event. 4. Since the January 2013 rating decision, new and material evidence has not been associated with the claims file that suggests the Veteran has residuals from a head injury in service. 5. The Veteran’s bilateral upper extremity neuropathy manifested many years after separation from service and is secondary to his nonservice-connected cervical spine disorder. 6. The Veteran’s hematuria is not a disability for which service connection may be granted. 7. The Veteran’s hypertension did not manifest in service or to a compensable degree within one year after service, nor was there a continuity of symptomatology from service to diagnosis, and it is otherwise unrelated to service. 8. The Veteran’s erectile dysfunction manifested many years after separation from service and is caused by the medication he takes for his nonservice-connected hypertension. 9. The Veteran’s right shoulder strain manifested many years after separation from service and is otherwise unrelated to service. 10. The Veteran’s restless legs syndrome manifested many years after separation from service and is otherwise unrelated to service. CONCLUSIONS OF LAW 1. The January 2013 rating decision denying service connection for a right great toe disorder, residuals of a head injury, and lumbar spine disorder is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100 (2017). 2. The criteria to reopen the claim of service connection for a right great toe disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to reopen the claim of service connection for a lumbar spine disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria to reopen the claim of service connection for residuals of a head injury, to include headaches, have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1131, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 6. The criteria for service connection for hematuria have not been met. 38 U.S.C. §§ 1131, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 7. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 8. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1131, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 9. The criteria for service connection for a right shoulder strain have not been met. 38 U.S.C. §§ 1131, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 10. The criteria for service connection for bilateral restless leg syndrome have not been met. 38 U.S.C. §§ 1131, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Petition to reopen the claim of service connection for a right great toe disorder is granted. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100, 20.1103, 20.1104. If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. See Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. See id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; 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, 117-120 (2010). In June 2002, the RO denied service connection for a right great toe disorder, finding there was no evidence of a chronic condition in service and no relationship between the post-service condition and the in-service treatment. In June 2011 and January 2013, the RO denied a November 2010 petition to reopen the claim, in part because his medical records “did not provide sufficient evidence of a current chronic condition.” The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At that time, the evidence included the Veteran’s statements, service treatment records, VA medical records through January 2013, private treatment records, and a June 2002 VA examination that diagnosed the Veteran with a hallux valgus deformity and plantar calcaneal spurs. The Veteran filed a petition to reopen his claim in March 2014. Since then, new medical records have been associated with the claims file that document diagnoses of moderately severe osteoarthritis involving the first MTP joint, mild osteoarthritis in the IP joint of the great toe, hallux limitus of the right foot, plantar fasciitis of the right foot, and onychomycosis. These records are “new” and “material” because they, in part, address an unestablished fact necessary to substantiate the claim, i.e. a chronic right great toe disorder. As new and material evidence has been received since the final January 2013 rating decision, the Veteran’s petition to reopen the claim of service connection for a right great toe disorder is granted to this extent only. 2. Petition to reopen the claim of service connection for a lumbar spine disorder is granted. In June 2002, the RO denied service connection for a back condition, finding there was no evidence of a chronic condition in service and no relationship between the post-service condition and the in-service treatment. In June 2011 and January 2013, the RO denied a November 2010 petition to reopen the claim because the evidence did not demonstrate a link between service and the lumbar spine disorder. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At that time, the evidence included the Veteran’s statements, service treatment records, VA medical records through January 2013, private treatment records, and a VA spine examination with a negative nexus opinion. The Veteran filed a petition to reopen his claim in March 2014. Since then, a positive nexus opinion was rendered in a November 2014 VA shoulder examination. The VA examiner relied on the Veteran’s reports that he was injured in a serious parachuting accident and concluded that his shoulder was traumatized while in the military, likely leading to a right shoulder strain and spine degeneration. As this constitutes new and material evidence, the Veteran’s petition to reopen the claim of service connection for a lumbar spine disorder is granted, to this extent only. 3. Petition to reopen the claim of service connection for residuals of a head injury is denied. In June 2002, the RO denied service connection for residuals of a head injury, to include headaches, finding there was no evidence of such an injury or of headaches in service. In June 2011 and January 2013, the RO denied a November 2010 petition to reopen the claim because the evidence did not show an in-service head injury and did not demonstrate a link between service and the current headache disorder. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At that time, the evidence included the Veteran’s statements, service treatment records, VA medical records through January 2013, private treatment records, and VA examination reports. The Veteran filed a petition to reopen his claim in March 2014. Since then, new SSA and VA medical records have been associated with the claims file. While these records are “new,” they are not “material” because they do not address an unestablished fact necessary to substantiate the claim. Specifically, the new medical records do not suggest that the Veteran’s chronic headache disorder is related to service or that he incurred a head injury in service. As new and material evidence has not been received since the final January 2013 rating decision, the Veteran’s petition to reopen the claim of service connection for residuals of a head injury is denied. 4. Service connection for neuropathy of the bilateral upper extremities is denied. The Veteran contends that he is entitled to service connection for neuropathy of the bilateral upper extremities. The Board finds, however, that the evidence does not show it began in service or is otherwise related to service; instead, the evidence shows that his bilateral upper extremity neuropathy is related to his nonservice-connected cervical spine disorder. The Veteran’s service treatment records are associated with the claims file and appear to be complete. The service records do not show treatment for relevant symptoms or diagnoses, the September 1980 and November 1981 separation examinations were normal, and the Veteran denied shoulder pain and neuritis on his separation reports of medical history. An Attending Physician’s Statement form, dated August 2006, shows treatment for central C5-6 canal stenosis with bilateral neuropathy of the upper extremities. The Veteran’s physician also indicated that the symptoms first appeared, or an accident happened, in 2006 and the Veteran never had a same or similar condition previously. On a claim form associated with the attending physician’s statement, the Veteran indicated that his symptoms appeared in June 2002. Other private records show treatment for C5-6 degeneration with impingement of the neural foramina that was causing right arm pain in approximately December 2005. In October 2005, the Veteran was treated at VA for right shoulder and arm pain with tingling. In short, the medical records show that his upper extremity neuropathy manifested many years after separation from service and is related to his nonservice-connected cervical spine disorder. The Board thus finds that the Veteran’s service treatment records and post-service medical records show that his bilateral upper extremity neuropathy manifested many years after service and do not otherwise relate it to service. Instead, the records show it is related to a nonservice-connected cervical spine disorder. Accordingly, service connection is not warranted and the claim is denied. Because there is no evidence of symptoms in service or competent evidence that relates it to service or service-connected disabilities, an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Service connection for hematuria is denied. The Veteran seeks service connection for hematuria. The Board finds, however, that hematuria is an abnormal laboratory finding, not a disability for which service connection may be granted, and there is no evidence showing an underlying disability that is related to service. Service treatment records, which appear to be complete, do not demonstrate hematuria or other urinary disorder. The September 1980 separation examination shows a diagnosis of an inguinal hernia, but the September 1980 and November 1981 urinalysis results were negative. Post-service medical records show one complaint of hematuria in September 2006 following exercise that was more strenuous than usual. Subsequent records note a history of hematuria but do not document recurrence, and the Veteran explicitly denied recurrence in July 2007. Importantly, there were no complaints of hematuria during the period on appeal and an underlying cause was not identified. The Board finds that the evidence shows only that the Veteran experienced a single incident of hematuria, outside the period on appeal. Hematuria is defined as blood in the urine. See Dorland’s Illustrated Medical Dictionary 845 (31st ed. 2007). A symptom (to include abnormal laboratory study or pain), without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Because the weight of the evidence demonstrates that the Veteran’s hematuria is not a disability for which service connection may be granted, the claim is denied. 6. Service connection for hypertension is denied. The Veteran contends that he is entitled to service connection for his hypertension. The Board finds, however, that the Veteran is not entitled to service connection because his hypertension manifested many years after separation from service and is otherwise not related to service. Because hypertension is listed as a “chronic disease” in 38 C.F.R. § 3.309, a presumptive service connection analysis is warranted. See 38 C.F.R. 3.303(b). The Veteran’s service treatment records are associated with the claims file and appear to be complete. The service records do not show symptoms or diagnoses of high blood pressure, his blood pressure was recorded as 124/76 and 118/72 on the September 1980 and November 1981 separation examination reports respectively, and the Veteran denied high blood pressure on both reports of medical history. His post-service medical records are associated with the claims file and show that he was diagnosed with hypertension in July 2001. At that visit, he reported being “told that his pressures were high in the past” but he did not report that he was previously diagnosed with or treated for hypertension. After review of the evidence, the Board finds that he is not entitled to presumptive service connection afforded to chronic diseases under 38 C.F.R. § 3.309 because there is no evidence of the disease in service, shortly after service, or a continuity of symptomatology from service to diagnosis. Instead, the evidence shows the Veteran’s hypertension was diagnosed in 2001, approximately 20 years after separation from service, and neither the lay nor medical evidence demonstrates a continuity of symptomatology. The Board additionally considered whether service connection is warranted on a direct basis but finds that it is not. In making this determination, the Board relied on the normal blood pressure levels in service, the normal blood pressure reading at separation, and the extensive period between service and diagnosis. The Board thus finds that the preponderance of the evidence is against service connection and the claim is denied. Because there is no evidence of symptoms in service or competent evidence that relates the current disability to service or service-connected disabilities, an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 7. Service connection for erectile dysfunction is denied. The Veteran seeks service connection for his erectile dysfunction. The Board finds, however, that the evidence does not show it began in service; instead, the evidence shows that it is caused by medication he takes for his nonservice-connected hypertension disorder. The Veteran’s service treatment records are associated with the claims file and appear to be complete. The service records do not show treatment for relevant symptoms or diagnoses, the September 1980 and November 1981 separation examinations were normal, and erectile dysfunction was not noted on his separation reports of medical history. In December 2001, the Veteran presented to his private physician because he was experiencing erectile dysfunction. His physician noted it was caused by his hypertension medication and prescribed him Viagra. During a March 2002 VA primary care visit, the Veteran reported that he stopped his blood pressure medication because it caused erectile dysfunction. Subsequent medical records do not show that his erectile dysfunction is otherwise related to service or caused by service-connected disabilities. In short, the Veteran’s records show that his erectile dysfunction manifested many years after separation from service and is caused by the medication he takes for his nonservice-connected hypertension disorder. Importantly, the Veteran has not submitted lay or medical evidence that shows otherwise. Accordingly, service connection is not warranted and the claim is denied. Because there is no evidence of symptoms in service or competent evidence that relates the current disability to service or service-connected disabilities, an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Service connection for a right shoulder strain is denied. The Veteran contends that he is entitled to service connection for a right shoulder strain related to an in-service parachute injury. The Board finds, however, that the Veteran is not entitled to service connection because his disorder manifested many years after separation from service and is otherwise not related to service. The Veteran’s service treatment records are associated with the claims file and appear to be complete. His DD 214 shows that he was awarded a basic parachutist badge and underwent a three-week Airborne Course in 1974. Despite seeking treatment for numerous complaints and disorders, such as right toe pain, back pain, and a chronic cough, his treatment records do not show complaints of or diagnoses regarding the right shoulder. He underwent a periodic examination in March 1977 and the upper extremities portion was normal. Importantly, the September 1980 and November 1981 separation examinations were normal, and the Veteran denied shoulder pain on both reports of medical history. Post-service medical records show that he first complained of right shoulder pain in March 2004. He stated that it began one month ago and he denied suffering injury to his shoulder. X-ray testing showed possible widening of the right acromioclavicular joint. Subsequent records show continued treatment for shoulder pain. He was afforded a VA examination in November 2014 and was diagnosed with a right shoulder strain that the examiner related to the parachuting injury in service The Board finds, however, that the Veteran’s statements regarding an in-service parachute injury that caused injury to his shoulder are not credible and did not rely on the VA examiner’s positive nexus opinion as it was based on those statements. The service treatment records are negative for a parachuting injury, despite documenting treatment for numerous medical conditions and reports of trauma. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Notably, the Veteran complained of back pain from an event that occurred only weeks prior in February 1981. It does not follow, therefore, that the Veteran sought treatment for back pain after an injury in February 1981 but did not seek similar treatment after the alleged parachuting accident, nor ever report shoulder injury/pain when getting treatment for other orthopedic complaints. The Board further finds that the Veteran’s post-service medical records weigh against the credibility of his statements and his claim generally. The Veteran sought treatment for right shoulder pain in March 2004 clearly stating it began one month prior and did not stem from an injury. The Board finds that these statements made seeking treatment are more probative regarding the etiology of his conditions rather than his statements made seeking compensation. Statements made in conjunction with treatment are generally considered to be more credible and trustworthy than those made in situations where secondary gain may be a factor. This is the basis for the hearsay exception in the Federal Rules of Evidence at Rule 803(4). While these Rules are not strictly applicable to VA proceedings, they can help inform the analysis of the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). It is reasonable to assume that if the Veteran had, in fact, injured his shoulder in the past, he would not have denied such in 2004, and it is also reasonable to assume that if he had been experiencing shoulder pain for over two decades, he would have reported that rather than onset one month earlier. Finally, despite filing claims for service connection for his head, neck, back, and toe in 2001 and 2010, the Veteran did not file a claim for his right shoulder until 2014. While failure to file a claim is not necessarily indicative of the absence of symptomatology, where, as here, the Veteran acts on other claims, it becomes reasonable to expect that he is filing for all symptoms that he believes are related to service. The Board therefore finds that the Veteran’s inaction regarding his claim for the right shoulder, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative that the Veteran was not experiencing shoulder pain that he believed was related to service at that time. In sum, the Veteran’s service records, post-service medical records, statements made seeking treatment, and VA claims history show that the right shoulder disorder manifested many years after service and is unrelated to service; thus, service connection is not warranted and the claim is denied. 9. Service connection for bilateral restless leg syndrome is denied. The Veteran contends that he is entitled to service connection for bilateral restless leg syndrome. The Board finds, however, that the Veteran is not entitled to service connection because the evidence does not show his restless legs syndrome began in or is otherwise related to service. The Veteran’s service treatment records are associated with the claims file and appear to be complete. The service records do not show treatment for relevant symptoms or diagnoses, the separation examinations were normal, and, while he reported occasional leg cramps on his September 1980 separation report of medical history, he denied leg cramps on his November 1981 separation report of medical history and frequent trouble sleeping on both reports. The Veteran’s post-service VA medical records date to 2001, but do not document restless legs syndrome until December 2007, when he was diagnosed. After a sleep consultation in September 2008, a change in blood pressure medication was recommended as “the calcium channel blockers can aggravate restless legs syndrome.” In sum, the Veteran’s service treatment records and post-service medical records show that his bilateral restless leg syndrome manifested many years after service and is not related to service. Importantly, the Veteran has not submitted lay or medical evidence that shows otherwise. The Board thus finds that the preponderance of the evidence is against service connection and the claim is denied. Because there is no evidence of symptoms in service or competent evidence that relates it to service or service-connected disabilities, an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). REASONS FOR REMAND 1. Service connection for a right great toe disorder is remanded. Service treatment records show treatment for chronic right great toe pain and the Veteran noted toe joint pain on his separation report of medical history. Current medical records show diagnoses of moderately severe osteoarthritis involving the first MTP joint, mild osteoarthritis in the IP joint of the great toe, hallux limitus of the right foot, plantar fasciitis of the right foot, and onychomycosis. The Board thus finds that the claim for service connection for a right great toe disorder must be remanded for a VA examination and medical opinion to assist in assessing whether the current disorders are related to the in-service complaints and diagnoses. 2. The claims for service connection the lumbar spine disorder, bilateral sciatica, and an acquired psychiatric disorder are remanded. The November 2014 shoulder VA examination constitutes new and material evidence relating the Veteran’s lumbar spine disorder to active service. Since the RO did not consider the claim on the merits, however, it must be remanded for that purpose. See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (“When the Board reopens a claim after the AOJ has denied reopening that same claim, the matter generally must be returned to the AOJ for consideration of the merits.”). The medical records relate the sciatica and depression disorders to his lumbar spine disorder; thus, these claims must also be remanded as inextricably-intertwined.   3. The claims for service connection for GERD and IBS are remanded. Service treatment records show treatment for chronic gastritis toward the end of service and the Veteran noted indigestion on his separation report of medical history. His current medical records show treatment for GERD and IBS. The Board finds that the duty to assist has thus been triggered, and a remand is necessary for a VA examination and medical opinion. The matter is REMANDED for the following action: 1. Obtain the Veteran’s records from VAMC Fayetteville from March 2016 to the present. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of his right great toe conditions. After review of the claims file and examination, the examiner must answer the following: Is it at least as likely as not that one or more of the Veteran’s current right great toe and foot disorders began in service or are related to the in-service complaints of right great toe pain? 3. Schedule the Veteran for a VA examination to assess the nature and etiology of his gastrointestinal conditions. After review of the claims file and examination, the examiner must answer the following: Is it at least as likely as not that the Veteran’s current GERD and/or IBS disorders began in service or are related to the in-service treatment for gastrointestinal complaints? 4. Readjudicate the claim of service connection for a lumbar spine disorder on the merits, as the Board has reopened the claim, and claims of service connection for sciatica and an acquired psychiatric disorder as necessary, in a Supplemental Statement of the Case. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel