Citation Nr: 18155774 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-09 283 DATE: December 6, 2018 ORDER The application to reopen the claim for service connection for allergic rhinitis is granted. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for coronary arteriosclerosis (CAD), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hypercholesterolemia is remanded. Entitlement to service connection gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for hypoandrogenism with erectile dysfunction (ED), to include as secondary to service-connected PTSD, is remanded. Entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis is remanded. FINDINGS OF FACT 1. In a November 1998 rating decision, the AOJ denied service connection for allergic rhinitis; although notified of the denial in a letter dated December 1998, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. New evidence associated with the claims file since the November 1998 denial relates to an unestablished fact necessary to substantiate the claim for service connection for allergic rhinitis and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 1998 rating decision in which the RO denied service connection for allergic rhinitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. As additional evidence received since the November1998 denial is new and material, the criteria for reopening the claim for service connection for allergic rhinitis are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to July 1998. He is the recipient of a Combat Action Ribbon and served as a Navy Seal. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2015 rating decision in which the Regional Office (RO), inter alia, denied service connection for hypoandrogenism and erectile dysfunction, hypocholesterolemia, CAD, GERD, denied the application to reopen service connection for allergic rhinitis, and denied a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis. In December 2015, the Veteran filed a notice of disagreement (NOD). In January 2017, the RO issued a statement of the case (SOC). A substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) with respect to this issue was received in February 2017. As regards characterization of the appeal, the Board notes that, regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence had been received to reopen a previously denied claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim for allergic rhinitis has been received—and given the Board’s favorable decision on the request to reopen service connection for allergic rhinitis—the Board has characterized the appeal as set forth on the title page. The Board notes that after the AOJ’s last adjudication of the claims and after certification of the appeal to the Board, VA treatment records and VA examination were obtained. However, such evidence is not pertinent to the claims. Further, as discussed below, given the Board has reopened the claim the for service connection for allergic rhinitis, a waiver is not necessary as to this claim. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, § 501, 126 Stat. 1165, 1190 (Camp Lejeune Act); 38 C.F.R. § 20.1304 (2016). As to the remaining claims, as they are being remanded, the RO will have an opportunity to review the evidence on remand. See Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e), which provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, it is subject to initial review by the Board unless the Veteran explicitly requests RO consideration). Application to Reopen Service Connection for Allergic Rhinitis The Veteran’s claim for service connection for allergic was previously considered and denied in a November 1998 rating decision, because the Veteran did not have a diagnosis of a respiratory disability at that time. Although notified of the November 1998 denial in a respective letter dated in December 1998, the Veteran did not initiate an appeal with respect to the claim. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial of the claim, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156 (b), (c). Therefore, the November 1998 denial of the respective claim is final as to the respective evidence then of record and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156 (a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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 determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Id. The evidence of record at the time of the November 1998 rating decision that denied service connection for allergic rhinitis consisted of the Veteran’s service treatment records. New evidence pertinent to this claim includes VA treatment records reflecting diagnosis of allergic rhinitis and the Veteran’s contention that his symptoms have continued since service. Given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the November 1998 denial is new and material within the meaning of 38 C.F.R. § 3.156 (a), warranting reopening of service connection claim for allergic rhinitis. See Justus, 3 Vet. App. at 513 Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for allergic rhinitis are met. REASONS FOR REMAND The Board’s review of the claims file reveals that further Agency of Jurisdiction (AOJ) action of the remaining claims, prior to appellate consideration, is warranted. The Veteran asserts that his ED with hypoandrogenism, GERD, CAD, and allergic rhinitis was caused by his service, to include documented exposure to hazardous materials/chemicals of lead, asbestos, ionizing radiation as a Navy seal and related stress and consequences of diving. With regard to ED and hypoandrogenism and CAD, the Veteran also asserts that they are secondary to his service-connected PTSD. With regard to the claim for CAD, in addition to the above, the Veteran asserts that his disability is a result of high cholesterol diagnosed during service. The Board notes that the October 2015 VA examiner concluded that his CAD was not related to his service-connected PTSD because while PTSD can contribute to chronic medical illnesses, current condition is more likely due to age, genetics, and lifestyle. Here, in addition to not providing an adequate rationale as to secondary service connection, the examiner also did not address the Veteran’s contentions as to direct service connection. Thus, on remand, a new opinion that addresses whether the Veteran’s CAD was more likely than not due to his service based on a theory of direct service connection, as well as an addendum opinion as to secondary service connection, is necessary. As to secondary service connection, Moreover, VA’s own statements in connection with its rulemaking authority support such an association. VA has found that a presumption of service connection is warranted for hypertensive vascular disease for prisoners of war (POWs). This presumption is based on several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction; thus, since POWs have a relatively high rate of PTSD incurrence, they would presumably be at greater risk of cardiovascular disease to include hypertension. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). With regard to the claimed GERD, the Veteran contends that he experienced extreme pain in his stomach in 1984, at which time he went to medical and did a barium swallow because the doctor was “amazed at the volcano like image.” He was told it was due to stress and was told to do stress relieving technique. The Veteran reported that it may not have been documented because he was being screened and vetted for SEAL Team Six. He reported that he constantly used the stress relieving technique during his service. The May 2014 VA examiner opined that the Veteran’s GERD are not related to his Gulf-War service because GERD is not a multisystem illness, nor is it an unknown diagnosis. GERD has a clear diagnosis with a known etiology. The examiner noted the Veteran stated that he had a barium swallow performed while on active duty which confirmed the diagnosis of GERD, however, the examiner was unable to find the barium swallow in his STR and therefore explained any comment on “OSC” would be mere speculation. This opinion, however, did not address whether GERD was caused by his exposure to hazardous materials during his service in Southwest Asia, as well as to lead, asbestos, and ionizing radiation. In addition, the VA examiner relied largely on the lack of documented diagnosis in service without specifically addressing the Veteran’s assertions that it may not have been documented because it was during a screening for the Navy Seal team, and that he self-treated by using stress relieving techniques. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records to provide negative opinion). Also, the examiner also did not address the Veteran’s additional contentions as to direct service connection, discussed above. With regard to the claimed erectile dysfunction and hypogonadism, the May 2014 VA examiner hypogonadism and ED are not multisystem illnesses, nor undiagnosed illnesses. Hypogonadism occurs to a percentage of middle aged and older males. The abundance of medical literature does not support the connection of hypogonadism to the GW illness. Hypogonadism is less likely as not to represent a GWI. The veteran’s ED is less likely as not a GWI. The abundance of medical literature does not support a link between ED and GWI. Here, the Board finds that the examiner did not provide an adequate rationale. Further, the examiner also did not address whether the Veteran’s service-connected PTSD caused and or aggravated these conditions, and did not address his contentions as to direct service connection. With regard to the reopened claimed for service connection for allergic rhinitis, the Board notes that the Veteran’s service treatment records (STRs) contain treatment for allergic rhinitis. Given the current diagnosis and the Veteran’s assertion that he has had continued symptoms since service, the low threshold to trigger VA’s duty to provide an examination for this disability is met. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, a VA examination is warranted to obtain a medication opinion as to the current nature and etiology of this disability. With regard to the Veteran’s claim for service connection for hypercholesterolemia, although high cholesterol is not considered a disability for VA compensation purposes, given that the Veteran asserts that his CAD was caused by his in-service elevated cholesterol and the possibility that this condition may be related to his CAD, the Board finds that deferral and remand of this issue is appropriate pending the adjudication of the CAD issue. With regard to his increased rating claim for bilateral feet disability, in the February 2017 statement, the Veteran asserts that his feet symptoms are not relieved or improved with inserts and get worse every day and that his shoes are worn reflecting marked pronation with extreme tenderness of plantar surfaces of the feet. He also indicated that it is very painful to walk, balance, or stand. Considering the Veteran’s assertions in conjunction with the time period since the 2015 examination, the Board finds that the evidence suggests the possible worsening of his disability, warranting re-examination. See Snuffer v. Gober, 10 Vet. App. 400 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). In light of the above, the Board finds that the evidence of record is insufficient to resolve the claims for service connection, and that a remand of the claim to obtain further medical opinions by an appropriate physician is needed prior to adjudicating the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or obtain an opinion in connection with a service connection claim, it must provide or obtain one adequate one for the purpose intended). See also 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, on remand, the AOJ should undertake appropriate action to obtain further medical opinions—based on full consideration of the Veteran’s documented history and assertions, and supported by complete, clearly-stated rationale. Id. To this end, the AOJ should arrange to obtain addendum opinions from the examiners who provided the May 2014 and October 2015 opinions, or, if necessary, from another appropriate physician, based on claims file review (if possible). The AOJ should only arrange for further examination of the Veteran if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The AOJ should schedule the Veteran for VA examinations with regard to his claim for allergic rhinitis and increased rating claim for bilateral feet disability While these matters are on remand, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, should be obtained. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Fayetteville VA Medical Center (VAMC), and that records from these facilities dated through July 2018 are associated with the file; however, more recent records may exist. Hence, the AOJ should obtain all records of pertinent treatment since July 2018. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly, regarding private (non-VA) treatment. The matters are REMANDED for the following action: 1. Obtain from the Fayetteville VAMC and associated facilities any outstanding records of VA treatment of the Veteran since June 2018. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the examiner who provided the October 2015 opinion with regard to his CAD. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an opinion from another appropriate physician based on claims file review (if possible). Only arrange for further examination of the Veteran if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the electronic claims file, to include a copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to the diagnosed CAD disability, the physician should render an opinion, based on sound medical principles, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) had its onset during service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include the documented elevated high cholesterol, the Veteran’s contention that the documented in-service exposure to high levels of lead, asbestos, and ionizing radiation, as well as the stress as a Navy Seal and diving caused his disability. (b) was caused OR is or has been aggravated by service-connected PTSD. If aggravation is found, the examiner should attempt to quantify the extent of aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions as to nature, onset and continuity of symptoms, as well as the February 2017 VA memo discussing the consequences of diving. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. With regard to the relationship between CAD and PTSD, the physician should consider the information in Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005) and Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the examiner who provided the May 2014 opinion with regard to GERD. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an opinion from another appropriate physician based on claims file review (if possible). Only arrange for further examination of the Veteran if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the electronic claims file to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to the diagnosed GERD, the physician should render an opinion, based on sound medical principles, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include the documented gastritis and exposure to hazardous chemical materials including lead, asbestos, ionizing radiation, and hazardous materials/chemicals during the Gulf War, the Veteran’s contention that the diagnosis and treatment for GERD was not documented because it was during the screening process of becoming a Navy Seal, as well as his contention that the stress as a Navy Seal and diving caused his disability. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions as to nature, onset and continuity of symptoms, as well as the February 2017 VA memo discussing the consequences of diving. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the examiner who provided the May 2014 opinion with regard to ED and hypoandrogenism. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an opinion from another appropriate physician based on claims file review (if possible). Only arrange for further examination of the Veteran if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to the diagnosed ED and hypoandrogenism, the physician should render an opinion, based on sound medical principles, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) had its onset during service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include the documented exposure to hazardous chemical materials including lead, asbestos, ionizing radiation, and hazardous materials/chemicals during the Gulf War, as well as his contention that the stress as a Navy Seal and diving caused his disability; or (b) was caused OR is or has been aggravated (worsened beyond natural progression) by service-connected PTSD. If aggravation is found, the examiner should attempt to quantify the extent of aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions as to nature, onset and continuity of symptoms, as well as the February 2017 VA memo discussing the consequences of diving. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 8. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination with regard to his claim for allergic rhinitis by an appropriate physician. The entire claims file, to include a complete copy of the REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and review of all pertinent lay and medical evidence, the examiner should clearly identify all respiratory disorder(s), to include allergic rhinitis, currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). With regard to the diagnosed disorder, to include allergic rhinitis, the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include the in-service diagnosis of allergic rhinitis, the documented exposure to hazardous chemical materials including lead, asbestos, ionizing radiation, and chemicals during the Gulf War, as well as his contention that the stress as a Navy Seal and diving caused his disability. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions as to nature, onset and continuity of symptoms, as well as the February 2017 VA memo discussing the consequences of diving. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 9. The Veteran should be afforded a VA podiatry examination to determine the current severity of his service-connected bilateral feet disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel