Citation Nr: 18157187 Decision Date: 12/13/18 Archive Date: 12/11/18 DOCKET NO. 12-30 426 DATE: December 13, 2018 ORDER New and material evidence has been received and the Veteran’s claim for entitlement to service connection for bilateral knee disability is considered reopened. Entitlement to service connection for a heart disability, to include ischemic heart disease, aortic arteriosclerosis, and congestive heart failure, to include as due to herbicide exposure is denied. REMANDED Entitlement to service connection for an inflammatory joint disability, to include gout, to include as due to herbicide exposure is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to a skin disability, to include dermatitis and chloracne, to include as due to herbicide exposure is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another or housebound status, due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The claim for service connection for a bilateral knee disability was previously denied in an August 1987 rating decision. The Veteran did not appeal the decision or submit new and material evidence within one year, and it is therefore final. 2. Evidence added to the record since the August 1987 denial is not cumulative or redundant of the evidence of record at the time of such decision, relates to a previously unestablished fact, and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for bilateral knee disability. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a heart disability, to include ischemic heart disease, aortic arteriosclerosis, and congestive heart failure, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for myelodysplastic syndrome. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for s heart disability, to include ischemic heart disease, aortic arteriosclerosis, and congestive heart failure, to include as due to herbicide exposure are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to January 1986 in the United States Army. The Veteran had active duty service in the Republic of Vietnam. These matters were previously before the Board in March 2016. The Board denied the claim for an increased rating for a low back disability and remanded the remaining claims. The Veteran perfected an appeal of the increased rating claim to the Court of Appeals for Veterans Claims (CAVC). In September 2016 the parties filed a partial Joint Motion for Remand (JMR) that CAVC granted, vacating the Board’s decision concerning the increased rating claim and remanding for further development.   New and Material Evidence Entitlement to service connection for bilateral knee disability. In a September 1986 rating decision, the RO denied the Veteran’s original claim of service connection for a bilateral knee disability based on a negative x-ray of the knees. A claim of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in January 2011, as indicated in the Board’s previous remand the Veteran’s construing the Veteran’s claim for service connection for joint pain to include bilateral knee joints. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record at the time of the previous final decision consisted of the Veteran’s service treatment records (STRs) and the claim was denied based on the determination that the Veteran had a bilateral knee disability that preexisted and was not aggravated by active duty service. Evidence added to the record since the prior final decision includes post-service private and VA treatment records, decisions by the Board and CAVC, and lay statements by the Veteran. This evidence is new in that it was not considered at the time of the Veteran’s prior denial and this evidence is also material in that it relates to an unestablished fact, that is whether the current manifestation of the Veteran’s bilateral knee disability, diagnosed as osteoarthritis, represents an aggravation of a preexisting bilateral knee disability. Private treatment records indicate that there is a question as to the severity of the Veteran’s diagnosed bilateral knee osteoarthritis indicating that arthritis may have worsened over the course of the disability. As the central question for this issue depends on aggravation in service, the claim is reopened. Service Connection Entitlement to service connection for a heart disability, to include ischemic heart disease, aortic arteriosclerosis, and congestive heart failure, to include as due to herbicide exposure The Veteran contends that he has a heart disability, to include ischemic heart disease, aortic arteriosclerosis, and congestive heart failure that are etiologically related to active duty service, to include as due to conceded exposure to herbicides in the Republic of Vietnam. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not caused by an in-service injury or disease. The Board concludes that the Veteran does not have a current diagnosis of any heart disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 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). The June 2016 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of shortness of breath and racing heart, he did not have any heart disability current, or chronic. Further, despite treatment from 2001 to 2017, private treatment records do not contain a diagnosis of any heart disability. There are multiple mentions of chest pain and fatigue in the Veteran’s private medical treatment records but these records also indicate that the particular condition is not cardiac in nature. While the Veteran believes he has a current diagnosis of a heart disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND 1. Entitlement to service connection for an inflammatory joint disability, to include gout, to include as due to herbicide exposure The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an inflammatory joint disability, to include gout, because no VA examiner has opined whether the condition is etiologically related to conceded exposure to herbicides. The Board is aware that this condition is not subject to service connection on a presumptive basis due to herbicide exposure. However, this fact does not preclude consideration of service connection due to herbicide exposure on a direct basis. 2. Entitlement to service connection for a left shoulder disability The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left shoulder disability because no VA examiner has opined whether the Veteran’s left shoulder pain and catching symptoms are at least as likely as not due to service. The U.S. Court of Appeals for the Federal Circuit has held that pain alone may constitute a disability, even without an identifiable underlying pathology. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Thus, a medical opinion is needed to determine whether the Veteran’s left shoulder pain is etiologically related to service and reaches the level of functional impairment of earning capacity. Id. 3. Entitlement to service connection for a bilateral hip disability The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral hip disability because no VA examiner has adequately opined whether the Veteran’s hip disability is etiologically related to his noted in-service helicopter crash. The Veteran underwent a VA examination in June 2016. The VA examiner diagnosed bilateral hip osteoarthritis and noted the Veteran’s in-service helicopter crash. The examiner also noted the Veteran’s statements that he later began to experience hip soreness that developed into significant pain. The examiner opined that the condition was less likely than not due to the in-service helicopter crash. The examiner provided a rationale, however, that merely stated there was no evidence of in-service treatment for an acute or chronic hip condition. The Veteran’s STRs corroborate that he was in a helicopter crash in January 1969 while in the Republic of Vietnam. Furthermore, the Veteran’s military occupational specialty and decorations shown on his DD-214 indicate that he is a combat Veteran of the Vietnam War. The Board finds that the Veteran is a combat veteran and is, therefore, entitled to the combat presumption that the crash and an injury occurred. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Therefore, on remand the VA examiner should note that the Veteran’s reports of injuries he sustained during this helicopter crash are to be taken as credible. 4. Entitlement to a skin disability, to include dermatitis and chloracne, to include as due to herbicide exposure The Board cannot make a fully-informed decision on the issue of any skin disability because no VA examiner has opined whether any diagnosed condition, to inlcude bilateral lower extremity peripheral venus insufficiency is etiologically related to conceded in-service herbicide exposure. The Board is aware that this condition is not subject to service connection on a presumptive basis due to herbicide exposure. However, this fact does not preclude consideration of service connection due to herbicide exposure on a direct basis. 5. Entitlement to service connection for bilateral knee disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a bilateral knee disability because no VA examiner has opined whether the Veteran’s preexisting bilateral knee disability was aggravated by active duty service. 6. Entitlement to a disability rating in excess of 20 percent for service-connected low back disability is remanded. The file contains additional evidence obtained by VA, including a November 2018 VA examination report pertinent to the severity of the low back disability that have not been considered by the AOJ. The Board acknowledges that a waiver of initial AOJ consideration of evidence submitted by the Veteran for this appeal is not necessary unless requested by the appellant. See 501 of the Honoring America’s Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. 7105 to provide for an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant’s representative requests in writing that the AOJ initially review such evidence.) However, a waiver is required for new and pertinent evidence obtained by VA, and the AOJ has not issued a supplemental statement of the case (SSOC). Under 38 C.F.R. § 20.1304 (c), any pertinent new evidence received by the Board without a waiver must be referred to the AOJ. 38 C.F.R. § 20.1304 (c) (2017). Additionally, while the record contains a contemporaneous VA examination regarding the Veteran’s low back disability, conducted November 2018, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination, while quoting the Correia requirements do not contain a complete assesment of the criteria. 7. Entitlement to a TDIU due to service-connected disabilities is remanded. Finally, because a decision on the remanded issues for service connection could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. If the Veteran’s service-connected disabilities continue to not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) refer to VA’s Director of Compensation Service for extraschedular consideration. 8. Entitlement to SMC based on the need for regular A&A of another or housebound status, due to service-connected disabilities is remanded. Finally, because a decision on the remanded issues of service connection could significantly impact a decision on the issue of entitlement to SMC based on the need for regular A&A, the issues are inextricably intertwined. A remand of the claims for entitlement to SMC based on the need for regular A&A is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any inflammatory joint disability, to include gout. The examiner must opine whether it is at least as likely as not related to in-service herbicide agent exposure. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shoulder pain. The examiner must opine whether it is it at least as likely as not that there is objective evidence of left shoulder pain. If so, does the objectively confirmed left shoulder pain causes functional impairment? In answering this question, the examiner should ask the Veteran to explain the effect of pain and the nature of the impairment. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hip disability is at least as likely as not caused by the Veteran’s in-service helicopter crash. The clinician is informed that the Veteran’s reports of the injuries he sustained in the crash are credible and that, due to his combat Veteran status, his lack of in-service treatment alone is not dispositive of his claim. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin condition, to include bilateral lower extremity peripheral venous insufficiency. The examiner must opine whether it is at least as likely as not related to in-service herbicide agent exposure. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral knee disability. The examiner must opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. 6. Schedule the Veteran for an examination of the current severity of his low back disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his low back disability alone and discuss the effect of the Veteran’s low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. The case should be reviewed by the AOJ on the basis of additional evidence received since the claims were last readjudicated. 8. If after the above development has been completed the Veteran’s combined disability rating remains below the schedular criteria, refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. 9. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to TDIU and entitlement to SMC for A&A. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod