Citation Nr: 18158305 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-44 892 DATE: December 14, 2018 ORDER New and material evidence has been received, and the claim for service connection for a low back condition is reopened. New and material evidence has been received, and the claim for service connection for hypertension, claimed as high blood pressure, is reopened. New and material evidence has been received, and the claim for service connection for ischemic heart disease, claimed as a heart blockage, is reopened. Service connection for a low back condition is granted. Service connection for a sprained right foot is denied. Service connection for a right arm rash is denied. Service connection for tinea cruris is denied. Service connection for urethritis is denied. Service connection for a left eye cyst is denied. Service connection for pes planus is denied. REMANDED Service connection for ischemic heart disease, claimed as a heart blockage, is remanded. Service connection for hypertension, claimed as high blood pressure, is remanded. Service connection for a respiratory disability, to include emphysema, bronchitis, asthma, and coronary obstructive pulmonary disease (COPD), is remanded. Service connection for testicle pain is remanded. FINDINGS OF FACT 1. The regional office (RO) previously denied the Veteran’s service-connection claims for a low back condition, hypertension, and ischemic heart disease in a September 2010 rating decision. 2. The evidence received since the September 2010 rating decision regarding service connection for a low back condition is 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 raises a reasonable possibility of substantiating the claim for service connection on the merits. 3. The evidence received since the September 2010 rating decision regarding service connection for hypertension is 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 raises a reasonable possibility of substantiating the claim for service connection on the merits. 4. The evidence received since the September 2010 rating decision regarding service connection for ischemic heart disease is 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 raises a reasonable possibility of substantiating the claim for service connection on the merits. 5. The evidence of record favors a finding that a low back condition began during active service. 6. The Veteran does not have a current diagnosis of a sprained right foot and he does not have right foot pain due to service resulting in functional impairment. 7. The Veteran does not have a current diagnosis of a right arm rash and he does not have right arm rash pain due to service resulting in functional impairment. 8. The Veteran does not have a current diagnosis of urethritis and he does not have any urinary pain due to service resulting in functional impairment. 9. The Veteran does not have a current diagnosis of tinea cruris and he does not have related pain due to service resulting in functional impairment. 10. The Veteran does not have a current diagnosis of a left eye cyst and he does not have eye pain due to service resulting in functional impairment. 11. Pes planus was noted on service entrance examination and did not undergo an increase in severity in service. CONCLUSIONS OF LAW 1. The September 2010 rating decision denying the Veteran’s claims for service connection for a low back condition, hypertension, and ischemic heart disease is final. 38 U.S.C. §§5108, 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the service-connection claim for a low back condition has been received. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. New and material evidence sufficient to reopen the service-connection claim for hypertension has been received. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156(a) (2018). 4. New and material evidence sufficient to reopen the service-connection claim for ischemic heart disease has been received. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156(a) (2018). 5. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 6. The criteria for service connection for a sprained right foot are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 7. The criteria for service connection for a right arm rash are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 8. The criteria for service connection for urethritis are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 9. The criteria for service connection for tinea cruris are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 10. The criteria for service connection for a left eye cyst are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 11. The criteria for service connection for pes planus are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§3.102, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1963 to August 1965. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decision makers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Initially, the Board notes that a May 1978 rating decision denied service connection for a low back condition. The Veteran subsequently filed claims for service connection for a low back condition, high blood pressure and heart blockage in October 2009. A September 2010 rating decision denied service connection for all claims. The Veteran did not file a notice of disagreement nor submit any new and material evidence within one year of that decision. Accordingly, the September 2010 rating decision became final. In October 2012, the Veteran filed an application to reopen his service-connection claims for a low back condition, hypertension and ischemic heart disease. Subsequently, a rating decision was issued in October 2013. Within one year of notice of this rating, the Veteran filed another claim for compensation in October 2013 for all three conditions, as well as additional new and material evidence relevant to the claims. Under the provisions of 38 C.F.R. § 3.156(b), the Veteran’s October 2012 claim therefore remains at issue. As such, the Board finds that the September 2010 rating decision is the last, final, prior rating decision as to the issues of a low back condition, hypertension, and ischemic heart disease. A. Low Back Condition The RO declined to reopen the Veteran’s service-connection claim for a low back condition in September 2010 on the basis that new and material evidence had not been received sufficient to substantiate the claim. Evidence received since September 2010 includes a May 2018 medical opinion authored by Dr. A.A., who opined that the Veteran’s low back disabilities were more likely than not related to heavy lifting in service. The evidence is new, and it is not cumulative or redundant of evidence already of record. The claim for service connection for a low back disability is reopened. B. Hypertension/Ischemic Heart Disease Evidence received since the September 2010 rating decision includes, in pertinent part, two medical opinions that relate the Veteran’s disabilities of hypertension and ischemic heart disease, to his alleged herbicide exposure. The evidence is new, in that it was not previously of record at the time of the September 2010 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. The claims for hypertension and ischemic heart disease are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Low Back Condition The Veteran contends that his low back conditions stem from service, specifically from his duties having to lift heavy helicopter blades and other heavy supplies. See July 2013 Statement in Support of Claim. The Veteran has current low back diagnoses which include lumbosacral degenerative disc disease, lumbar spinal stenosis, lumbar spondylosis, and lumbosacral radiculitis. See January 2016 private treatment note. He submitted a medical opinion in May 2018 authored by Dr. A.A., a board-certified internal medicine physician. She noted a review of the pertinent service treatment records and post-service treatment records. She listed the various instances in service where the Veteran complained of back pain, to include in 1963 after lifting helicopter blades and in 1964 after doing heavy lifting and unloading supplies. A July 1964 service treatment record notes that the Veteran experienced low back pain “related to heavy lifting at his place of work.” Post-service medical records show low back complaints starting in 1978, and it was noted in an April 1978 treatment note that the Veteran “probably” had lumbosacral disc disease. Low back complaints and treatment continued through the present. Dr. A.A. opined that it was more likely than not that the Veteran’s lumbar degenerative disc disease developed secondary to heavy lifting in service. The rationale was that the Veteran could recall multiple instances in service where he developed back pain after heavy lifting, some of which were corroborated by service treatment records. Dr. A.A. cited to and appended medical literature, which noted that improper lifting is noted to be a cause of degenerative disc disease because the repeated stress upon the discs from repeated bending and/or heavy lifting can eventually cause fatigue failure and rupture of the discs. The Board finds Dr. A.A.’s opinion to be probative in the resolution of the matter, and no other medical opinions have been obtained. Dr. A.A. described the Veteran’s relevant medical history as it pertained to his back, cited relevant medical literature, and considered the Veteran’s lay statements as to the onset of his low back conditions. Accordingly, the Board finds that service connection is warranted for a low back condition. 2. Service connection for a sprained right foot 3. Service connection for a right arm rash 4. Service connection for urethritis 5. Service connection for tinea cruris 6. Service connection for a left eye cyst The Veteran generally contends that service connection is warranted for a sprained right foot, right arm rash, urethritis, tinea cruris, and left eye cyst. Service treatment records show treatment for some of the claimed conditions. Indeed, the Veteran was treated in February 1964 for a sebaceous cyst on his left eyelid; for tinea cruris in February 1964; and was diagnosed in November 1964 with urethritis due to gonococcus. Service treatment records do not show any complaints of or treatment for a sprained right foot or right arm rash. His June 1965 separation examination reflects an entirely normal clinical evaluation for all systems, and on the accompanying report of medical history, the Veteran denied having swollen or painful joints, eye trouble, frequent or painful urination, or foot trouble. The Veteran filed a service-connection claim in October 2013. As to the Veteran’s claim for a sprained right ankle, while a March 2016 private treatment note showed that the Veteran had a tumor on his left ankle which was subsequently removed, there is no indication that the Veteran had a sprained right ankle. VA treatment records do not show any treatment of a right ankle condition. The Veteran has not submitted any evidence suggesting that he suffers from a sprained ankle, or pain or residuals thereof. As to the Veteran’s claim for a right arm rash, VA treatment records from 2004 show that the Veteran complained of a rash on his arms since he started on a medication, Glipizide. However, VA records of physical examinations in September 2014, March 2015, April 2015 show that the Veteran did not have any skin rashes. The Veteran has not submitted any evidence suggesting that he suffers from a rash, nor has he contended that any right arm skin rash results from service. As for his claimed urethritis, at a March 2014 medical appointment, the Veteran denied having any bladder problems. CT imaging of the Veteran’s abdomen in January 2015 showed an unremarkable urinary bladder. VA treatment notes dated September 2014 and April 2015 show that the Veteran denied experiencing discharge, dysuria, or increased urination. The Veteran has not submitted any medical evidence showing the presence of urethritis. There are no VA or private treatment records during the period on appeal in which the Veteran has complained of or sought treatment for tinea cruris. The Veteran has not alleged that his claimed tinea cruris is related to the instance of tinea cruris for which he was treated in service. Finally, there is no medical evidence showing that the Veteran has a left eye cyst or any residuals thereof. A January 2016 private treatment note shows that the Veteran denied having any eye discomfort, and a physical examination of the eyes was normal. An April 2016 diabetic eye exam did not note any cysts. The Veteran and his attorney have generally contended that the Veteran warrants service connection for these claimed disabilities, but neither has made any more specific assertions as to the nature of the claimed disabilities or whether any pain symptoms cause functional impairment. Indeed, the Board has considered the Court of Appeals for Veterans Claims recent holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), and finds the evidence of record fails to identify any functional impairment that results from any right foot, right arm rash, urethritis, tinea cruris, or eye cyst symptoms, such that a disability for VA purposes is shown. The threshold requirement for service connection is competent evidence of the claimed disorder. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Without evidence of any of the claimed conditions at any time during the period on appeal, service connection cannot be granted. As noted above, the evidence is against a finding that the Veteran suffers from functional impairment related to any of the claimed disabilities. For these reasons, the preponderance of the evidence is against the claims of entitlement to service connection for a right foot sprain, right arm rash, urethritis, tinea cruris, or left eye cyst. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Service connection for pes planus. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. §3.304. A preexisting injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. On service entrance examination in August 1963, pes planus was noted. No complaints, positive clinical findings, or diagnoses are shown for feet in service, and on service separation report of medical history in June 1965, the Veteran denied having or having had foot trouble. In April 1970, the Veteran claimed service connection for other disorders without claiming service connection for foot trouble. The first post-service evidence of any foot complaint is in November 2009, when a VA treatment note shows the presence of onychomycosis. December 2013 VA imaging showed the presence of a pes planus deformity bilaterally, to a greater degree on the right. At that time, the Veteran did not assert that such was related to, or aggravated by, his period of military service. Based on the foregoing, the Board concludes that service connection is not warranted for pes planus. First, the condition was noted on service entrance examination, and the available service treatment records are absent for any complaints, findings, or treatment for the preexisting pes planus. More significantly, on a separation examination report of medical history in June 1965, the Veteran denied experiencing foot trouble. He was also examined at separation, and was identified as having a “normal” clinical evaluation of the feet. Thus, there is no indication that the Veteran’s pes planus underwent an increase in severity in service. While pes planus has been subsequently noted, there is no contention by the Veteran that it went an increase in severity in service, nor has the Veteran offered any medical evidence or opinion suggesting that the condition was aggravated in service. In light of the above, the Board finds that the weight of the evidence demonstrates that the preexisting pes planus did not increase in severity during service beyond its natural progression – i.e., it was not aggravated by service; therefore, the criteria for service connection for pes planus, based on aggravation in service, have not been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. REASONS FOR REMAND 1. Service connection for a respiratory disability is remanded. Initially, the Board notes that the Veteran’s service-connection claim has been adjudicated by the Agency of Original Jurisdiction (AOJ) as one for bronchitis alone. The evidence demonstrates that he has also been diagnosed with and treated for other respiratory problems, to include emphysema, asthma and COPD. In light of these diagnoses and treatments, the Board has expanded the Veteran’s claim to include consideration of whether service-connection is warranted for any respiratory disability. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s service treatment records show that he experienced and was treated for acute bronchitis in service in June 1964. Recent treatment records show diagnoses of emphysema, COPD, and asthma in March 2014. The Veteran, in January 2016, complained of shortness of breath, wheezing, and cough. Accordingly, given his in-service treatment and current diagnoses and complaints, the Board finds that the Veteran should undergo a VA respiratory examination. 2. Service connection for ischemic heart disease. 3. Service connection for hypertension. The Veteran asserts that his heart condition and hypertension may be related to herbicide exposure from Vietnam and/or Thailand service. See June 2018 Correspondence. Indeed, he has submitted two medical opinions which state that both conditions are at least as likely as not related to his herbicide exposure. However, the Veteran’s claimed service in Vietnam or Thailand has not been verified. He has specifically claimed that he was in Vietnam from March 1965 to June 1965 and in Thailand in 1964. In June 2010, VA produced a formal finding of a lack of information required to corroborate service in Vietnam for the purpose of verification of herbicide exposure. It appears from the record that the AOJ may have only secured limited service personnel records (SPRs) for the Veteran. A February 2010 request indicates that the request for the Veteran’s personnel files was made with PIES request O19. However, it does not appear the AOJ made a request for the entire personnel file using PIES request code O18, which would include performance ratings. The Board believes that the Veteran’s full personnel file may provide more information as to when and where the Veteran served during his period of active duty, and should be requested on Remand. 4. Service connection for testicle pain. The Veteran has complained of pain in his groin area during the course of the appeal, and has suggested that it may be related to his back pain. See May 2015 VA treatment note. The Veteran had treatment in service for testicle pain, in September 1963. Herein, the Board has granted service connection for a low back condition. Given the Veteran’s assertions, his treatment in service, and his present complaints, the Board finds that the Veteran should undergo an appropriate examination to ascertain whether any of the Veteran’s current complaints are related to either the Veteran’s complaints in service, or to his now service-connected low back disability. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain the Veteran’s complete service personnel records for his period of active service from August 1963 to August 1965, including making a request under PIES Request Code O18. If any requested personnel records are not available, or the search for any records otherwise yields negative results, that fact must be clearly documented. 2. Schedule the Veteran for an appropriate respiratory examination. The examiner should conduct appropriate testing, if medically warranted. Upon review of the file, the examiner is asked to address the following: (a.) Identify any respiratory diagnoses that have existed since October 2013. The Board notes that the record shows diagnoses of emphysema, asthma and COPD. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a respiratory condition that had onset in, or is otherwise related to his period of service, to include his treatment for acute bronchitis in June 1964? 3. Schedule the Veteran for an appropriate male reproductive examination. The examiner should take a history from the Veteran as to the progression of his claimed testicle pain. Upon review of the file, the examiner is asked to address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has testicle pain that had onset in, or is otherwise related to his period of service, to include his treatment for testicle pain in September 1963? (b.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed testicle pain has been caused or aggravated beyond its natural progression by the Veteran’s now service-connected low back disability? 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel