Citation Nr: 19196469 Decision Date: 12/27/19 Archive Date: 12/27/19 DOCKET NO. 16-15 969 DATE: December 27, 2019 ORDER New and material evidence having been received, the claim for entitlement to service connection for Hepatitis C is reopened, and, to that extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened, and, to that extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for angina is reopened, and, to that extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened, and, to that extent only, the appeal is granted. Entitlement to service connection for abdominal and pelvic cancer is denied. Entitlement to service connection for thyroid cancer (claimed as thyroid nodules) is denied. Entitlement to service connection for cancer of the parotid gland (claimed as residuals of parotidectomy) is denied. Entitlement to service connection for renal cancer (claimed as robotic partial nephrectomy) is denied. REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for chronic sinusitis is remanded. Entitlement to service connection for allergic conjunctivitis is remanded. Entitlement to service connection for major depressive disorder (MDD) is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for a heart condition (claimed as a heart valve/disorder) is remanded. Entitlement to service connection for angina pectoris is remanded. Entitlement to service connection for residuals, ventral hernia, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gastroesophageal reflex disease (GERD) is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for a lung condition (claimed as atelectasis) is remanded. Entitlement to service connection for hematochezia is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for cholelithiases is remanded. Entitlement to service connection for an autoimmune disorder is remanded. Entitlement to service connection for a colon condition (claimed as colonoscopy disease and polypectomy) is remanded. Entitlement to service connection for an eye condition (claimed as sicca) is remanded. FINDINGS OF FACT 1. An August 2001 rating decision denied service connection for Hepatitis C. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for Hepatitis C and raises a reasonable possibility of substantiating the claim. 3. A July 2007 rating decision denied service connection for hypertension, angina, and PTSD. The rating decision was not appealed nor was new and material evidence received within the appeal period. 4. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for hypertension, angina, and PTSD and raises a reasonable possibility of substantiating the claims. 5. A preponderance of the evidence is against a finding that the Veteran’s abdominal and pelvic cancer is related to active service. 6. A preponderance of the evidence is against a finding that the Veteran’s thyroid cancer is related to active service. 7. A preponderance of the evidence is against a finding that the Veteran’s parotid gland cancer is related to active service. 8. A preponderance of the evidence is against a finding that the Veteran’s renal cancer is related to active service. CONCLUSIONS OF LAW 1. The August 2001 rating decision that denied service connection for Hepatitis C is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claim of service connection for Hepatitis C is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The July 2007 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has been received; the claim of service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The July 2007 rating decision that denied service connection for angina is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 6. New and material evidence has been received; the claim of service connection for angina pectoris is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The July 2007 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 8. New and material evidence has been received; the claim of service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The criteria for service connection for abdominal and pelvic cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 10. The criteria for service connection for thyroid cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 11. The criteria for service connection for parotid gland cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 12. The criteria for service connection for renal cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to February 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. New and Material Evidence Whether new and material evidence has been received to reopen the claims for service connection for Hepatitis C, hypertension, angina, and PTSD. Because there is considerable overlap in the applicable evidence for the Veteran’s claims to reopen his service connection claims for Hepatitis C, hypertension, angina, and PTSD, the Board will discuss the claims together. Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Facts and Analysis In this case, service connection for Hepatitis C was initially denied in an August 2001 rating decision and hypertension, angina and PTSD were denied in a July 2007 rating decision. Those rating decisions were not appealed nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since those decisions includes a March 2019 hearing transcript. This evidence is new to the record, relates to previously unestablished facts to support the claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). Accordingly, the claims are reopened, and any deficiencies of notification and development in this case will be addressed on remand. Service Connection Entitlement to service connection for abdominal and pelvic cancer, thyroid cancer (claimed as thyroid nodules), cancer of the parotid gland (claimed as residuals of parotidectomy), and renal cancer (claimed as robotic partial nephrectomy) is denied. Because there is considerable overlap in the applicable evidence for the Veteran’s claims for service connection for abdominal and pelvic cancer, thyroid cancer, parotid gland cancer, and renal cancer, the Board will discuss the claims together. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. § 3.303(d). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Facts and analysis The Veteran meets the first element of service connection, a present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In a July 2018 VA treatment report, it was noted that the Veteran had kidney cancer. In a March 2019 VA treatment report, it was noted that he had parotid cancer. In an April 2019 VA treatment report, it was noted that the Veteran had renal and papillary thyroid cancer. The Veteran does not meet the second and third elements of service connection, an in-service incurrence or aggravation of a disease or injury; or a nexus between the claimed in-service disease or injury and the present disability. Id. Service treatment records (STRs) are silent for any treatments, complaints, or diagnoses of cancer during active service or within one year of discharge. Additionally, on the Veteran’s January 1978 Report of Medical Examination and Report of Medical History for separation, no problems related to the Veteran’s various cancers were noted. In his March 2019 hearing, the Veteran testified that his claimed gas/chemical exposure during active service as well as the stress from his parachute jumps caused his various cancers. The Board has not overlooked the Veteran’s, or any other, lay statements with regard to his diagnosed cancers. Lay persons are competent to report on factual matters of which they had firsthand knowledge; and the Board finds that the reports concerning the Veteran’s cancer symptoms post-service are credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, there is no basis for concluding that a lay person is competent to discern whether any given symptoms constitute a diagnosis of abdominal and pelvic cancer, thyroid cancer, parotid gland cancer, or renal cancer, or are related to service, in the absence of specialized medical training, which in this case has not been established. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. The Board notes that the Veteran was not exposed to herbicide agents and that none of his claimed disabilities falls under a presumptive condition listed in 38 C.F.R. § 3.309. The Veteran has never had a VA examination for his various cancers. In a claim for service connection, VA’s duty to assist the Veteran includes providing a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). With respect to the third factor above, this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the Veteran’s service. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no examination is necessary to adjudicate the Veteran’s claims of service connection for his cancers. Specifically, there is no indication, besides the Veteran’s own statements, that his diagnosed abdominal and pelvic cancer, thyroid cancer, parotid gland cancer, and renal cancer are related to active service. While the Veteran has been diagnosed with the asserted conditions, there is no evidence of these conditions (or any symptoms thereof) occurring in service or for many years after, there is no evidence of a manifestation of the conditions during any applicable presumptive period, and there is no medical evidence of a nexus relating the diagnosed cancers to service. As such, a VA examination is not warranted. Id. Based on the above analysis, the preponderance of the evidence is against the claims for service connection for abdominal and pelvic cancer, thyroid cancer, parotid gland cancer, and renal cancer, and the claims must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for PTSD, MDD, and an acquired psychiatric disorder are remanded. On the Veteran’s January 1974 Report of Medical Examination for induction, it was noted that the Veteran had mild depression. Service treatment records (STRs) from May 1975 noted that the Veteran had “malaise” and depression during service. On the Veteran’s January 1978 Report of Medical History for separation, he noted depression. Additionally, in the March 2019 hearing, the Veteran testified that he was court-martialed for fighting with a superior officer who was racially abusing him, which aggravated his pre-existing depression. Because depression was noted on the Veteran’s entrance examination, a new VA examination is necessary to determine whether his pre-existing depression, or any other diagnosed psychological condition, pre-existed service, and if so, whether it was aggravated by service. If the Veteran is diagnosed with multiple psychological disabilities, causal opinions are necessary for these as well. 2. Entitlement to service connection for allergies is remanded. On the Veteran’s January 1974 Report of Medical Examination for induction, it was noted that the Veteran had hay fever. On the Veteran’s January 1978 Report of Medical History for separation, he noted hay fever. Because hay fever was noted on the Veteran’s entrance examination, a new VA examination is necessary to determine whether his pre-existing hay fever, or any other diagnosed allergic condition pre-existed service, and if so, whether it was aggravated by service. 3. Entitlement to service connection for chronic sinusitis, CFS, and Hepatitis C are remanded. In a July 2013 VA opinion, the examiner found that it was less likely than not that the Veteran’s sinusitis and CFS were related to active service. However, the Veteran’s claims file seems to only contain this opinion, not the actual VA examination report that it was based on. In April 2019, a private physician opined that the Veteran’s sinusitis, CFS, and Hepatitis C were related to active service. However, these opinions did not have adequate rationale and were conclusory. Because both the July 2013 VA opinion and the April 2019 private opinions are inadequate, the Board is remanding these three issues for a new VA examination to determine whether the Veteran’s chronic sinusitis, CFS, and Hepatitis C are related to active service. 4. Entitlement to service connection for allergic conjunctivitis and an eye condition is remanded. In March 1974, May 1975, December 1976, and August 1977 STRs, it was noted that the Veteran had double vision, a stye, and complained of other problems. The Veteran has never had a VA examination to determine if he is diagnosed with allergic conjunctivitis, or any other eye condition, and if he is, whether it is related to active service. Because of this, a remand is necessary for a VA eye examination. 5. Entitlement to service connection for a heart condition, angina pectoris, residuals of ventral hernia, hypertension, GERD, a lung condition, hematochezia, sleep apnea, cholelithiases, an autoimmune disorder, and a colon condition are remanded. On his January 1978 Report of Medical History for separation, the Veteran noted that he had swollen or painful joints, frequent or severe headaches, dizziness or fainting spells, eye trouble, ear nose and throat trouble, sinusitis, hay fever, pain or pressure in his chest, cramps in his legs, frequent trouble sleeping, depression and nervous trouble. In his March 2019 hearing, the Veteran testified that he injured his head during active service while at Fort Bragg. He stated that he jumped out of airplanes at least 15 times, and that one time, when he landed, he was dragged by the wind in his parachute, with his head bouncing against the ground. The Veteran testified that this incident “messed up” a lot of nerves in his brain and neck. Additionally, the Veteran stated that during basic training, he was exposed to gases and other chemicals. The Veteran testified that about 6-8 months after his head injury, he started having headaches and blackouts but did not receive treatment. He stated that all his current disabilities were related to his head injury and gas/chemical exposure during active service. He noted that after he was transferred to Washington, D.C., and placed on the Honor Guard, he had to deal with racial discrimination and abuse which caused his sleep problems and psychological issues. The Board notes that the Veteran has never had VA examinations for any of the above conditions. On remand, VA examinations are necessary to determine what, if any, conditions the Veteran is diagnosed with and if they are causally related to active service.   The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his disabilities and make efforts to obtain all VA and private treatment records concerning these claims. 2. Schedule the Veteran for a VA mental health examination, to be conducted by a VA psychologist or psychiatrist, to determine the identity and etiology of any psychiatric disorder, to include depression and PTSD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to prepare a report which fully discusses the Veteran’s symptoms as related to the diagnostic criteria for depression and PTSD. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is asked to address the following questions: Is it at least as likely as not (a 50 percent probability or greater) that the depression noted at the time of the Veteran’s January 1974 enlistment examination permanently increased in severity during the Veteran’s period of active service, to include the racial discrimination and stress that the Veteran testified about in his March 2019 hearing? If such an increase occurred, was any increase clearly and unmistakably (obviously, manifestly or undebatable) due to the natural progression of the disease, or if not, due to aggravation of the condition by his active service, to include the racial discrimination and stress that the Veteran testified about in his March 2019 hearing. If PTSD is diagnosed following testing, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that it is directly related to active military service. If any other psychological disorder is diagnosed following testing, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that it is directly related to active military service, to include the racial discrimination and stress that the Veteran testified about in his March 2019 hearing. 3. Schedule the Veteran for a VA examination to determine the identity and etiology of any diagnosed hay fever or allergy condition. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to prepare a report which fully discusses the Veteran’s symptoms. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is asked to address the following questions: Is it at least as likely as not (a 50 percent probability or greater) that the hay fever noted at the time of the Veteran’s January 1974 enlistment examination permanently increased in severity during the Veteran’s period of active service, to include the Veteran’s head injury and exposure to gas and other chemicals? If such an increase occurred, was any increase clearly and unmistakably (obviously, manifestly or undebatable) due to the natural progression of the disease, or if not, due to aggravation of the condition by his active service. If any other allergic condition is diagnosed following testing, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that it is directly related to active military service, to include the Veteran’s head injury and exposure to gas and other chemicals. 4. Schedule the Veteran for VA examinations to determine the identity and etiology of any diagnosed allergic conjunctivitis or any other eye condition. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to prepare a report which fully discusses the Veteran’s symptoms. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that allergic conjunctivitis, or any other eye condition, is directly related to active military service, to include the Veteran’s head injury and exposure to gas and chemicals. 5. Schedule the Veteran for VA examinations to determine the identity and etiology of any diagnosed chronic sinusitis, chronic fatigue syndrome, Hepatitis C, heart condition, angina pectoris, residuals of ventral hernia, hypertension, GERD, lung condition, hematochezia, cholelithiases, autoimmune disorder, and colon condition. Prior to the examinations, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to prepare a report which fully discusses the Veteran’s symptoms. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that these conditions are directly related to active military service, to include the Veteran’s head injury, exposure to gas and chemicals, and the racial discrimination and stress that the Veteran testified about in his March 2019 hearing. 6. The AOJ should then schedule the Veteran for a VA examination to assist in determining the nature and cause of his sleep problems, to include sleep apnea. The Veteran’s claims folder must be made available to the examiner. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: Please identify the likely cause of the Veteran’s sleep problems. Specifically, is it at least as likely as not that this disability was incurred during active military service or is otherwise related to military service? In addition, although sleep apnea is often diagnosed by overnight polysomnogram (sleep study), the Board notes that several other clinical predictors of sleep apnea have been developed, including questionnaires such as the STOP-BANG, a validated screening tool for sleep apnea (See, e.g. “STOP-Bang Questionnaire: A Practical Approach to Screen for Obstructive Sleep Apnea” published in the peer-reviewed medical journal Chest in March 2016 at 149(3):631-8 (noting 8 clinical predictors of sleep apnea, including Snoring, Tiredness during the day, Observed apnea during sleep, high blood Pressure, BMI (Body Mass Index) greater than 35 kg/m2, Age over 50 years, Neck circumference greater than 40 cm, and male Gender)). Therefore, while reviewing the claims file, the examiner should consider whether any clinical indicators of sleep apnea were present IN THE PAST, for example, during service or any time after service but before a formal sleep diagnosis. The examiner should identify any such clinical indicators and explain whether they might support a retrospective sleep apnea diagnosis. 7. If the VA examiner determines that some of the Veteran’s claimed conditions overlap and have the same symptoms, a notation to that effect should be included in the appropriate VA examination report. (Continued on next page)   8. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan Abrams, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.