Citation Nr: 20022025 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-22 000 DATE: March 30, 2020 ORDER New and material evidence has been submitted to reopen the previously denied claim for entitlement to service connection for lumbar strain. New and material evidence has been submitted to reopen the previously denied claim for entitlement to service connection for asthma. REMANDED The reopened claim for entitlement to service connection for lumbar strain is remanded. The reopened claim for entitlement to service connection for asthma, to include as due to herbicide exposure, is remanded. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction and bilateral nuclear sclerotic cataracts is remanded. Entitlement to service connection for right hip replacement is remanded. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for gunshot wound to back is remanded. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals, from being stabbed in back is remanded. FINDINGS OF FACT 1. A July 1990 rating decision to which the Veteran was notified in August 1990 denied service connection for lumbar strain; the Veteran did not perfect a timely appeal with respect to the July 1990 rating decision and no pertinent exception to finality applies. 2. A March 2013 rating decision to which the Veteran was notified in that same month denied service connection for lumbar strain and asthma; the Veteran did not perfect a timely appeal with respect to the March 2013 rating decision and no pertinent exception to finality applies. 3. Evidence received since the March 2013 rating decision raises a reasonable possibility of substantiating the claim for service connection for lumbar strain and asthma. CONCLUSIONS OF LAW 1. The March 2013 rating decision that denied service connection for lumbar strain and asthma is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen the previous denials of the claims for service connection for lumbar strain and asthma. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified before the undersigned Veterans Law Judge during a January 2020 hearing. A transcript of the hearing is associated with the Veteran’s claim file. New and Material Evidence Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2018). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “A must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A July 1990 rating decision to which the Veteran was notified in that same month denied service connection for lumbar strain. The Veteran did not perfect a timely appeal with respect to the July 1990 rating decision and none of the pertinent exceptions to finality applies exceptions to this decision, i.e., no additional evidence was received within the one-year appeal period following the July 1990 rating decision and no additional service department records have since been associated with the claims file warranting reconsideration of the claim for service connection for lumbar strain. Therefore, the July 1990 rating decision is final as to the evidence then of record and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. A March 2013 rating decision to which the Veteran was notified in that same month denied service connection for lumbar strain and asthma. The Veteran did not perfect a timely appeal with respect to the March 2013 rating decision and no pertinent exception to finality applies. Therefore, the March 2013 rating decision is final as to the evidence then of record and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. This is the most recent final decision addressing the claim for service connection for lumbar strain and asthma. 1. New and material evidence for lumbar strain By way of background, the Veteran was initially denied service connection for lumbar strain in July 1990 and that decision was confirmed and continued by a March 2013 rating decision. The March 2013 rating decision did not reopen the claim as there was no new and material evidence received to reopen the claim. The evidence of record at the time of the most recent final rating decision addressing the claim for service connection for lumbar strain in March 2013 included the service treatment records (STRs) and an April 1990 VA examination. The evidence of record since the March 2013 rating decision includes testimony from the Veteran regarding a relationship between his lumbar strain and certain events in service. The statements from the Veteran are new because it was not before the RO at the time of the March 2013 rating decision. In addition, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate his claim for service connection for lumbar strain. In this regard, the Board finds that the evidence submitted is both new and material, and his claim for service connection for lumbar strain is reopened. 2. New and material evidence for asthma The Veteran was initially denied service connection for asthma in March 2013. The RO denied service connection on the basis that there was no evidence of asthma in service. The evidence of record at the time of the most recent final rating decision addressing the claim for service connection for asthma in March 2013 included the Veteran’s STRs. The evidence of record since the March 2013 rating decision includes testimony from the Veteran regarding a relationship between his asthma and certain events in service. The statements from the Veteran are new because it was not before the RO at the time of the March 2013 rating decision. In addition, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate his claim for service connection for asthma. In this regard, the Board finds that the evidence submitted is both new and material, and his claim for service connection for asthma is reopened. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159. Evidence indicates that there may be outstanding relevant VA treatment records. At the January 2020 Board hearing, the Veteran reported treatment for his back and asthma at the VA in New York, New York and Brooklyn, New York since he was discharged from service in 1969. See January 2020 Board hearing testimony at pgs. 17, 34. After review of the Veteran’s claims file, the earliest VA treatment records are dated from September 2009. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain the VA treatment records from April 1969 to September 2009. Additionally, it appears that the Veteran is in receipt of Social Security Administration (SSA) benefits. See May 2012 VA treatment record. However, it does not appear that the RO has attempted to obtain the Veteran's SSA records. As such, a remand is necessary to obtain such records. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). 1. Service connection for lumbar strain The Veteran contends that he has a low back condition that had an onset in service or is otherwise related to service. Upon review of the STRs, the Veteran’s entrance examination from March 1966 is silent for any back condition. The Veteran reported low back pain in July 1966. In November 1967, he complained of pain and swelling in his right back for the past fifteen months. At the January 2020 Board hearing, the Veteran testified that he injured his back when he was in Vietnam. He testified that he saved another soldier’s life by helping the soldier lift a big transmission out of the two-and-a-half-ton diesel truck. He ended up straining his back because the transmission was heavy. The Veteran stated that he went to the doctor in Vietnam and was given medication. Furthermore, the Veteran also acknowledged that he had a post-service injury during his employment with UPS when he was hit by a car. See January 2020 Board hearing transcript at pgs. 22-27. The Veteran stated that he received an Army Commendation Award for his actions for helping save the life of another solider. See January 2020 Board hearing transcript at pg. 35. The Veteran’s military personnel records confirm that the Veteran was awarded the Army Commendation Medal for Heroism in September 1967 for his actions from March 1967. The award verifies that while serving with the Transportation Motor Pool in Cam Rahn, Vietnam, he attempted to bring a fellow soldier, who was covered with burning fuel, to the ground, and extinguishing the flames with sand. As such, the question remaining before the Board is whether there is a nexus, or link, between the Veteran’s lumbar condition and the Veteran’s service. While he was afforded a VA examination in April 1990, it does not appear that a medical opinion was provided. The Veteran should be afforded a VA examination to determine the nature of his lumbar condition. 2. Service connection for asthma The Veteran contends that his asthma is due to his time in Vietnam when he was exposed to napalm and herbicide agents. Although the Veteran’s STRs are silent for any complaints of asthma or lung-related conditions, he has stated that he was caught in a napalm bomb in Vietnam and he noticed that “right away it started messing with my breathing.” He also stated that the heavy cloud changed the color of his truck and he knew he was breathing in something. See January 2020 Board hearing transcript at pgs. 12-13. The Veteran further testified that he was given medication to help clear his lungs but was told there was not much that could be done for it. See January 2020 Board hearing transcript at pg. 14. The Veteran’s military personnel records show that he was stationed at the Republic of Vietnam from December 1966 to December 1967. Thus, exposure to herbicide agents is presumed. A December 2002 private treatment records from Dr. A.N. shows that the Veteran was seen for asthma with infrequent wheezing. The Board notes that the Veteran has not been afforded a VA examination with respect to his current claim of service connection for asthma. VA’s duty to assist includes providing a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, a remand is warranted for a VA examination and medical opinion to determine the nature of the Veteran’s asthma. 3. Increased evaluation for diabetes mellitus type II with erectile dysfunction and bilateral nuclear sclerotic cataracts The Veteran maintains that his diabetes mellitus type II warrants a higher evaluation that the currently assigned 20 percent evaluation. As an initial matter, the Board notes that the Veteran was previously service connected for other noncompensable complications related to his diabetes mellitus, to include nonproliferative diabetic retinopathy of the right eye and diabetic nephropathy. In March 2018, the RO severed service connection for these two conditions based on clear and unmistakable error (CUE) as the evidence did not show that the Veteran had either condition. As both these complications were noncompensable, the Veteran’s diabetes mellitus type II evaluation was continued at 20 percent. His combined evaluation was unaffected and remained at 20 percent. The Veteran was most recently afforded a VA examination for his diabetes in October 2017. At that time, the Veteran was not found to have bilateral upper and lower extremity neuropathy related to his diabetes. However, during a February 2018 diabetic foot check at the VA Medical Center, the Veteran reported that he has burning, numbness, and tingling of his feet. Furthermore, in February 2018, he submitted a claim for tingling in the upper and lower extremities secondary to diabetes. See February 2018 VA Form 21-526EZ, Fully Developed Claim. As the above evidence indicates possible new complications involving the Veteran’s bilateral upper and lower extremities since his last VA examination, an additional VA examination should be afforded to determine the current level of severity of his disability and whether he has any other related complications. 4. Service connection for right hip replacement 5. New and material evidence for gunshot wound to back 6. New and material evidence for residuals due to stabbed in back As noted previously, the Veteran has outstanding VA treatment records and SSA records that may be relevant to his claims on appeal. Although the Veteran stated at the January 2020 Board hearing that these conditions are related to events after he was discharged from service, as the VA has actual knowledge that such records may exist, they must be obtained prior to any decision made in these matters. Consequently, the Board finds it necessary for the RO to secure these records on remand. The matters are REMANDED for the following action: 1. Obtain VA treatment records from March 2018 to present. Additionally, obtain VA treatment records for the period from April 1969 to September 2009 from the New York, New York and Brooklyn, New York VAMCs. All reasonable attempts should be made to obtain these records and must be documented in the record. 2. Obtain the Veteran's Social Security Administration records. All reasonable attempts should be made to obtain these records and must be documented in the record. 3. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records that relate to the issues on appeal. He should be asked to provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 4. After completion of the above, arrange for a VA examination with a medical opinion to address the claim for service connection for lumbar strain. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a low back condition that: a) had an onset in service; or b) is otherwise related to service? The examiner must address the Veteran’s Army Commendation Medal for Heroism from March 1967. The Veteran had testified he hurt his back during this encounter. The examiner must also address the post-service incident where the Veteran injured his back during employment with UPS when he was hit by a car. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 5. Arrange for a VA examination with a medical opinion to address the claim for service connection for asthma. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has asthma that: a) had an onset in service; or b) is otherwise related to service, to include exposure to herbicide agents and/or napalm? In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 5. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected diabetes mellitus, to include bilateral upper and lower extremity neuropathy. All appropriate tests or studies must should be conducted. The examiner should specifically have the Veteran provide a full account of his symptoms. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with these conditions. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate 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.