Citation Nr: 20032575 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 15-24 665 DATE: May 8, 2020 ORDER As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for left hip disorder is granted. As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for right hip disorder is granted. As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for diabetes mellitus is granted. As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for hypertension is granted. As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for asthma is granted. As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for residuals of stroke is granted. Entitlement to service connection for a disability associated with mad cow disease is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for right hip disorder, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for residuals of cerebral vascular accident (stroke) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a liver disorder is remanded. Entitlement to service connection for peripheral neuropathy in the bilateral lower extremities associated with diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy in the bilateral upper extremities associated with diabetes mellitus is remanded. Entitlement to service connection for bilateral eye disorder, to include glaucoma, associated with diabetes mellitus is remanded. FINDINGS OF FACT 1. In a March 1992 rating decision, the RO denied the Veteran’s claim for service connection for left hip condition because the evidence failed to demonstrate a current disability that was incurred in service. 2. Since March 1992, additional evidence has been associated with the claims folder that relates to an unestablished fact necessary for substantiating the claim for service connection for left hip disorder. 3. In an October 2004 decision, the Board denied the claims for entitlement to service connection for diabetes mellitus, hypertension, asthma, residuals of stroke, and right hip disorder. 4. Since the October 2004 Board decision, additional evidence has been associated with the claims folder that relates to unestablished facts necessary for substantiating the claims for service connection for diabetes mellitus, hypertension, asthma, residuals of stroke, and right hip disorder. 5. There is no competent evidence indicating that the Veteran has a current diagnosis associated with mad cow disease exposure at any time during the claim on appeal. 6. The Veteran’s current sleep apnea did not have its onset until years after his separation from service, and the preponderance of the evidence is against a finding that it is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim for service connection for left hip disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 2. The criteria to reopen the previously denied claim for service connection for right hip disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 3. The criteria to reopen the previously denied claim for service connection for diabetes mellitus have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 4. The criteria to reopen the previously denied claim for service connection for hypertension have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 5. The criteria to reopen the previously denied claim for service connection for asthma have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 6. The criteria to reopen the previously denied claim for service connection for residuals of stroke have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 7. The criteria for entitlement to service connection for a disability associated with mad cow disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2019) 8. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1987 to September 1991. In August 2018, the Veteran provided testimony to the undersigned during a Board hearing held at the Regional Office (RO). During the hearing, the Veteran provided a waiver of initial RO consideration of additional evidence associated with the claims folder since his claims were last adjudicated in August 2015 and December 2016 statement of the cases (SOCs). With respect to the additional VA treatment records that have been associated with the claims file since the August 2018 Board hearing, those records are not relevant to the outcome of the appeals decided herein. Those issues that are directly affected by the additional VA treatment records are remanded below. New and Material Evidence Generally, a claim that has been denied in a final Board or 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. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). 1. The petition to reopen the previously denied claim for service connection for left hip pain The Veteran’s claim for service connection for left hip pain was denied in a March 1992 rating decision due to a lack of current disability related to his military service. The Veteran did not submit a notice of disagreement or new evidence in connection with the claim within the appeal period of that decision. Thus, the March 1992 rating decision became final. See 38 C.F.R. § 3.156 (b) (1992). In December 2010, the Veteran sought to reopen his previously denied claim for left hip pain (now claimed as hip condition, to include as secondary to lumbar spine disability). The additional medical evidence shows the Veteran has diagnoses of femoroacetabular impingement (FAI) and osteoarthritis in the left hip. See VA and private treatment records. In addition, in written statements and testimony before the Board, the Veteran has indicated that his hip problems have persisted and progressively worsened since his period of active duty. The Board finds that the Veteran’s lay assertions, in tandem with the additional medical records, are both new and material, and relate to an unestablished fact necessary to substantiate the claim. Accordingly, the Veteran’s claim for left hip pain is considered reopened. 2. The petition to reopen the previously denied claim for service connection for right hip disorder is granted. 3. The petition to reopen the previously denied claim for service connection for diabetes mellitus is granted. 4. The petition to reopen the previously denied claim for service connection for hypertension is granted. 5. The petition to reopen the previously denied claim for service connection for asthma is granted. 6. The petition to reopen the previously denied claim for service connection for residuals of stroke is granted. In an October 2004 decision, the Board denied entitlement to service connection for diabetes mellitus, hypertension, asthma, residuals of stroke, and right hip disorder. In denying claims for service connection for diabetes mellitus and hypertension, the Board found that there was no evidence of an in-service incurrence of the disease or manifestation of within the presumptive periods as well as a lack of competent evidence directly linking the Veteran’s current disorders to his period of service. In denying the claims for asthma, residuals of stroke, and right hip disorder, the Board found that there was no evidence of an in-service incurrence of the disease and no competent evidence linking the Veteran’s current disorders to his period of service or service-connected disability. The Veteran did not appeal that decision to the Court of Appeals of Veteran’s Claims (Court). The October 2004 Board decision is final. 38 C.F.R. § 20.1100. In December 2010, the Veteran sought to reopen his previously denied claim for entitlement to service connection for a right hip disorder, and in July 2014, the Veteran sought to reopen his previously denied claims for entitlement to service connection for diabetes mellitus, hypertension, asthma, and residuals of stroke. Additional evidence since the October 2004 Board decision consists of VA treatment records, private treatment records, and the Veteran’s lay statements and testimony. The additional VA and private treatment show that the Veteran has a currently diagnosed right hip disorder as well as reflect possible cerebral vascular accident (CVA). During his Board hearing, the Veteran provided additional lay evidence regarding the onset of his diabetes mellitus, hypertension, and asthma disorders had an onset during service as well as the progression of these disorders since his period of active duty. The Board finds that the new and material evidence, which raises a reasonable possibility of substantiating the claims for service connection. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010); Justus, 3 Vet. App. at 513. As new and material evidence has been received, the reopening of the previously denied claims are warranted. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In order to prevail on the issue of service connection, there must competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 7. Entitlement to service connection for a disability associated with mad cow disease The Veteran seeks service connection for a disability associated with mad cow disease exposure during service. Specifically, the Veteran asserts that, while he was stationed in Germany, he ate beef and he was later told about mad cow disease in that area. He contends that he currently suffers from residuals due to exposure to mad cow disease. The initial question for the Board is whether a current disability exists. A review of the medical evidence of record does not show that a clinical diagnosis of a brain or neurological disorder (resolved or unresolved), to include a human form of mad cow disease called variant Creutzfeldt-Jakob disease (vCJD), has been made at any time during the appeal period. The Veteran has not specifically identified what conditions he believes to be a result of such alleged exposure to mad cow disease. Rather, he has expressed a belief that he has variety health problems that could be related to such exposure. There is no evidence that a diagnosis of vCJD has ever been rendered or that any of the Veteran’s claimed health problems have been attributed to vCJD, mad cow disease, or any other neurological or brain disorder. To the contrary, VA treatment records show that the Veteran specifically denied undergoing a brain biopsy, which is the necessary diagnostic test to confirm exposure to mad cow disease. See VA treatment records dated October 2013, August 2014, and August 2016. Although the Veteran later informed his treating VA physician that he had undergone a brain biopsy, there is no record of such procedure. See August 2017 VA treatment record. Full consideration has been given to the Veteran’s assertions that he suffers from residuals of exposure to mad cow disease and/or vCJD. The Veteran is competent to report that which he has personally experienced, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran is not competent to diagnose a neurological disability nor the etiology of such disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for a disability associated with mad cow disease exposure. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 8. Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea. He contends that his sleep apnea is a result of his period of service. During his August 2018 Board hearing, the Veteran testified he did not experience symptoms in service and his sleep apnea was not diagnosed until after service. However, he felt that his sleep apnea was result of progressive body changes caused by his period of service. He further stated that his sleep apnea was result of vaccinations and injections he received prior to his deployments. 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 related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran has not asserted, and the record does not show, that his sleep apnea had an onset during his period of service. His service treatment records do not show any complaints, treatment or diagnosis of any sleep-related disorder. Rather, the Veteran specifically denied any history of sleep-related problems on his August 1991 report of medical history prior to separation. There is no evidence of in-service disease, to include lay evidence, that the Veteran had a sleep-related disorder during service. Moreover, the Veteran does not contend that he had sleep apnea symptoms since service. Instead, the first medical evidence of sleep apnea comes in June 2011, when the Veteran complained of a personal history of loud snoring and familial history of sleep apnea. A diagnosis of sleep apnea was confirmed based on a June 2011 VA sleep study consult. There is no indication of sleep apnea until two decades after service. There is no competent evidence linking the Veteran’s current sleep apnea to his period of service. The record contains the Veteran’s assertions that his sleep apnea is related to progressive body changes caused by his period of service or vaccination shots, which is not competent evidence of a link between his sleep apnea and his period of service. In this regard, the Veteran has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his sleep apnea, which is not the type of condition that is readily amenable to probative lay comment regarding appropriate diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the evidence and analysis above the Board finds the Veteran does not have sleep apnea that is incurred in or otherwise related to service; accordingly, the claim must be denied. Because the preponderance of the evidence is against the Veteran’s claim the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected disability is remanded. 2. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disability is remanded. The Veteran seeks entitlement to service connection for right hip and left hip disorders. He contends that his current bilateral hip disorder is a result of his period of service or secondary to his service-connected disability. VA and private medical records show that the Veteran has current diagnoses of femoroacetabular impingement (FAI) and osteoarthritis in his hips, and status post right total hip replacement. The record contains a January 2011 VA medical opinion that addressed whether the Veteran’s current bilateral hip disorder is proximately caused by his service-connected lumbar spine disability. However, the January 2011 VA examiner does not address whether the Veteran’s bilateral hip disorder was aggravated by his service-connected disability. In addition, the January 2011 VA examiner did not provide an adequate medical opinion that addresses whether the Veteran’s current bilateral hip disorder is directly related to service. The Veteran’s service treatment records show complained of left hip pain following an injury after hitting a metal pole while playing football. A March 1991 x-ray film of the left hip revealed evidence of os acetabuli, bilateral hips, but no evidence of fracture or dislocation. Post-service April 2011 VA MRI report of the hips continued to show evidence of bilateral os acetabuli as well as findings indicative of impingement syndrome and osteoarthritis. A VA medical opinion is needed on whether the Veteran’s current bilateral hip disorder is directly related to his period of service, to include consideration of March 1991 x-ray evidence of bilateral os acetabuli. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD. He contends that while he was stationed in West Germany, he was subjected to racism and racial abuse from his supervisor. He testified that his lieutenant was discharged from military because of engaging in racism. Since then, the Veteran stated he did not trust the military, even though he had to continue to serve. Service treatment records show in February 1989 the Veteran was referred for a mental health evaluation. It was noted that the Veteran felt paranoid about his unit, and he believed that his unit members were racist, and he could not trust anyone. The examining physician noted that the Veteran was elusive about his problems; however, an impression of paranoia was given, and it was felt the Veteran should be considered for a psychiatric evaluation. Subsequent service treatment records do not show mental health complaints or treatment. Post-service mental health treatment records show the Veteran has been diagnosed with depression and mood disorder. Given the Veteran’s assertions as well as in-service evidence of mental health complaints, the Board finds that a remand is needed to provide the Veteran with a VA psychiatric examination to determine the nature and etiology of his claimed disorder. 4. Entitlement to service connection for asthma is remanded. The Veteran seeks entitlement to service connection for asthma. He contends that his current asthma disorder first manifested during his period of service when he experienced symptoms of shortness of breath. His service treatment records do show he complained of shortness of breath at the time of his separation from service. See August 1991 report of medical history. It is unclear whether the Veteran has a confirmed diagnosis of asthma; however, his VA treatment records show he has been prescribed an inhaler for shortness of breath. In addition, the Veteran has generally asserted that his conditions are due to his Gulf War service. The record indicates that the Veteran is a Persian Gulf veteran and the provisions of 38 C.F.R. § 3.317 are potentially applicable. The Veteran has not yet been afforded with a VA examination in conjunction with his claim. Given the foregoing, the Board finds that a remand is needed to afford the Veteran with a VA examination to determine the nature and etiology of his claimed disorder. 5. Entitlement to service connection for diabetes mellitus is remanded. The Veteran seeks entitlement to service connection for diabetes mellitus. He contends that his diabetes mellitus first manifested during his period of service and he was advised to participate in weight management program. He further reports that he was formally diagnosed with diabetes mellitus shortly after his separation from service. The Veteran’s service treatment records do not show diagnosis of diabetes mellitus. His August 1991 examination prior to separation shows his endocrine system was evaluated as normal and the urinalysis was negative for sugar and albumin. However, the Veteran’s service treatment records do show that he was evaluated as obese and he was required to participate in weight reduction program in 1990. Post-service treatment records show that he was diagnosed with diabetes mellitus December 1993. Given the Veteran’s assertions and evidence of obesity during service as well as formal diagnosis two years after separation from service, a VA medical opinion is needed on whether the Veteran’s diabetes mellitus had an onset during service or is otherwise related to his period of service. 6. Entitlement to service connection for residuals of cerebral vascular accident (stroke) is remanded. 7. Entitlement to service connection for hypertension is remanded. 8. Entitlement to service connection for a liver disorder is remanded. 9. Entitlement to service connection for peripheral neuropathy in the bilateral lower extremities associated with diabetes mellitus is remanded. 10. Entitlement to service connection for peripheral neuropathy in the bilateral upper extremities associated with diabetes mellitus 11. Entitlement to service connection for bilateral eye disorder, to include glaucoma, associated with diabetes mellitus A review of the evidence record indicates that the Vetearn’s hypertension, residuals of stroke, liver disorder, peripheral neuropathy, and eye disorders may be associated with his diabetes mellitus. Since a decision on the issue of entitlement to service connection for diabetes mellitus could significantly impact a decision on the issues of entitlement to service connection for hypertension, residuals of stroke, liver disorder, peripheral neuropathy, and eye disorders, the issues are inextricably intertwined. A remand of the claims for hypertension, residuals of stroke, liver disorder, peripheral neuropathy, and eye disorders are required. The matters are REMANDED for the following action: 1. Undertake all necessary actions to attempt to verify the Veteran’s service in the Southwest Asia theater of operations during the Persian Gulf War. 2. Obtain a VA opinion regarding the Veteran’s right hip and left hip disorders on the following: (a.) Whether it is at least as likely as not the Veteran’s bilateral hip disorder had an onset during service or otherwise related to his period of service? In doing so, the VA examiner is asks to comment on in-service March 1991 x-ray evidence of os acetabuli, bilateral hips. (b.) Whether it is at least as likely as not the Veteran’s bilateral hip disorder is at least as likely as not proximately aggravated by a service-connected disability. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) For any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include in-service mental health complaints. 4. Schedule the Veteran for an examination to determine the nature and etiology of any respiratory disorder manifested by shortness of breath, to include consideration as whether it is due to an undiagnosed illness or medically unexplained chronic multi symptom illness. The examiner should opine as to whether it is “at least as likely as not” that any respiratory disorder diagnosed on examination is related to the Veteran’s active service on a direct basis. 5. Obtain a VA opinion from regarding whether the Veteran’s diabetes mellitus at least as likely as not had an onset during his period of service or is otherwise related to his period of service, to include assessment of obesity and participation in weight reduction program. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.