Citation Nr: 21003399 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-00 234 DATE: January 21, 2021 ORDER New and material evidence having been received, a claim for entitlement to service connection for hypertension is reopened is granted. New and material evidence having been received, a claim for entitlement to service connection for a low back disability is reopened is granted. New and material evidence having been received, a claim for entitlement to service connection for erectile dysfunction (ED) is reopened is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a compensable disability rating for emphysema is remanded. Entitlement to service connection for ED is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hematuria is remanded. Entitlement to service connection for osteoarthritis is remanded. Entitlement to service connection for a disability characterized by hyperlipidemia is remanded. Entitlement to service connection for diabetes mellitus, claimed as abnormal glucose, is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for urinary incontinence is remanded. Entitlement to service connection for benign prostate hypertrophy is remanded. Entitlement to service connection for bilateral hallux valgus is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as major depressive disorder, is remanded. Entitlement to service connection for bilateral trochanteric bursitis is remanded. Entitlement to service connection for varicocele is remanded. Entitlement to service connection for a bilateral foot disability, claimed as scoliosis of the feet with infection and scarring, is remanded. FINDINGS OF FACT 1. Service connection for hypertension was denied in a February 2009 rating decision, which became final; evidence received since that decision relates to a previously unestablished element of the claim. 2. Service connection for a low back disability was denied in a February 2009 rating decision, which became final; evidence received since that decision relates to a previously unestablished element of the claim. 3. Service connection for ED was denied in a February 2009 rating decision, which became final; evidence received since that decision relates to a previously unestablished element of the claim. CONCLUSIONS OF LAW 1. The February 2009 rating decision denying service connection for hypertension is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). 2. The February 2009 rating decision denying service connection for a low back disability is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). 3. The February 2009 rating decision denying service connection for ED is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1968 to April 1970 and from January 1991 to July 1991, with additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In April 2018, the Veteran testified before the undersigned at a hearing in San Juan with respect to his claim for service connection for a cervical spine disability. A transcript of his testimony has been associated with the claims file. In July 2018, the Board remanded the Veteran’s claim for a cervical spine disability for additional development. Following this development, the RO issued a supplemental statement of the case in June 2020. The matter now returns to the Board. In the Board’s July 2018 remand decision, it observed that the Veteran had also recently filed a substantive appeal with respect to 16 other service connection issues but declined to take jurisdiction over those issues, as they had not yet been certified to the Board. Since that time, however, the issues have been certified to the Board. As such, the Board will discuss these issues herein as well. This matter has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). New and Material Evidence Historically, the Veteran’s claims for hypertension, ED, and a low back disability were denied in a February 2009 rating decision, which found that the evidence of record did not establish a nexus, or legal relationship, between his current disabilities and his military service. The rating decision was not appealed, and no new and material evidence was received within one year. As such, the rating decision became final. Generally, a claim that has been denied by an unappealed decision may not thereafter be reopened. 38 U.S.C. § 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decisionmakers, and “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 of record at the time of the last 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Additional evidence received since the prior denial of the claims includes a March 2017 private medical opinion related to various claims, including the Veteran’s claims for hypertension, low back disability, and ED. In that opinion, Dr. C.M.Q. opined that the Veteran’s disabilities were more likely than not a result of his service. The Board has presumed the credibility of this evidence for purposes of determining whether new and material evidence has been received. The evidence is new, as it was not of record at the time of the prior denial. Additionally, the evidence is material, as it relates to the previously unestablished element of whether there is a nexus between the Veteran’s service and his disabilities. As new and material evidence has been received, the claims are reopened. However, as set forth below, additional development is necessary prior to adjudicating the claims on their merits. REASONS FOR REMAND As a threshold matter, the Board notes that the record contains documents that are partially in Spanish. As such, the Board must remand this claim to obtain English language translations. The Board will describe the other reasons for remand in more detail below. Service Connection At the outset, the Board notes that the Veteran reported several years of service with the National Guard, in addition to his service on active duty in the Army, although the record is somewhat unclear regarding the precise nature and duration of his National Guard service. “Active military service” is defined by VA law and regulations to include active duty, any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty, or any period of INACDUTRA when the individual concerned was disabled from an injury incurred in the line of duty. See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). Accordingly, service connection may be granted for disabilities resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injuries incurred or aggravated while performing INACDUTRA. Although copies of the Veteran’s DD Form 214 and service treatment records from his periods of active duty are of record, it appears that there are outstanding service personnel records and service treatment records with respect to his National Guard service. To that end, it does not appear that the RO has attempted to obtain full personnel or medical records from the Veteran’s time in the National Guard. This is significant, as there are no personnel records showing the actual dates of any periods of ACDUTRA or INACDTURA or medical records associated with these timeframes. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This includes obtaining records in the custody of a Federal department or agency and service medical records that are relevant to a claim. 38 C.F.R. § 3.159(c)(2), (3). It is incumbent on VA to ensure that it has a complete record of these periods to determine whether the Veteran’s claimed disabilities resulted from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. On remand, the RO should thus make appropriate efforts to identify all periods of ACDUTRA and INACDUTRA and to obtain any outstanding service treatment records from those periods. 38 C.F.R. § 3.159(c)(1)-(2). Cervical spine At his April 2018 Board hearing, the Veteran testified that he began suffering from neck pain during or shortly after his deployment to Southwest Asia in 1991 and that he was treated for this condition within a year of separating from active duty. As set forth above, the Board previously remanded the Veteran’s claim for service connection for a cervical spine disability to obtain a VA examination with respect to its etiology. VA’s duty to assist claimants in substantiating their claims also includes providing a medical examination when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the record indicates that the RO afforded the Veteran a VA examination with respect to his cervical spine disability in June 2019. In the examination report, the VA examiner opined that his cervical spine disability was less likely as not related to his service. However, the VA examiner did not consider all relevant evidence of record, including the Veteran’s lay statements regarding the nature and etiology of his symptoms. In this regard, although the VA examiner discussed available service treatment records and post-service treatment records, the examiner did not adequately address the Veteran’s lay statements regarding the onset of his neck pain or his continuing symptomatology since his deployment to Southwest Asia in 1991. A medical opinion that does not consider all relevant evidence of record, including lay statements, is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, remand is necessary to obtain an addendum medical opinion that sufficiently considers this evidence. Low back disability, ED, osteoarthritis, hypertension, disability characterized by hyperlipidemia, diabetes mellitus, prostate cancer, benign prostate hypertrophy, urinary incontinence, hematuria, hallux valgus, acquired psychiatric disorder, bilateral trochanteric bursitis, varicocele, and bilateral foot disability The Veteran’s VA treatment records reflect complaints of or treatment for various disabilities, including a low back disability, ED, hypertension, hyperlipidemia, prostate cancer, benign prostate hypertrophy, varicocele, urinary incontinence, hematuria, hallux valgus, mental health conditions, and trochanteric bursitis. His VA treatment records also reflect abnormal glucose levels and, more recently, a diagnosis of diabetes mellitus. Additionally, a March 2017 private medical opinion from Dr. C.M.Q. indicates diagnoses of osteoarthritis in the shoulders, elbows, wrists, hips, knees, ankles, and feet. He has consistently stated that these conditions were incurred in or otherwise related to his active service. Additionally, the Veteran has submitted a private medical opinion from Dr. C.M.Q., which opines that his various disabilities are more likely than not related to his military service. However, Dr. C.M.Q.’s opinion is entitled to little, if any, probative weight, because his opinion is conclusory and not supported by a detailed rationale. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). At this juncture, no VA examinations have been obtained with respect to the Veteran’s other claims for service connection that are on appeal. 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 recurrent 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) (noting that the third 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 active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, as set forth already, there is competent evidence that the Veteran currently has the various conditions that are on appeal. There is also evidence suggesting that he incurred such conditions during his service or that they may be causally linked to his military service. In consideration of the foregoing, the Board finds that remand is also necessary to obtain medical examinations and opinions on the nature and etiology of his claimed disabilities. See McLendon, 20 Vet. App. at 83-86. Additionally, the Board notes that the Veteran has indicated that he was stationed at Fort Gordon, Georgia, during his first period of active duty, and that the Department of Defense has indicated that herbicide agents were used, tested, or stored there during that time. See, e.g., July 2017 VA 21-4138. His available service treatment and personnel records confirm that he was stationed at Fort Gordon during his first period of active service. Although not explicitly argued, the Veteran appears to be suggesting that his disabilities could potentially be connected to herbicide agent exposure. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). For veterans exposed to such herbicide agents, service connection can be presumed for certain diseases, such as prostate cancer and diabetes mellitus, specified at 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii). Here, the records show that the Veteran did not serve in the Republic of Vietnam, nor, for that matter along the demilitarized zone in Korea, nor in Thailand. The Veteran is thus not presumed to have been exposed to an herbicide agent during his active service. However, even if the presumption of herbicide agent exposure does not apply, the Veteran is not precluded from establishing service connection on a direct basis, to include establishing that he was exposed to an herbicide agent and that such exposure caused the claimed disability or disabilities. See Combee v. Brown, 1039, 1043-44 (Fed. Cir. 1994), Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). The evidentiary standard for that proof is that the evidence favorable to the claim outweighs the evidence unfavorable to the claim or the evidence favorable to and unfavorable to the claim are approximately evenly balanced. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, the RO must attempt to verify whether the Veteran was exposed to herbicide agents during his service and, if so, request for opinions with respect to herbicide agent exposure in connection with the VA examinations that are scheduled on remand. Similarly, the Veteran has asserted that his current disabilities are related to exposure to chemicals or environmental hazards in the Persian Gulf, where he served in 1991. To that end, the Board notes that the Veteran is entitled to service connection for emphysema due to exposure to hazardous fumes in Southwest Asia. On examination, the VA examiner must therefore address whether his disabilities are etiologically connected to environmental exposures in Southwest Asia during his second period of active duty service. Last, in his application for compensation, the Veteran claimed entitlement to service connection for various conditions, including “osteoarthritis.” He did not specify the joints for which he was claiming compensation for osteoarthritis. The record indicates that he has been diagnosed with osteoarthritis in various joints, as set forth above. It is unclear whether the Veteran meant to file a claim for osteoarthritis in one of these joints or in an additional joint. On remand, the RO should clarify the scope of the claim for osteoarthritis and determine whether he intended to claim arthritis for a joint that has not already been adjudicated or remanded for readjudication and, if so, take proper steps to develop the claim for adjudication. Increased Rating The Veteran also seeks entitlement to a compensable disability rating for service-connected pulmonary emphysema. Where, as here, the central question is the current level of disability that has already been service-connected, particular attention must be paid to the age of the most recent examination report in the claims file. A new medical examination is required when veterans assert or provide evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes that the Veteran was most recently provided with a VA examination in connection with his emphysema in 2016. Since that time, his VA treatment records indicate that he has begun receiving home pulmonary therapy, indicating that his condition could have worsened since that time. Taking into consideration the five years that have passed since the most recent VA examination in connection with this claim, the Board finds that a contemporaneous medical examination is required to evaluate the current severity of this condition. Accordingly, the matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § § 20.800(c). Expedited handling is requested.) 1. Obtain English translations of the documents in the claims file that include Spanish, to include those with electronic receipt dates of January 3, 1991. 2. Additionally, contact the Veteran and ask him to clarify the scope of his claim and appeal regarding compensation benefits for osteoarthritis. If it was his intent to claim service connection for osteoarthritis in joints for which the Board has not already remanded a claim for readjudication, the RO should develop and adjudicate that issue. 3. Additionally, after obtaining appropriate authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records related to the Veteran’s claims. 4. Additionally, contact the Veteran and ask him to submit any official military reports and/or orders showing the specific dates of his National Guard service, including the specific dates of periods of ACDUTRA or INACDUTRA service, or any other official documentation that might provide such information. After contacting the appropriate service organization, attempt to verify and enumerate all periods of “active military service,” to include relevant confirmed periods of ACDUTRA and INACDUTRA. This enumeration must be clear (noting the month, day, and year) and should consist of more than simply the Veteran’s pay periods or retirement points. Next, attempt to verify that all the Veteran’s service personnel records and service treatment records from any identified period of ACDUTRA or INACDUTRA service are obtained and associated with the claims file. Any negative response must be documented in the claims file, in which case the Veteran and his representative must be notified that these records cannot be located and given an opportunity to respond. 5. Additionally, attempt to verify the Veteran’s asserted in-service exposure to herbicide agents at Fort Gordon, Georgia. The Veteran’s available service treatment and personnel records indicate that he was stationed there during his first period of active duty service. If more details are needed, contact the Veteran to request this additional information. If there is still insufficient information to verify exposure to herbicide agents, issue a formal finding outlining the steps taken to assist the Veteran and notify him of the inability to verify in-service herbicide agent exposure. 6. After the development outlined in steps one through five has been completed, obtain an addendum VA medical opinion from an appropriate examiner with respect to the nature and etiology of the Veteran’s cervical spine disability. After reviewing the whole claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran’s cervical spine disability had its onset during or is otherwise related to active service. This also includes an opinion on whether the disability resulted from (1) a disease or injury incurred or aggravated during ACDUTRA, or from an injury incurred or aggravated during INACDUTRA, or (2) exposure to environmental hazards while deployed to Southwest Asia in 1991. A complete rationale for any opinions must be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner is asked to address the Veteran’s lay statements, including his April 2018 testimony, regarding his cervical spine disability. If the examiner is unable to provide an addendum opinion without performing a physical examination of the Veteran, a new examination should be scheduled to assess the etiology, onset, nature, and severity of the Veteran’s cervical spine disability. 7. After the development outlined in steps one through five has been completed, obtain a new VA medical examination(s) with an appropriate examiner(s) with respect to the nature and etiology of his other claims for entitlement to service connection that are being remanded herein. After reviewing the claims file in its entirety, the examiner(s) is asked to do the following with respect to each claimed disability: (a.) Identify any relevant diagnosable conditions that have been present at the time the claim was filed or at any point during the pendency of this appeal. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its onset during or is otherwise related to active service. This also includes an opinion on whether the disability resulted from (1) a disease or injury incurred or aggravated during ACDUTRA, or from an injury incurred or aggravated during INACDUTRA, or (2) exposure to environmental hazards while deployed to Southwest Asia in 1991. (c.) If the Veteran’s claimed exposure to herbicide agents is verified, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is etiologically related to in-service herbicide agent exposure. A complete rationale for these opinions must be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner(s) is asked to address the Veteran’s lay statements, as well as other relevant evidence submitted by the Veteran, such as the March 2017 private medical opinion from Dr. C.M.Q. 8. After the development outlined in steps one through five has been completed, obtain a new VA medical examination with an appropriate examiner to evaluate the current severity of the Veteran’s pulmonary emphysema. If the evidence indicates that the severity of the Veteran’s disability has changed over time, the examiner must specifically state such and, to the extent possible, indicate the approximate level(s) of severity previously indicated and the approximate dates of change in severity. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.