Citation Nr: 21003981 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 20-17 417 DATE: January 25, 2021 ORDER New and material evidence has been received that is sufficient to reopen the claim for service connection for hemangiomatous malformation supraclavicular region posterior neck and pharynx. Service connection for hemangiomatous malformation supraclavicular region posterior neck and pharynx is granted. FINDINGS OF FACT 1. In an unappealed and final rating decision, dated in December 2016, the Regional Office (RO) denied a claim for service connection for hemangiomatous malformation supraclavicular region posterior neck and pharynx. 2. The evidence received since the RO’s December 2016 decision, which denied claims for service connection for hemangiomatous malformation supraclavicular region posterior neck and pharynx, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. The Veteran has a preexisting hemangiomatous malformation supraclavicular region posterior neck and pharynx that was aggravated by his service. CONCLUSIONS OF LAW 1. New and material evidence has been received that is sufficient to reopen the claim for service connection for hemangiomatous malformation supraclavicular region posterior neck and pharynx, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a hemangiomatous malformation supraclavicular region posterior neck and pharynx have been met. 38 U.S.C. §§ 1111, 1132, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran and his spouse testified at a hearing before the Board in January 2021. 1. New and material. In May 1955, the Veteran filed a claim for service connection for a hemangioma on the left side of his neck, back of his neck, and throat. See Veteran’s VA Form 8-526, received in May 1955. In August 1955, the RO denied the claim. The RO stated that it had determined that the Veteran’s neck disability was congenital in nature, and that he had undergone corrective surgery during his service. There was no appeal, and the RO’s decision became final. See 38 U.S.C. § 7105(c). The RO subsequently denied several applications to reopen the claim, most recently, in December 2016. In each case, there was no appeal, and the RO’s decisions became final. Id. In this regard, the Veteran submitted a timely notice of disagreement to the RO’s 2011 decision, and in March 2015 a statement of the case was issued. In June 2015, the Veteran submitted an appeal (VA Form 9). However, in February 2016, the RO notified him that his appeal was untimely. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). In September 2018, the Veteran filed to reopen the claim. See Veteran’s claim (VA Form 21-526EZ), received in September 2018. In November 2018, the RO reopened the claim and denied the claim on the merits. The Veteran has appealed. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is new and material. Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran’s claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines new as not previously submitted and material as related 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 phrase raises a reasonable possibility of substantiating the claim is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the United States Court of Appeals for Veterans Claims stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9. VA General Counsel Precedent Opinion has held that service connection may be granted for disease, but not defects, which are congenital, developmental, or familial in origin when the evidence establishes the disorder was incurred in or aggravated by active service. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). Service connection may also be granted for a disability that resulted from a defect which was subject to a superimposed disease or injury during service. Id. Under 38 C.F.R. § 3.306 (b)(1), “The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment . . . will not be considered service connected unless the disease or injury is otherwise aggravated by service.” In Verdon v. Brown, 8 Vet. App. 529 (1996), the Court interpreted 38 C.F.R. § 3.306 (b)(1), and held that, “where a preexisting disability has been medically or surgically treated during service and the usual effects of the treatment have ameliorated the disability so that it is no more disabling than it was at entry into service, the presumption of aggravation does not attach as to that disability,” but that “when a disability has been made worse in one respect and improved in another respect by in-service medical or surgical treatment, the rating schedule should be used to determine if the overall degree of disability has increased during service.” Id. at 538. Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as “noted.” Crowe v. Brown, 7 Vet. App. 238, 245 (1994). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The appellant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003, 69 Fed. Reg. 25,178 (2004); see also Cotant v. Principi, 17 Vet. App. 116 (2003). The most recent and final denial of the claim was in December 2016. Therefore, the Board must determine if new and material evidence has been received since that time. See 38 U.S.C. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). At the time of the RO’s December 2016 decision, the evidence included the Veteran’s discharge (DD Form 214), which noted that he was separated from service due to physical disability, and that his training included individual combat training between May and June of 1954. The Veteran’s service treatment records showed that there were no relevant findings upon entrance into service. See January 1954 entrance examination report. In February 1955, he was noted to have a six-month history of pain and swelling at the left clavicle following being put in a choke hold during self-defense training. The initial impression was subcutaneous hemorrhage, neck and left side of neck, rule out incipient blood dyscrasia. In March 1955, the Veteran underwent an excision of a hemangioma at the left supraclavicular space. A physical evaluation board report (PEB), dated in April 1955, noted that X-rays of the left clavicular region had showed dilation of the distal subclavian vein with a huge vascular mass occupying the left supraclavicular region with dilated communicating vessels. The diagnosis was hemangiomatous malformation, supraclavicular region, posterior neck, and pharynx. The Veteran was unfit for duty due to this condition. The Veteran’s separation examination report, dated in June 1955, noted a history of hemangiomatous malformation of the supraclavicular region of the posterior neck and pharynx with excision of a hematoma at the left neck in 1955, and a four-inch scar at the left clavicle. The PEB indicated that this condition existed prior to service and that it had been aggravated by service, and that it was 10 percent disabling. A statement from V.A., M.D., dated in November 1989, showed that this physician stated that the Veteran had an enlarged venous plexus at the level of the pharynx that possibly extended to the left neck, with a reported history of trauma during service, and that he had been diagnosed with a hemangioma involving the left side of the neck, oral cavity, oral pharynx, nasal pharynx, scalp, and invading into the brain. Dr. V.A. indicated that this condition did not preexist the Veteran’s service, that it was first found following inservice trauma, and that it was related to his service. Private treatment reports from M.M., M.D., and the May Clinic, dated between 1990 and 1994, showed that the Veteran was treated for pain of the left neck region. Treatment included a transfemoral cerebral. angiogram. The Veteran was noted to have a left cerebral hemangioma extending into the neck and supraclavicular area, with multiple phleboliths present throughout the neck, and a venous malformation of the neck. The diagnoses were large left cerebral hemangioma radiating into the left neck and secondary migraine headaches. VA and private treatment records, dated in 1996, and 2010, showed treatment for heart and neurological symptoms. This evidence noted a history of status post-surgical repair of AV malformation in the left side of the neck in the 1950s, with findings of hemangiomas at the mouth, larynx, neck, head, and supraclavicular region. A VA examination report, dated in August 2010, noted a history of a hematoma of the left neck following a judo chop during service, with occasional burning and stinging at the neck, and headaches. The diagnosis was hemangiomatous malformation supraclavicular region posterior neck and pharynx. An associated opinion, dated in November 2010, shows that the examiner stated, “In my medical opinion, the patient’s hemangiomatous malformation of the neck was not aggravated beyond its normal progression of the disease while in the service. This is based on patient’s diagnosis and progression of disease history.” A VA opinion, dated in May 2014, showed that the August 2010 VA examiner revised his opinion, and stated: It is my medical opinion that the patient did have a pre-existing hemangiomatous malformation in the supraclavicular region prior to his military service. The patient did have an injury during a judo incident in 1954. This was significant to require surgery in March 1955. With this specific information, I do believe this condition was aggravated beyond its natural progression. Otherwise, no surgery would have been needed. A VA opinion, dated in February 2015, showed that the examiner stated the following: The Veteran was born with a hemangiomatous malformation as noted by his port wine stain and palpable mass since the time of his birth. This condition was noted in his service treatment records and in his Medical Review Board in 1955, and the Veteran has not rebutted the fact that he was born with a port wine stain and palpable mass in the neck, which is a cutaneous sign of the underlying genetic disease hemangiomatous malformation. The hemangiomatous malformation is an embryonic occurrence and has a natural history consistent with spontaneous bleeding in the teens and early 20’s then again in the 4th and 5th decade of life. The present condition of the Veteran is consistent with his natural history of a hemangiomatous malformation and it was not aggravated beyond its natural progression. The hemangiomatous malformation for VA purposes is a genetic disease as it is capable of change and was present at birth and preexisted his service. It is now known that a port wine stain is a cutaneous sign of underlying hemangiomatous pathology and that Veteran had a port wine stain at birth (with underlying mass) upon entry in the service as noted on his physical exams during his service period and at his Medical Board Review, none of which he rebutted. Although the port wine stain was not noted on his entrance examination or on his separation examination, there was no entry point for a “birth mark” on the examination form. His medical reports during his service time are clear and unequivocal that the port wine stain and underlying vascular mass was present since birth. The port wine stain is a sign of pathology. The port wine stain was noted to be present at birth (with palpable vascular mass) and this was not rebutted by Veteran in 1955 at the time of his Medical Board Review. At the time of the RO’s December 2016 decision, the RO determined that the evidence showed that the Veteran had a congenital condition that had not been aggravated by his service. The evidence received since the RO’s December 2016 decision includes an opinion from J.K., M.D., dated in September 2018, which shows that Dr. J.K. states that the Veteran has a history of a congenital hemangioma/venous malformation at his left neck, with a reported inservice injury followed by surgery (excision). Following separation from service, he is shown to have a lesion that has grown. He reports ongoing pain and weakness of the left arm since service. It is more than likely that his current situation is related to his inservice injuries. He probably has a congenital malformation that was exacerbated by his inservice injury and inservice surgery. This evidence, which was not of record at the time of the December 2016 rating decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. The Board further finds that this evidence is material. The submitted evidence contains current evidence to show that the Veteran has a congenital condition that was subject to a superimposed injury during service, as well as inservice surgery, with ongoing, exacerbated, left arm symptoms since service. The Board therefore finds that the submitted evidence is new and material, and that it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Shade. The claim is therefore reopened. Service connection. In addition to the evidence noted supra, a VA opinion dated in March 2020 is of record. This opinion shows that the diagnoses were congenital hemangiomatous malformation supraclavicular region posterior neck and pharynx, and status post hematoma evacuation. Both diagnoses have a date of “the 1950s.” The examiner concluded that the claimed condition clearly and unmistakably existed prior to service but that it was not aggravated beyond its natural progression by his service. Although a relevant condition was not noted in the Veteran’s entrance examination report, the determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion. Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). In this case, the evidence is sufficient to show that the Veteran has a congenital hemangiomatous malformation at the supraclavicular region of the posterior neck and pharynx that clearly and unmistakably existed prior to active service. Cotant. The next question is whether there is clear and unmistakable evidence that the Veteran’s condition was not aggravated by active duty service. Id. As a congenital defect, the Veteran’s hemangiomatous malformation supraclavicular region posterior neck and pharynx may not normally be service connected. 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted for a disability that resulted from a defect which is subject to a superimposed disease or injury during service. VAOPGCPREC 82-90. In this case, it is clear that the Veteran sustained a superimposed injury to the area of his left clavicle during service, followed by surgery. The Veteran’s April 1955 PEB shows that it was determined that he had a preexisting condition that was aggravated by his service. Following separation from service, there are three medical opinions in favor of the claim, and two medical opinions against the claim. The Board finds that the probative value of the opinions in favor of the claim warrant the conclusion that the requirement that there be clear and unmistakable evidence that the claimed condition was not aggravated by service has not been met. Cotant. Neither of the negative opinions, the most recent of which is dated in March 2020, addresses the Veteran’s reports of increased symptomatology since his inservice trauma and surgery. They do not adequately rule out the possibility that the Veteran’s hemangiomatous malformation supraclavicular region posterior neck and pharynx was aggravated as a result of his inservice trauma and/or surgery. See 38 C.F.R. § 3.306 (b)(1); Verdon; VAOPGCPREC 82-90. Accordingly, the Board finds that there is not clear and unmistakable evidence of record to show that the Veteran’s congenital hemangiomatous malformation supraclavicular region posterior neck and pharynx was not aggravated by his service. The Board therefore finds that service connection is warranted for hemangiomatous malformation supraclavicular region posterior neck and pharynx based on aggravation of a preexisting disability. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.