Citation Nr: 21004810 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-44 227 DATE: January 28, 2021 ORDER New and material evidence has been received to reopen the previously denied claim for service connection for a duodenal ulcer, to that extent only, the appeal of this claim is granted. Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. Service connection for a lumbar spine disability is denied. Service connection for neuropathy of the right lower leg is denied. Service connection for neuropathy of the left lower leg is denied. Service connection for a cervical spine disability is denied. Service connection for neuropathy of the right upper arm is denied. Service connection for a right ankle disability is denied. Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. Service connection for bilateral shin splints is denied. REMANDED Service connection for a duodenal ulcer is remanded. FINDINGS OF FACT 1. The claim for service connection for duodenal ulcer was previously considered and denied in a June 1972 rating decision. The Veteran did not appeal that decision. 2. But evidence added to the file since that June 1972 denial is not cumulative or redundant of the evidence considered in that prior decision and raises a reasonable possibility of substantiating this claim of entitlement to service connection for a duodenal ulcer. 3. The Veteran’s right and left knee disabilities are as likely as not related or attributable to his service. 4. However, conversely, his lumbar spine disability, neuropathy of the right lower leg, neuropathy of the left lower leg, cervical spine disability, neuropathy of the right upper arm, right ankle disability, left shoulder disability, right shoulder disability, and bilateral shin splints are not etiologically related to his service. CONCLUSIONS OF LAW 1. The June 1972 rating decision that previously considered and denied service connection for a duodenal ulcer is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103. 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for entitlement to service connection for his right and left knee disabilities. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. However, the criteria are not met for entitlement to service connection for a lumbar spine disability, neuropathy of the right lower leg, neuropathy of the left lower leg, cervical spine disability, neuropathy of the right upper arm, right ankle disability, left shoulder disability, right shoulder disability, and bilateral shin splints. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1969 to November 1969. New & Material Evidence 1. New and material evidence has been received to reopen the previously denied claim for service connection for a duodenal ulcer; to that extent only, the appeal of this claim is granted. The regional office (RO) previously considered and denied the Veteran’s claim of entitlement to service connection for a duodenal ulcer in June 1972. He did not appeal that decision, so it is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim of entitlement to service connection may be reopened, however, if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed – unless the allegation is beyond the competence of the person making it or inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Because the prior June 1972 decision is the last final and binding denial of this claim, it marks the “starting point” for determining whether there is the required new and material evidence since that decision to reopen this claim. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (indicating to review for newness and materiality all evidence submitted or otherwise obtained since the last final and binding denial of the claim, irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). The claim was denied in June 1972 on the basis that the condition had pre-existed the Veteran’s service and was not permanently aggravated by his service. His service treatment records (STRs) showed that he had been released from service after just 4 or so months due to his ulcer and the finding that he had not met the physical enlistment standards on induction and that his enlistment consequently was erroneous. At that time of the June 1972 rating decision, the Veteran had not provided any contentions related to his claim for service connection. But, since then, he has provided statements explaining how his service aggravated his ulcer disability. He contends that he had a reaction to the type of food that was served, and the grease that it was cooked in, while in service. He also states that his service aggravated his nervous disorder – which, in turn, also affected his ulcer.   He contends that, not long after his separation from service, he underwent gastrointestinal surgery in 1971. Given these more recent contentions, as well as the indication that he was experiencing ulcer symptoms while in service, the Board finds that new and material evidence has been received such that this claim for his ulcer disability is reopened and the duty to assist triggered. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Service connection for a right knee disability is granted. 3. Service connection for a left knee disability is granted. There is probative (meaning competent and credible) medical evidence supporting the grant of service connection for the Veteran’s right and left knee disabilities. Specifically, in September 2020, his treating VA physician submitted a supporting medical nexus opinion stating that it is at least as likely as not these disabilities are related to the wear and tear on the Veteran’s knees during his time in service, including the running, jumping, forced crawling, and falling to his knees required during basic training and advanced individual training. This opinion is probative because this commenting physician has been treating the Veteran for his knee disabilities for over six years and is familiar with both the clinical history of his knee disabilities and his experiences in service. There is no “treating physician rule” requiring the Board to give deference to this physician's opinion. Both the Federal Circuit Court and Veterans Court (CAVC) have specifically declined to adopt a “treating physician rule” that would give preference to statements from a treating physician. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). But that said, there is no other medical opinion of record tending to refute or contradict this supporting medical opinion. Accordingly, given the positive evidence of record, as well as the Veteran’s lay testimony, the Board finds that service connection for his right and left knee disabilities is warranted – especially since, based on the evidence in the file concerning these claims, it is as likely as not (at minimum), if not more likely, these disabilities are attributable to the type of physical activity mentioned that occurred during his service. 4. Service connection for a lumbar spine disability is denied. 5. Service connection for neuropathy of the right lower leg is denied. 6. Service connection for neuropathy of the left lower leg is denied. 7. Service connection for a cervical spine disability is denied. 8. Service connection for neuropathy of the right upper arm is denied. 9. Service connection for a right ankle disability is denied. 10. Service connection for a left shoulder disability is denied. 11. Service connection for a right shoulder disability is denied. 12. Service connection for bilateral shin splints is denied. The Board contrarily finds that the preponderance of the evidence is against relating the Veteran’s lumbar spine disability, neuropathy of the right lower leg, neuropathy of the left lower leg, cervical spine disability, neuropathy of the right upper arm, right ankle disability, left shoulder disability, right shoulder disability, and bilateral shin splints to his service. The Veteran’s STRs do not reflect any injury or diagnosis of any of these conditions while he was in service. On entrance into service, the Veteran reported that he had hurt his back two years previously and that he also had occasional leg cramps. However, a back or leg abnormality or disability was not found on examination. There was no indication that he was experiencing those symptoms at the time of his entry into service. The Board consequently finds that he was in sound physical health when entering service (at least as concerning these now claimed conditions). Thus, the presumption of soundness has not been rebutted. See 38 C.F.R. § 3.304(b)(1). Therefore, the question becomes whether any of these disabilities originated during his service or are otherwise related or attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). If any of these claimed disabilities involve arthritis or another condition that VA considers “chronic”, per se, then the Veteran also may show they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of his discharge from service to, in turn, alternatively warrant presuming they were incurred during his service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). However, the remainder of the Veteran’s STRs do not contain any mention of complaints referable to his lumbar spine, cervical spine, right upper extremity or lower extremities, shoulders, right ankle, or shins. Moreover, there is a lack of indication of a continuity of symptoms since his service owing to these now claimed disabilities. 38 C.F.R. § 3.303(b). In that regard, he has not contended that he has suffered from these disabilities, or symptoms of them, continuously since his service. He, instead, has provided a broader statement that he suffered from trauma related to exercises in basic training, but he has not linked that trauma to any of these disabilities with any specificity. Likewise, there are no treatment records documenting ongoing symptoms since his service. Rather, the available treatment records concern “intercurrent” injuries that occurred many decades later, such as when he underwent lumbar spine surgery in 2007, when he injured his right shoulder in 2010, and when he hurt his left shoulder in 2014. These records do not document the existence of a longstanding injury or relation of the current disabilities to his service, instead, are a by-product of intervening events unrelated to his service. There also is no medical nexus opinion relating any of these disabilities to his service. Accordingly, there is no indication of chronic disabilities in service, or within a year of discharge, or continuity of symptoms since service, or a medial nexus opinion relating these disabilities back to the Veteran’s service. Thus, the elements of service connection have not been met, and service connection for lumbar spine disability, neuropathy of the right lower leg, neuropathy of the left lower leg, cervical spine disability, neuropathy of the right upper arm, right ankle disability, left shoulder disability, right shoulder disability, and bilateral shin splints is denied. REASONS FOR REMAND Service connection for a duodenal ulcer is remanded. The Veteran contends that his pre-existing ulcer was permanently aggravated by his service, meaning worsened beyond its natural progression. As already alluded to, his STRs reflect that he reported on June 1969 induction examination that he had an ulcer. However, he was found fit for duty, though it was specifically noted that there was no physician letter received concerning the ulcer. From there, he sought treatment for ongoing symptoms related to his ulcer, mostly a few months later in September 1969. He was ultimately determined to have been unfit for enlistment into service due to his pre-existing ulcer and resultantly was prematurely discharged from service. The Veteran contends that, while in service, the type of food that was served, and the grease that it was cooked in, aggravated his ulcer. He also states that his service aggravated his nervous disorder – which, in turn, also affected his ulcer. He contends that, not long after his separation from service, he underwent gastrointestinal surgery in 1971. The Board consequently finds that a medical opinion should be obtained to assist in determining whether his current ulcer disability was permanently aggravated by his service.   Accordingly, this claim is REMANDED for the following action: Schedule the Veteran for a VA examination for his duodenal ulcer. If a VA examination cannot be accomplished, such as owing to COVID, then obtain a VA opinion based on review of the file. The examiner must review the claims file, in any event, so regardless of whether there is an actual in-person examination. The examiner is asked to provide responses to the following questions: a) did the Veteran’s duodenal ulcer, which predated his service (since noted during his enlistment examination), as likely as not increase in severity during his service? The examiner should consider the Veteran’s contentions that the food served in service, as well as the grease to cook the food, and his nervous disorder, made his ulcer worse.   b) if the Veteran’s duodenal ulcer worsened during his service, was the increase in severity beyond the natural progression of the condition? KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED