Citation Nr: 21063711 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-20 653 DATE: October 15, 2021 ORDER As new and material evidence has been received, the petition to reopen the claim for service connection for a low back disability is granted. As new and material evidence has been received, the petition to reopen the claim for service connection for diabetes is granted. Service connection for an eye disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for a left lower extremity disability is remanded. Entitlement to service connection for a right lower extremity disability is remanded. FINDINGS OF FACT 1. The evidence received on June 4, 2021, in the form of lay testimony, was new, because it had not been previously associated with the claims file, and material, because it was lay evidence of an in-service occurrence and continued symptomatology regarding the low back disability and diabetes issues. 2. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of an eye disability, to include functional impairment. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of service connection for a low back disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the previously denied claim of service connection for diabetes are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for an eye disability are not met. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to December 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The record was held open for 90 days for additional evidence to be submitted. However, the record does not show that additional evidence was submitted. 1. New and material evidence to reopen the claim for service connection for a low back disability. 2. New and material evidence to reopen the claim for service connection for diabetes. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. Regarding the Veteran's low back disability, the Veteran initially filed his claim in September 1996. A May 1997 rating decision denied his claim. It noted that the Veteran's medical treatment records failed to establish a current diagnosis. An appeal was not taken and new and material evidence was not received within a year of that rating decision. As such, the May 1997 rating decision became final. Subsequently, in May 2013 the Veteran filed another claim for a back disability. An April 2014 rating decision denied his claim for lack of new and material evidence. After that, in June 2014 the Veteran filed another claim for a back disability. A September 2014 rating decision found that new and material evidence was filed to reopen the claim; however, it denied his claim as the record did not show a link between the Veteran's post-service diagnosed disability and military service. An appeal was not filed and . As such, the September 2014 rating decision became final. Subsequently, in April 2016 the Veteran filed another claim for a back disability. A November 2016 rating decision denied his claim for lack of new and material evidence. An appeal was not filed. As such the November 2016 rating decision became final. 38 U.S.C. § 7104. Regarding the Veteran's diabetes disability, the Veteran initially filed his claim in June 2014. A September 2014 rating decision denied his claim. It noted that the Veteran's medical treatment records failed to establish a diagnosis of diabetes. An appeal was not timely filed and new and material evidence was not received within a year of this decision. As such, the September 2014 rating decision became final. 38 U.S.C. § 7104. The current appeals began when the Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation) in May 2017. Since at that time his decision was final, he needed to submit new and material evidence to reopen the claims. The Board finds that the Veteran submitted new and material evidence to reopen his claims for a low back disability and diabetes in the form of lay testimony evidence in June 2021. Regarding the Veteran's low back disability, he testified that during an obstacle course in-service, he fell from a pole and injured his back. Additionally, the same fall injured his hip as well, which is currently service connected. Further, he testified that his back started to hurt and he sought treatment within one year after discharge. See 6/4/2021 Hearing Transcript, at pages 3 and 8. Regarding the Veteran's diabetes, he testified that his diabetes was due to eating sugary foods and to a changing lifestyle due to his low back disability. See 6/4/2021 Hearing Transcript, at page 14. Regarding his low back and diabetes disabilities, this evidence is new because it was not previously associated with the claims file, and material, because it tends to support the Veteran's contention of a service event and a link between the Veteran's diagnosed disabilities and service, the basis of his previous denials in September 2014 for the claim for diabetes and November 2016 for the claim for a low back disability. 3. Service connection for an eye disability. Service connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran contends service connection is warranted for an eye disability. Specifically, during the Board hearing, the Veteran testified that he is losing his eyesight due to his diabetes and hitting his head when he fell from the pole in service. See 6/4/2021 Hearing Transcript, at page 18 and 19. Here, the Veteran's treatment records lack a diagnosis of an eye disability. For example, post-service records show no complains of an eye disability and no indication of any symptoms that functionally impair the Veteran's earning capacity. For example, a November 2016 VA optometry record reflects an eye examination. The assessment was diabetes mellitus without retinopathy, both eyes. The assessment did include myopia and presbyopia; however, these are not disabilities for which service can be awarded as they are refractive errors. 38 C.F.R. § 3.303(c). Accordingly, the Board finds that the preponderance of the record weighs against a finding that the Veteran has a current diagnosis of an eye disability. The Board acknowledges the Veteran's reports that he is losing his eyesight due to his diabetes and hitting his head when he fell from the pole in-service. He is competent to describe such observable symptoms. However, as a lay person without medical training or expertise, he is not competent to say that he has an eye disability, a complex medical issue concerning the body's organs of special sense that does not lend itself to lay opinion. The Veteran has not been shown to have the knowledge, and/or expertise necessary to diagnose such complex medical issues. Therefore, the Veteran's statements that he has an eye disability are not considered competent evidence demonstrating a current disability and lack weight. See Jandreau, 492 F.3d at 1377. Thus, based on the evidence above, the Board finds that, while the Veteran asserts that he has a current diagnosis of an eye disability, the more probative evidence weighs against finding that the Veteran either has a current diagnosis of an eye disability, or that such a diagnosis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection claims require that the Veteran have a current disability. 38 U.S.C. § 1131. The claimant satisfies the current disability requirement when the claimant has a disability proximate to the filing of a claim for VA benefits or has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). For the reasons explained above, this has not been met here. The preponderance of the evidence weighs against finding that the Veteran has an eye disability; therefore, the service connection claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a low back disability. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service treatment records showed that the Veteran fell during an in-service training exercise at the obstacle course in Ft. Knox, Kentucky and injured his hip. See 9/4/2013 STR Medical Photocopy. Additionally, the injury was considered to have been incurred in the Line of Duty. See 9/4/2013 Third Party Correspondence. Post-service diagnostic imaging shows that the Veteran has mild to moderate multilevel lumbar spondylosis associated with levels of canal and foraminal stenosis. See 4/26/2016 CAPRI, at pages 119 and 180. Regarding the in-service incident, at the Board hearing, the Veteran testified that the same fall that injured his hip, which is currently service connected, injured his back as well. Additionally, he testified that his back started to hurt and he sought treatment within one year after discharge. See 6/4/2021 Hearing Transcript, at pages 3 and 8. The September 1996 VA examination report relied on the result of a lumbar spine magnetic resonance imaging, which showed normal results, to conclude that the Veteran had no diagnosis of a back disability. See 9/24/1996 VA Examination. However, the Board finds this examination inadequate because it does not show adequate consideration of all relevant evidence, to include the post-service diagnostic imaging, which showed multilevel lumbar spondylosis/stenosis. Additionally, the examination did not consider the Veteran's lay testimony that the same fall that injured his right hip, which is currently service connected, injured his back as well. Additionally, he testified that his back started to hurt and he sought treatment within one year after discharge. Furthermore, at the Board hearing, the Veteran and his authorized representative identified relevant outstanding medical treatment records. The Veteran testified that after his in-service fall, he was treated at Ireland Army hospital in Ft. Knox, Kentucky. See 6/4/2021 Hearing Transcript, at page 4. Therefore, on remand, the Veteran's in-service treatment records must be associated with the claims file and the Veteran should also be allowed the opportunity to provide additional authorization for VA to obtain any missing treatment records. As such, the Board finds that a remand is necessary to afford the Veteran with a VA thoracolumbar spine examination to determine the nature and etiology of his low back disability and address any relationship to service. 2. Service connection for diabetes. 3. Service connection for a left lower extremity disability. 4. Service connection for a right lower extremity disability. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. Regarding the Veteran's diabetes, post-service treatment records showed that the Veteran was diagnosed with diabetes. See 4/26/2016 CAPRI, at page 372. Regarding the Veteran's bilateral lower extremity disabilities, post-service treatment records showed that the Veteran was diagnosed with moderate bilateral median nerve focal neuropathy, via the result of electrodiagnostic testing. See 7/28/2016 CAPRI, at page 547. The Board finds that the Veteran's diabetes and bilateral lower extremity disabilities claims are inextricably intertwined with his pending service connection claims for a low back disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact' upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). During the Board hearing, the Veteran testified that his diabetes was due to eating sugary foods and to a changing lifestyle due to his low back disability. See 6/4/2021 Hearing Transcript, at page 14. Additionally, the Veteran testified that his bilateral lower extremity disabilities are due to his low back disability and/or his diabetes disability. See 6/4/2021 Hearing Transcript, at page 15 and 16. Therefore, the adjudication of the Veteran's claims for service connection for diabetes and bilateral lower extremity disabilities is deferred pending adjudication of the Veteran's service connection claim for a low back disability. Furthermore, on remand, the AOJ must afford the Veteran VA examinations to determine the nature and etiology of his diabetes and bilateral lower extremity disabilities and address any relationship to service. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding VA records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. Request the Veteran's in-service hospitalization records from the Ireland Army hospital in Fort Knox, Kentucky. If the records are unavailable, inform the Veteran of this so that he can attempt to obtain those records on his own behalf. 3. After completing directives # 1 and 2, schedule the Veteran for a VA thoracolumbar examination by an appropriate clinician to determine the nature and etiology of his low back disability. The clinician is to review the virtual file, including a copy of this Remand. After a review of the claims file, the examiner is to specifically address: Whether it is at least as likely as not (approximately 50 percent or greater probability) that the Veteran's current low back disability is related to an in-service injury, event, or disease. **The examiner must address the Veteran's contentions that the same fall that injured his right hip, which is currently service connected, injured his back as well. Additionally, he testified that his back started to hurt and he sought treatment within one year after discharge. See 6/4/2021 Hearing Transcript, at pages 3 and 8.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing directives # 1 and 2, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his diabetes and bilateral lower extremity disabilities. The clinician is to review the virtual file, including a copy of this Remand. After a review of the claims file, the examiner is to specifically address: (a.) Whether it is at least as likely as not (approximately 50 percent or greater probability) that the Veteran's diabetes disability is related to an in-service injury, event, or disease. Additionally, the examiner is asked to address the Veteran's contentions that his diabetes was due to eating sugary foods and to a changing lifestyle due to his low back disability. See 6/4/2021 Hearing Transcript, at page 14. (b.) Whether it is at least as likely as not (approximately 50 percent or greater probability) that the Veteran's bilateral lower extremity disabilities, to include moderate bilateral median nerve focal neuropathy, are related to an in-service injury, event, or disease. The examiner is to address the Veteran's contentions that his bilateral lower extremity disabilities are due to his low back disability and/or his diabetes disability. See 6/4/2021 Hearing Transcript, at page 15 and 16. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.