Citation Nr: 21066084 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-14 342 DATE: October 28, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for anemia is reopened. New and material evidence having been presented, the claim of entitlement to service connection for migraine headaches is reopened. New and material evidence having been presented, the claim of entitlement to service connection for right immersion foot is reopened. New and material evidence having been presented, the claim of entitlement to service connection for left immersion foot is reopened. Service connection for right immersion foot is granted. Service connection for left immersion foot is granted. REMANDED The issue of entitlement to service connection for anemia is remanded. The issue of entitlement to service connection for night sweats is remanded. The issue of entitlement to service connection for migraine headaches is remanded. The issue of entitlement to a gastrointestinal disorder, to include irritable bowel syndrome (IBS), is remanded. The issue of entitlement to carpal tunnel syndrome of the right upper extremity is remanded. The issue of entitlement to carpal tunnel syndrome of the left upper extremity is remanded. The issue of entitlement to obstructive sleep apnea is remanded. The issue of entitlement to service connection for residuals of a nose fracture is remanded. The issue of entitlement to service connection for a respiratory condition, to include bronchitis, is remanded. The issue of entitlement to service connection for left side pain and tightness is remanded. The issue of entitlement to service connection for a right knee disability is remanded. The issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to service connection for a right hand disability is remanded. The issue of entitlement to service connection for a left hand disability is remanded. The issue of entitlement to service connection for blurred vision is remanded. FINDINGS OF FACT 1. A November 1969 rating decision denied service connection for anemia. The decision was not appealed, and no new and material evidence was submitted within one year of the decision; the decision became final. 2. Some of the evidence received since the November 1969 denial of service connection for anemia relates to unestablished facts necessary to substantiate the claim. 3. A May 2013 rating decision denied service connection for migraine headaches and bilateral immersion feet. The decision was not appealed, and no new and material evidence was submitted within one year of the decision; the decision became final. 4. Some of the evidence received since the May 2013 denial of service connection for migraine headaches and bilateral immersion feet relates to unestablished facts necessary to substantiate the claim. 5. The Veteran's bilateral immersion feet are etiologically related to service. CONCLUSIONS OF LAW 1. The November 1969 rating decision that denied the claim of entitlement to service connection for anemia is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been submitted, and the claim of entitlement to service connection for anemia is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The May 2013 rating decision that denied the claim of entitlement to service connection for migraine headaches and bilateral immersion feet is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 4. New and material evidence has been submitted, and the claims of entitlement to service connection for migraine headaches and bilateral immersion feet are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for bilateral immersion feet are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to March 1969. These matters come before the Board of Veterans' Appeal (Board) on appeal from a March 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Pursuant to 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. Here, in a November 1969 rating decision, the RO denied the Veteran's claim for service connection for anemia. The Veteran did not appeal that decision, and new and material evidence was not received by VA within one year of the March 1969 rating decision. As such, it became final. In a May 2013 rating decision, the RO denied the Veteran's claim for service connection for migraine headaches and bilateral immersion feet. The Veteran did not appeal that decision, and new and material evidence was not received by VA within one year of the May 2013 rating decision. As such, it became final. The Board finds that new and material evidence has been received regarding the claims of anemia, migraine headaches, and bilateral immersion feet, such that they are reopened, and the Board may proceed with an adjudication of the underlying service connection claims on their merits. In a January 2021 rating decision, the RO granted service connection for type 2 diabetes mellitus with an evaluation of 20 percent, effective May 26, 2020. As the Veteran has not appealed either the assigned disability rating or effective date of service connection, the Board finds that these grants of service connection constitute a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has consistently stated throughout the appeal period that he developed a condition referred to as either trench foot or immersion foot while serving in Vietnam. At a VA foot examination in December 2012, the Veteran endorsed bilateral foot pain which he attributed to having his feet immersed in monsoon water for about 24 hours while running in rice paddies during active duty. The VA examiner diagnosed the Veteran with degenerative disease of the bilateral feet. In rendering a negative nexus opinion, the VA examiner reasoned that the Veteran's immersion foot was treated and resolved in service and that service treatment records are absent for continued treatment of a chronic foot condition. The examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." The opinion is, therefore, inadequate and is of no probative value. However, service treatment records dated from August 1968 to October 1968 document treatment for primary immersion foot. At the Board hearing, the Veteran endorsed treatment with lanolin while in Danang for bilateral immersion foot. He stated that since service he has had symptoms similar to athlete's foot in between his toes, including scaling and peeling of the skin. He endorsed sweaty feet that resulted in changing his socks three to four times per day. The Veteran is competent to report on his observed symptoms and on the circumstances of his injuries during and after service. His service treatment records document treatment for immersion foot and, therefore, support his assertions. He has consistently and credibly reported that he has experienced sweaty feet, and scaling and peeling of the skin on his feet since service and further described the chronic nature of his symptoms. Accordingly, the Board finds that the Veteran's reports of bilateral immersion feet symptoms and symptoms thereafter both competent and credible. There is no probative evidence to contradict the Veteran's assertions. Resolving doubt in favor of the Veteran, service connection for bilateral immersion feet is granted. 38 U.S.C. §§ 1110, 5107. REASONS FOR REMAND 1. Anemia 2. Night Sweats The Veteran was afforded VA examination for malaria in May 2001. At that time, the Veteran endorsed a post-discharge diagnosis of anemia following treatment for malaria in service and frequent night sweats since that time. He asserted that his anemia and night sweats are due to his service-connected malaria. The May 2001 VA examiner found no objective evidence of recurrent malaria infection but did not address the Veteran's reports of anemia or night sweats. In conjunction with his claim for service connection for anemia, the Veteran was afforded a VA examination in December 2012. The Veteran reported that he may have the sickle cell trait but that he believed his anemia was due to malaria. The VA examiner diagnosed the Veteran with anemia but did not address whether the Veteran had a valid diagnosis of sickle cell trait or sickle cell disease. The VA examiner opined that the Veteran's sickle cell traits were not caused or aggravated by the Veteran's in-service malaria. The VA examiner noted that the Veteran's malaria medication in service had a side effect of acute hemolytic anemia due to hereditary G6PD deficiency. The VA examiner noted that the Veteran's hereditary sickle cell trait was an incidental finding and wholly different from acute hemolytic anemia. The VA examiner, however, did not address whether the Veteran's current diagnosis of anemia was caused or aggravated by his in-service malaria nor has any opinion regarding the Veteran's night sweats has been provided. At the Board hearing, the Veteran testified that he had never been diagnosed with sickle cell trait nor does he have a family history of that trait. Based on the foregoing deficiencies, the Board finds that the VA examiner's opinions are inadequate, and another opinion is necessary prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 3. Migraine Headaches The Veteran contends that service connection for headaches is warranted. Although the Veteran reported a history of infrequent headaches at his January 1968 entrance examination, the Veteran had a six-day history of headaches following a bout of malaria in October 1968. In rendering a negative nexus opinion, the VA examiner provided a conclusory and circular rationale and did not address the Veteran's headache history following his illness of malaria. Based on the foregoing deficiencies, the Board finds that the VA examiner's opinion is inadequate, and another opinion is necessary prior to adjudication of the claim. Id. 4. A Gastrointestinal Disorder, to include Irritable Bowel Syndrome 5. Bilateral Carpal Tunnel Syndrome 6. Bilateral Hands and Knees At the Board hearing, the Veteran reported that he had dysentery in service when he was stationed in the Republic of Vietnam. The Veteran endorsed symptoms of a gastrointestinal disorder since that time. The Veteran also asserted that he had bilateral carpal tunnel syndrome that he attributed to firing guns in service. The Veteran endorsed an in-service ganglion of his right hand and that he also used his hand and wrist frequently as a radio operator during service. The Veteran also reported that he had osteoarthritis of his bilateral hands and knees which he attributed to combat in the Republic of Vietnam. Specifically, the Veteran noted that he carried a lot of weight on his back, including a radio, backpack and ammunition when marching and doing duck crawls through rice paddies and jungles. He also stated that he had to perform 1000 squat thrusts as punishment during bootcamp which also affected his hands and knees. The Veteran also endorsed knee pain since service. The Veteran has not yet been afforded a VA examination in connection with his service connection claims for a gastrointestinal disorder, bilateral hands and knees, and bilateral carpal tunnel syndrome. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran's reports attributing a gastrointestinal disorder, pain in his bilateral hands and knees, and bilateral carpal tunnel syndrome to service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded VA examinations and opinions prior to adjudication of the claims. See McLendon, 20 Vet. App. 79, 81 (2006). 7. Residuals of Nose Fracture. 8. Sleep Apnea 9. A Respiratory Condition, to include Bronchitis. 10. Left side pain and tightness. At the Board hearing, the Veteran endorsed difficulty breathing and a nose polyp due to a nose fracture in service. The Veteran also attributed his sleep apnea to his broken nose in bootcamp. Service treatment records document a nose fracture in March 1968. The Veteran also reported that he continues to experience left side pain and tightness after he was kicked by a drill sergeant in bootcamp. The Veteran endorsed heavy snoring during and since service following the nose fracture. The Veteran also stated that he would wake up gasping for air during active duty. The Veteran alternatively contends that his sleep apnea is caused or aggravated by service-connected diabetes mellitus. The Veteran endorsed chronic bronchitis since service, due to the effects of Agent Orange exposure. Given the Veteran's reports attributing these conditions to service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded VA examinations and opinions prior to adjudication of the claims. See McLendon, 20 Vet. App. 79, 81 (2006). 11. Blurred Vision. The Veteran has endorsed blurred vision that is associated with his migraine headaches. Alternatively, he contends that the blurred vision may be related to his service-connected diabetes mellitus. Given the Veteran's reports attributing these conditions to service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded VA examinations and opinions prior to adjudication of the claim. See McLendon, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his anemia and might sweats. The examiner should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the examiner. Thereafter, the examiner should address the following: (a.) Whether the Veteran has a hereditary sickle cell trait to which current anemia can medically be attributed. (b.) Is it at least as likely as not (50 percent probability or more) that the Veteran's anemia and night sweats had their onset in, were caused by, or are otherwise related to service? The examiner must address the Veteran's contention that his anemia and night sweats were caused or aggravated by his in-service illness of malaria. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his migraine headaches. The examiner should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the examiner. Thereafter, the examiner should address the following: (a.) Is it medically undebatable that the Veteran's current headaches are related to the headaches he reported experiencing prior to service? In answering this question, the examiner must address the Veteran's contention that the headaches he experienced in service and continues to experience to this day are different than the ones he experienced prior to active duty. (b.) If you determine that the current headaches are related to those he experienced prior to service, is it at least as likely as not (50 percent probability or more) that the headaches were aggravated in service? (c.) If it is not medically undebatable that the Veteran's current headaches are related to the headaches he reported experiencing prior to service, is it at least as likely as not (50 percent probability or greater) that the Veteran developed a chronic headache disorder in service, or that the headaches are otherwise related to service? 3. Schedule the Veteran for VA examinations for his claimed a gastrointestinal disorder to include IBS, bilateral carpal tunnel syndrome, obstructive sleep apnea, residuals of nose fracture, a respiratory condition to include bronchitis, left side pain and tightness, bilateral knee osteoarthritis, bilateral hand osteoarthritis, and blurred vision. The claims folder, including a copy of this Remand, must be reviewed in conjunction with the examination. For each disability, the examiner must opine as to whether it is at least as likely as not any currently diagnosed disability, if any, was caused or aggravated by active service, to include as due to any service-connected disability. The examiner must address the Veteran's contentions highlighted in this Remand. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.