Citation Nr: 21067153 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-63 610 DATE: November 3, 2021 ORDER 1. The appeal to reopen a claim of service connection for type 2 diabetes mellitus is denied. 2. The appeal to reopen a claim of service connection for an eye disability (claimed as secondary to diabetes), is denied. REMANDED 3. Entitlement to service connection for a rectum disability (claimed as carcinoma of distal rectum), to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. An unappealed May 2011 rating decision denied service connection for type 2 diabetes finding that the Veteran did not have a diagnosis of such disability. 2. Pertinent evidence received since the May 2011 rating does show or suggest that the Veteran has type 2 diabetes mellitus; does not relate to the threshold critical unestablished fact necessary to substantiate the claim of service connection for type 2 diabetes mellitus; and does not raise a reasonable possibility of substantiating such claim. 3. An unappealed February 2010 rating decision denied service connection for an eye disability, finding essentially such disability was not shown to be related to the Veteran's service. 4. Evidence received since the February 2010 rating is cumulative or does not tend to show that an eye disability is related to the Veteran's service (and the raised secondary (to diabetes) service connection theory of entitlement lacks legal merit); does not relate to an unestablished fact necessary to substantiate the claim of service connection for an eye disability; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for type 2 diabetes mellitus may not be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a). 2. New and material evidence has not been received, and the claim of service connection for an eye disability may not be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1965 to November 1967, including in combat in Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2013 and February 2018 rating decisions. In June 2019, this case was remanded for further development. [A June 2020 rating decision granted a total disability rating based on individual unemployability (TDIU). Accordingly, that matter is resolved, and no longer on appeal. In August 2020, the Veteran's representative withdrew from representation of the Veteran. He was so advised, and also afforded opportunity to appoint another representative. He has not done so and is considered to be pursuing this appeal pro se. Pursuant to the Board's remand instructions, the RO issued an October 2020 statement of the case (SOC) addressing the issue of entitlement to an effective date earlier than February 13, 2013, for the award of a 60 percent rating for eczema and psoriasis. The Veteran did not perfect an appeal in the matter thereafter (as he was advised to do). Therefore, that issue is no longer before the Board.] Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156 (a). The Court has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Although the AOJ reopened the claims of service connection and addressed them de novo, the Board is required to address the matter itself, to establish jurisdiction to consider the claims de novo. [The AOJ did not identify the evidence that it considered to be new and material in these matters. Regarding eye disability, it was noted that the Veteran had raised anew theory of entitlement, that his various eye diagnoses, to include macular degeneration are secondary to diabetes. However, as diabetes is not service-connected that theory of entitlement lacks legal merit.] 1. The appeal to reopen a claim of service connection for type 2 diabetes mellitus is denied. A May 2011 rating decision denied the Veteran service connection for type 2 diabetes mellitus on the basis that he was not shown to have such disability y. He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, the May 2011 rating decision became final. 38 U.S.C. § 7105. As the Veteran served in Vietnam during the Vietnam Era, and type 2 diabetes mellitus is listed in 38 C.F.R. § 3.309(e), he would be entitled to a presumption of service connection for such disease if he was shown to have it. Thus, the only remaining (and critical, as it would be dispositive) unestablished fact necessary to substantiate the claim is that he must be shown to have type 2 diabetes mellitus. The evidence of record at the time of the May 2011 rating decision included the Veteran's service treatment records, VA treatment records (to include a VA examination report), private treatment records, and lay statements by the Veteran. A November 2010 VA examination found that the Veteran did not have a diagnosis of type 2 diabetes mellitus. Evidence received since the May 2011 rating decision includes, VA treatment records, private treatment records, and additional lay statements by the Veteran. VA and private treatment records added to the claims file since May 2011 do not show of suggest that the Veteran has, or receives treatment for, type 2 diabetes. They show various other diagnoses, and private treatment records show that the Veteran reported a family history of diabetes (mother and father), but contain no mention that he has diabetes or is suspected to have it. His medication lists (VA and private do not show any medication prescribed for treatment of diabetes, and a private systems review list of diagnoses which lists many various diagnoses, does not show a diagnosis to diabetes. While the Veteran has asserted that he has diabetes mellitus, he is a layperson not shown to be competent to diagnose diabetes, and his assertions he has diabetes have no probative value (as such diagnosis requires medical expertise, informed by diagnostic studies). He does not cite to supporting clinical data or medical opinion or treatise evidence. Therefore, the additional evidence received since the May 2011 rating decision does not pertain to the unestablished fact necessary to substantiate the claim, is not new and material, and does not provide a basis for reopening this claim. The Board observes also that in a claim to reopen, VA's duty to assist (e.g., by arranging for an examination or opinion) does not attach unless the claim is in fact reopened. 2. The appeal to reopen a claim of service connection for an eye disability, is denied. A February 2010 rating decision denied the Veteran service connection for an eye disability based essentially on a finding that such disability was not shown to be related to his service. He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, the February 2010 rating decision became final. 38 U.S.C. § 7105. The evidence of record at the time of the February 2010 rating decision included the Veteran's service treatment records, VA treatment records, private treatment records, and lay statements by the Veteran. Evidence received since the February 2010 rating decision includes, VA treatment records, private treatment records, and additional lay statements by the Veteran that include the allegation that his eye disability is secondary to type 2 diabetes mellitus. Because service connection for an eye disability was previously denied based on a finding that such disability was unrelated to the Veteran's service, for evidence to be new and material in this matter, it would have to pertain to that unestablished fact, i.e., tend to show that the Veteran's eye disability may be related to his active-duty service. As noted above, the secondary service connection theory of entitlement he has alleged lack legal merit because diabetes mellitus is not service-connected. Evidence received since February 2010 pertaining to the Veteran's eye disability is cumulative and duplicate. It confirms that he has diagnoses of various eye disabilities, to include macular degeneration. However, that was fact that was previously well-established, and not in dispute, not an unestablished fact necessary to substantiate the claim. The treatment records received for the record since February 2010, do not include any that show or suggest that any of the Veteran's diagnosed eye disabilities are, or may be, etiologically related to his service. Therefore, they are not new evidence that pertains to an unestablished fact necessary to substantiate the claim and are not material. As noted above, the Veteran is a layperson, and his own opinion (regarding the etiology for his various eye disabilities, which is a medical question) is not probative evidence in the matter. Accordingly, the Board concludes that new evidence that pertains to an unestablished fact necessary to substantiate the claim of service connection for an eye disability and that raises a possibility of substantiating such claim has not been received. Consequently, the claim of service connection for an eye disability may not be reopened. REASONS FOR REMAND 3. Entitlement to service connection for a rectum disability (claimed as carcinoma of distal rectum), to include as due to exposure to herbicide agents. Pursuant to the June 2019 Board remand, the Veteran was afforded a VA examination in September 2020. Following interview and examination of the Veteran and review of the claims file, the examiner opined the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, Considering history as related by [the Veteran], current [examination], and review of medical records to include the [V]eteran's [electronic] folder and the BVA remand letter dated [June 17, 2019] was reviewed, I opine that the claimed rectal cancer condition is less likely than not proximately due to or the result of the [V]eteran's military service. The [V]eteran clearly and unmistakably has a rectal cancer condition as noted on treatment records dated [March 26, 2019]. Upon medical literature review from the va.gov, American Cancer Society and uptodate.com there is no current established nexus for herbicide exposure as the cause of colorectal cancer. Upon review of the BVA remand letter dated [June 17, 2019] and medical treatment records dated [December 1, 2017] and [March 26, 2019] the [V]eteran does have a personal history of gall bladder removal, family history of cancer, and unfortunately an alcohol abuse disorder. Upon review of uptodate.com all three of those conditions are risk factors for the development of colorectal cancer. Therefore, I opine that the claimed rectal cancer condition is less likely than not proximately due to or the result of the [V]eteran's military service. In December 2020, the RO requested an additional VA medical opinion addressing whether the Veteran's carcinoma of the distal rectum is secondary to his service-connected posttraumatic stress disorder (PTSD) with alcohol abuse disorder. See December 2020 Exam Request. Following review of the claims file, a January 2021 VA examiner opined, According to https://www.cancer.org/cancer/cancer-causes/diet-physical-activity/alcohol-use-and-cancer.html, "Colon and rectal cancer: Alcohol use has been linked with a higher risk of cancers of the colon and rectum. The evidence for this is generally stronger in men than in women, but studies have found the link in both sexes." "Alcohol can act as an irritant, especially in the mouth and throat. Cells that are damaged by the alcohol may try to repair themselves, which could lead to DNA changes that can be a step toward cancer. Once in the body, alcohol can be converted into acetaldehyde, a chemical that can damage the DNA inside cells and has been shown to cause cancer in lab animals. Drinking alcohol can also lead to oxidative stress in cells, causing them to create more reactive oxygen species (chemically reactive molecules that contain oxygen). These can lead to damage inside the cells that might increase the risk of cancer. Alcohol and its byproducts can also damage the liver, leading to inflammation and scarring (cirrhosis). As liver cells try to repair the damage, they can end up with mistakes in their DNA, which could lead to cancer." With the prominent family history of cancer, the [V]eteran has increased chances of being diagnosed with cancer. His alcohol use is responsible for the diagnosis of rectal cancer as described above; therefore[,] it is as least as likely as not the current diagnosis of carcinoma of the distal rectum is secondary to his alcoholism due to his PTSD. In a January 2021 Exam Request, the RO noted that the September 2020 VA examiner reported that the Veteran's "current symptoms are spot outside the rectum started to grow and has diverticulosis." The RO requested an addendum VA opinion to clarify whether the spot outside the rectum is the noted reducible external hemorrhoid or are the hemorrhoids a separate disability that is unrelated to the rectal carcinoma. See January 2021 Exam Request. In February 2021, a VA examiner completed a VA intestinal conditions examination report following review of the Veteran's claims file (the Veteran was not examined). Following review of the Veteran's claims file and the conflicting medical evidence, the examiner stated, Examiner on [September 24, 2020] rectum DBQ most likely was referring to hemorrhoids when they mentioned open "spot outside the rectum started to grow". This is likely because prior to the statement, the examiner indicated that the [V]eteran had transitional resection of his rectal carcinoma on [December 22, 2017]. The [V]eteran did not endorse any history of recurrence of his rectal cancer, thus it is unlikely that the examiner was referring to rectal cancer when mentioning the spot. Hemorrhoids are considered separate conditions and unrelated to rectal carcinoma. Of note, conditions including IBS, diverticulosis (which was diagnosed) and diverticulitis (not diagnosed) are also considered separate conditions and not related to rectal carcinoma or his hemorrhoids claim. Of note, complete medical records indicate that [V]eteran was never formally diagnosed with rectal carcinoma and the examiner on [September 24, 2020] issued an incorrect diagnosis. Review of records showed [December 14, 2017] general surgery note: chief complaint of rectal mass. Evaluation of lower rectum complaint of bleeding for nearly 2 years. Biopsy showed intramucosal adenocarcinoma [without] evidence of invasive adenocarcinoma. The [V]eteran is status post transrectal resection of rectal polyp [December 22, 2017] with final surgical pathology report indicating that there was no evidence of malignancy. He was diagnosed with rectal polyp and adenomatous polyp. Service treatment records do not contain evidence of initial clinical manifestations of rectal polyps or adenomatous polyps during active service. Current medical research does not indicate a causal relationship between herbicide exposures including agent orange and development of rectal polyps. Regarding hemorrhoids, [service treatment records] are silent on [symptoms]. Records showed [a January 8, 1968] report of medical examination for disability evaluation where the [service member] indicated "no" to section on digestive system including hemorrhoids (internal or external). This indicates that he did not have hemorrhoids that started during service. Upon review, the Board finds an additional (clarifying) medical opinion is necessary. Although the most recent February 2021 VA examiner stated that the Veteran has not been diagnosed with rectal cancer and has instead has diagnoses of rectal polyps and adenomatous polyps, the examiner did not specifically cite to any medical authorities for his opinion that "current medical research does not indicate a causal relationship between herbicide exposures including agent orange and development of rectal polyps". The examiner did not provide an opinion regard the etiology of the Veteran's adenomatous polyps other than stating, "service treatment records do not contain evidence of initial clinical manifestations of rectal polyps or adenomatous polyps during active service." Considering the specifics of this case, and the previous development completed there remains a medical question whether the Veteran's (acknowledged to be service-connected) alcohol abuse was an etiological factor for his development of adenomatous polyps. Regard to hemorrhoids, the February 2021 VA examiner's opinion is improperly based on the lack of medical documentation in the Veteran's service treatment records, in concluding that such "indicates that he did not have hemorrhoids that started during service." See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Remand for a fully-adequate, addendum advisory medical opinion is necessary. The matters are REMANDED for the following: Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an addendum advisory medical opinion regarding the likely etiology of rectal polyps, adenomatous polyps, and hemorrhoids, to include (a) whether they are etiologically related directly to his service and environment exposures therein? and (b) also specifically whether they were caused or aggravated by a service connected disability (to include the alcohol abuse that has been acknowledged to be part of his service-connected PTSD). The rationale provided may not rely solely on the fact that rectal polyps, adenomatous polyps, and hemorrhoids were not diagnosed inservice, and are not diseases listed as associated with exposure to herbicide agents. All opinions must include rationale with citations to supporting factual data in the record and medical principles, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.