Citation Nr: 21068907 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 18-40 082 DATE: November 15, 2021 ORDER New and material evidence having been received to reopen the claim of service connection for hypertension, to that extent only, the appeal is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for irritable colon syndrome, on a secondary basis, is granted. Entitlement to service connection for irritable bowel syndrome, on a secondary basis, is granted. Entitlement to service connection for sinusitis is granted. Entitlement to a compensable rating for onychomycosis is dismissed. Entitlement to service connection for diabetes mellitus type 2 is dismissed. Entitlement to service connection for acute costochondritis is dismissed. Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for hernia is dismissed. REMANDED Entitlement to service connection for allergies is remanded. Entitlement to a disability rating in excess of 10 percent for lumbar disc degeneration (low back disability) is remanded. Entitlement to a disability rating in excess of 10 percent prior to April 30, 2019, and in excess of 20 percent thereafter for right lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy (previously claimed as left leg injury) is remanded. FINDINGS OF FACT 1. In an April 2008 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for hypertension, and the Veteran appealed that decision. 2. In a July 2009 Statement of the Case (SOC), the VA RO denied service connection for hypertension; the Veteran did not appeal the decision and new and material evidence was not received within the one-year of the rating decision. 3. Evidence associated with the record since the July 2009 SOC relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 4. The Veteran's hypertension manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. 5. The Veteran's irritable colon syndrome is proximately due to his service-connected posttraumatic stress disorder (PTSD). 6. The Veteran's irritable bowel syndrome is proximately due to his service-connected PTSD. 7. The Veteran's sinusitis manifested within 10 years of his service in Afghanistan. 8. At his hearing before the Board of Veterans' Appeals (Board) in May 2021, the Veteran requested withdrawal of the appeal as to the issue of entitlement to a higher rating for onychomycosis, and the issues of service connection for diabetes mellitus type 2, acute costochondritis, bilateral hearing loss, and hernia. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for hypertension have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for hypertension have been satisfied. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for irritable colon syndrome as secondary to service-connected PTSD have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for irritable bowel syndrome as secondary to service-connected PTSD have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for sinusitis have been satisfied. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. 6. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of higher rating for onychomycosis. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of service connection for diabetes mellitus type 2. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of service connection for acute costochondritis. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of service connection for bilateral hearing loss. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of service connection for hernia. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1997 to August 1997, and from July 2002 to July 2003. These matters come before the Board from the May 2014, November 2016, and April 2017 rating decisions issued by a VA RO. In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. As an initial matter, it is noted that the issue of entitlement to service connection for left leg injury had been certified to the Board for adjudication. However, during the hearing, the Veteran reported that the claim of service connection for left leg injury actually refers to left lower extremity radiculopathy for which service connection was awarded in a March 2020 rating decision. Instead, the Veteran asserted that the correct issue on appeal should be an initial higher rating for left lower extremity radiculopathy. The Board finds that jurisdiction to address the rating for left lower extremity radiculopathy as part of the low back appeal is proper. See Chavis v. McDonough, 34 Vet. App. 1 (2021). This issue will be addressed in the remand portion of this decision. 1. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In this case, at the hearing with the undersigned, the Veteran withdrew his appeal as to the issues of higher rating for onychomycosis, and service connection for diabetes mellitus type 2, acute costochondritis, hernia, and bilateral hearing loss. The practical implications of a withdrawal were explained to the Veteran during the hearing, and he agreed that he still wished to withdraw his appeal as to these issues. As the Veteran explicitly and unambiguously withdrew from appeal the issues of entitlement to higher rating for onychomycosis, and service connection for diabetes mellitus type 2, costochondritis, hernia, and bilateral hearing loss with full understanding of the consequences of this action, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. 2. Reopen the Claim of Service Connection for Hypertension If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran's claim of service connection for hypertension in an April 2008 rating decision, and he filed a timely notice of disagreement. A July 2009 SOC denied his claim finding that there was no evidence of a diagnosis or treatment for hypertension while the Veteran was in service and there was no link between his hypertension and his service-connected low back disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within 60 days of the SOC or within one year of the rating decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2009). The evidence received since the July 2009 SOC includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a March 2017 VA medical opinion was obtained addressing whether there was a link between the Veteran's hypertension and his service. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as hypertension. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 3. Hypertension The Veteran asserts that his hypertension was caused by his active duty service. The Veteran has a current diagnosis of hypertension as evidenced by the March 2017 VA examination. Hypertension is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. As noted above, the Veteran's latest active duty service was from July 2002 to July 2003. During a July 2003 treatment held prior to his separation, it was noted that the Veteran had high blood pressure and was taking medication. Post-service treatment records dated April 2004 show that the Veteran's hypertension manifested to a compensable degree within the applicable presumptive period. In that regard, the Veteran's blood pressure reading was 130/84 and it was noted that the Veteran was taking medication for his hypertension. As a chronic condition, any subsequent manifestations are service-connected unless attributable to intercurrent causes. The Board acknowledge the service records which show the Veteran had a family history of persons who had hypertension. See December 2000 Report of Medical History. The service record also indicate that the Veteran was taking high blood pressure medication as a precaution. Id. However, even during that examination, it was explicitly noted that the Veteran did not have a diagnosis for hypertension. Since no intercurrent causes have been shown in this case, the Board finds that the Veteran's hypertension is attributable to service. 4. Irritable Colon Syndrome 5. Irritable Bowel Syndrome After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for gastrointestinal disability to include irritable colon syndrome and irritable bowel syndrome. The Veteran contends that his gastrointestinal disability is secondary to his service-connected posttraumatic stress disorder (PTSD). See May 2021 Hearing Tr. at 13. The Veteran has a current gastrointestinal disability. See October 2016 VA Examination Report. Thus, the remaining question for the Board is whether the Veteran's gastrointestinal disability is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected PTSD. The Veteran presented for a VA examination in October 2016, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that irritable bowel syndrome and irritable colon syndrome are a recognized specific diagnosis with a cause that is unknown though stress may be a risk factor. The examiner noted that there is no indication that any Gulf War exposure increases the risk of occurrence. The Veteran submitted a private medical opinion by Dr. J.D. in June 2021. Dr. J.D. noted that the Veteran participated in two deployments, one to Bosnia and another to Afghanistan. Dr. J.D. reviewed medical literature and noted that there was evidence connecting intestinal bowel syndrome with certain mental health problems. Dr. J.D. noted that mental health would occur first followed by intestinal bowel syndrome which suggest that psychiatric conditions may increase the risk of developing intestinal bowel syndrome. Dr. J.D. further noted that there was a strong link between stress and intestinal bowel syndrome with people having the latter condition having a higher rate of exposure to traumatic events. Based on the foregoing, the Dr. J.D. opined that the Veteran's intestinal bowel syndrome is proximately due to his service-connected PTSD. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case, to include a review of the October 2016 VA medical opinion. Dr. J.D. also supported his findings by citing to relevant medical literature. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Upon review of the record, the Board finds the preponderance of the evidence supports finding that the Veteran's current gastrointestinal disability is proximately due to his service-connected PTSD. The Board gives some probative weight to the October 2016 VA medical opinion where the examiner opined that stress may be a risk factor for irritable bowel and colon syndrome. Further, the Board gives great probative weight to the June 2021 private medical opinion by Dr. J.D. as it was rendered by a trained medical professional based on reasonably drawn conclusions with supportive rationale. Accordingly, the Board finds that service connection for gastrointestinal disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Sinusitis The Veteran has been diagnosed with sinusitis during the appeal period, it was diagnosed at his March 2017 VA examination. The Veteran's service personnel records show that he served in Afghanistan in 2002 and 2003. Because he served in Afghanistan, he is presumed to have been exposed to fine particulate matter. See 38 C.F.R. § 3.320. If a veteran was exposed to particulate matter during active service, sinusitis shall be service-connected if it manifests within 10 years from the date of separation from service that includes the qualifying period of service. The Veteran had sinusitis at his June 2003 separation examination. There is no affirmative evidence that it was not incurred during a qualifying period of service, or that it was caused by a supervening condition or event, or that it was due to his willful misconduct. Service connection for sinusitis is therefore granted. Id. REASONS FOR REMAND 1. Service Connection for Allergies is Remanded. The Veteran contends that his allergies are due to his active duty service. In a September 1986 report of medical examination, the examiner noted that the Veteran had episodic allergic rhinitis that was controlled by medication. During a July 2002 entrance examination held prior to deployment, the Veteran reported that he had a mild case of allergies that is treated with medication. Where a pre-existing condition is noted on entry into service and there is an increase in symptoms during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Cotant v. Principi, 17 Vet. App. 116, 124, 130 (2003). Here, during his June 2003 separation examination, it was noted that the Veteran had allergies. The Veteran specifically reported that during allergy season, he has problems with pollen. Thus, since allergies were noted on entry into active duty and there appears to be an indication of a possible increase in symptoms during service, the Board finds that remand for a VA examination is necessary. The examination obtained must determine whether it is clear and unmistakable that any increase in the Veteran's symptoms for his allergies was due to the natural progression of the condition. 38 C.F.R. § 3.306. 2. Disability Rating for Low Back Disability is Remanded. 3. Disability Rating for Right Lower Extremity Radiculopathy is Remanded. 4. Disability Rating for Left Lower Extremity Radiculopathy is Remanded. During the May 2021 hearing, the Veteran asserted that the issues of higher rating for low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of issues of higher rating for low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claim of service connection for allergies, and higher rating claim for low back disability and bilateral lower extremity radiculopathy. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. Obtain the Veteran's VA treatment records for the period from November 2019 to the present. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion regarding the following: (a.) Is it at least as likely as not that the Veteran's pre-existing allergies was aggravated (increased in severity) during his active military service? (b.) If so, is there clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability? The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. The claims file should be reviewed by the examiner. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.