Citation Nr: 21069159 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-60 475 DATE: November 17, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for a disorder due to asbestos exposure, to include asbestosis, is denied. New and material evidence having not been received, the application to reopen the claim of service connection for diabetes mellitus, type II, is denied. New and material evidence having not been received, the application to reopen the claim of service connection for a low back disorder is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a disorder manifested by vision loss is remanded. Entitlement to service connection for a disorder manifested by a sore throat is remanded. Entitlement to service connection for a left knee disorder, to include osteoarthritis, is remanded. Entitlement to service connection for a right knee disorder, to include osteoarthritis, is remanded. FINDINGS OF FACT 1. In a December 2010 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for a disorder due to asbestos exposure, to include asbestosis, diabetes mellitus, type II, and a low back disorder. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the denial. 2. Evidence received since the final December 2010 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a disorder due to asbestos exposure, to include asbestosis, diabetes mellitus, type II, and a low back disorder. CONCLUSIONS OF LAW 1. The December 2010 rating decision that denied the claims of entitlement to service connection for a disorder due to asbestos exposure, to include asbestosis, diabetes mellitus, type II, and a low back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.302, 20.1103. 2. The criteria for reopening previously denied claims of entitlement to service connection for a disorder due to asbestos exposure, to include asbestosis, diabetes mellitus, type II, and a low back disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April and June of 2016 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2018 and July 2021, the Board remanded these claims for development. The case has now been returned to the Board for further appellate review. New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence VA is required to review for newness and materiality is that which has been submitted by the claimant since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a disorder due to asbestos exposure, to include asbestosis 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II, 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder By way of procedural history, the Veteran's claims for service connection for a disorder due to asbestos exposure, to include asbestosis, diabetes mellitus, type II, and a low back disorder, were initially denied in a December 2010 rating decision. Specifically, in the December 2010 rating decision, the claim for asbestosis was denied because the evidence did not indicate any findings of a chronic disease or disability related to the claimed asbestos exposure. The claim for diabetes mellitus was denied because, while there was evidence of a current diagnosis of diabetes mellitus, the evidence did not establish either the incurrence of the condition in service or a link between military service and the current findings. The claim for a low back disorder was denied because the evidence did not demonstrate a current diagnosis or treatment pertaining to any low back condition. The Veteran filed to reopen the claims for service connection for a disorder due to asbestos exposure and diabetes mellitus, type II in January 2016, and this appeal was denied in an April 2016 rating decision, finding that there was no new and material evidence. The Veteran filed to reopen the claim for service connection for a low back disorder in June 2016 that claim was denied in a June 2016 rating decision, finding that there was no new and material evidence. The Veteran timely appealed the April 2016 and June 2016 rating decisions with respect to a disorder due to asbestos exposure, diabetes mellitus, and a low back disorder, and those decisions did not become final. Therefore, the Board looks to whether new and material evidence was submitted since the December 2010 rating decision. Evidence of record at the time of the December 2010 rating decision consisted of the Veteran's statements, his service treatment records (STRs) and VA treatment records. Evidence received since the prior denial consists of additional VA treatment records. The Board notes that VA medical records (dated in 2004, 2005, and 2006) note that on a regular basis the Veteran was receiving treatment from private physicians through his private insurance. Therefore, the Board remanded this case in November 2018 to obtain the relevant, outstanding private treatment records. Thereafter, the RO issued a September 2019 development letter requesting that the Veteran complete an enclosed VA Form 21-4142. The Veteran completed and returned this form in December 2019; however, as the private providers' information was not of record, the RO subsequently issued a December 2019 memorandum indicating that a VA 21-4124a was required. In a July 2021 remand, the Board directed that VA issue a letter notifying the Veteran that VA provided an inadequate release form in September 2019, and request that he complete and return an enclosed VA Form 21-4124a. In compliance with this instruction, VA sent a letter with the appropriate forms enclosed dated July 16, 2021. To date, the Veteran has not submitted any response or further information pertinent to his claims. Without the addition of any private treatment records, the only new evidence of record since the December 2010 rating decision includes VA medical records that have continued to document the Veteran's diagnosis of diabetes mellitus and treatment for other conditions unrelated to the present claims. This evidence is new, in that it was not before VA at the time of the December 2010 rating decision, however it is not material because the existence of diabetes mellitus had already been established at that time. To date, there has been no additional evidence associated with the record that demonstrates that diabetes mellitus had an in-service onset or that it was caused by service in some way. Further, the VA treatment records fail to indicate a current diagnosis of any disorder related to asbestos exposure or the low back. There is no evidence submitted since the prior final decision that is material to the claims for service connection for a disorder due to asbestos exposure, to include asbestosis, diabetes mellitus, type II, or a low back disorder. As the Veteran has not submitted evidence that meets the threshold of both new and material, there is no basis to reopen the claims of entitlement to service connection for a disorder due to asbestos exposure, to include asbestosis, diabetes mellitus, type II, and a low back disorder, and the requests to reopen those claims must be denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for a disorder manifested by vision loss is remanded. 3. Entitlement to service connection for a disorder manifested by a sore throat is remanded. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide the claims. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The requirement that the evidence indicates that the Veteran's disability may be associated with her service is a low threshold. Id. The record contains post-service VA medical records indicating that the Veteran is prescribed medication for hypertension and has been seen by the ophthalmology department, though a September 2009 treatment record noted no evidence of diabetic retinopathy. Further, the Veteran's service treatment records (STRs) show ongoing complaints for a sore throat including notes in July 1969, July 1970, December 1970, May 1973, November 1973, and May 1979. The Veteran has contended that he has current disabilities of hypertension, vision loss, and chronic sore throat that began during, or are otherwise related to his active duty service. To date, the Veteran has not been afforded VA examinations to address the nature and etiology of any diagnosed hypertension, disorder manifested by vision loss, or disorder manifested by a sore throat. In light of the Veteran's contentions and the record on appeal, VA examinations should be obtained to determine the nature and etiology of the aforementioned disorders. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. 83. 4. Entitlement to service connection for a left knee disorder, to include osteoarthritis, is remanded. 5. Entitlement to service connection for a right knee disorder, to include osteoarthritis, is remanded. In April 2016 the Veteran underwent a VA examination for his knees. At that time, the examiner noted bilateral knee osteoarthritis. At the time of the examination, the Veteran attributed his bilateral knee pain to his duties during service and reported leg cramps since service. The examiner opined that it was less likely than not that the Veteran's bilateral knee disabilities were caused by or incurred in service. In providing the opinion, the examiner did not provide any rationale, aside from noting that there were no knee abnormalities noted in the Veteran's STRs or at the time of the Veteran's separation from service. The examiner did not provide any explanation as to the significance of this evidence. Moreover, the examiner opined that the Veteran's bilateral knee disorder was not related to the reported leg cramps during service but provided no rationale to support this opinion. The opinions are therefore inadequate and on remand new opinions must be obtained to determine the etiology of the Veteran's current left and right knee disorders. The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant private and/or VA treatment records. 2. After obtaining any outstanding records, schedule the Veteran for VA examinations to determine the nature and etiology of the claimed hypertension, disorder manifested by vision loss, and disorder manifested by sore throat. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner is asked to address the following: (a.) For each claimed disorder, the examiner should identify any diagnoses and opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease. (b.) The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If any of the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). 2. After obtaining any outstanding records, obtain a medical opinion regarding the Veteran's bilateral knee disorders, to include osteoarthritis, from an appropriate examiner. The examiner should review the entire claims file, to include a copy of this Remand, and the opinion should include discussion of the Veteran's documented history and assertions. The examiner should clearly identify all current disabilities of the bilateral knees noted in the record. Then, with respect to each such diagnosed disorder, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disorder had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the Veteran's contentions that he began experiencing leg cramps during service and attributes his current knee disorders to his duties in service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 3. Readjudicate the claims. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and given an opportunity to respond. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.