Citation Nr: 21070788 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-46 071 DATE: November 26, 2021 ORDER New and material evidence having been received, the claim to reopen service connection for acute promyelocytic leukemia is granted. New and material evidence not having been received, the claim to reopen service connection for a low back disability is denied. New and material evidence not having been received, the claim to reopen service connection for a right knee disability is denied. New and material evidence not having been received, the claim to reopen service connection for a left knee disability is denied. Entitlement to service connection for high blood pressure is denied. REMANDED Entitlement to service connection for acute promyelocytic leukemia is remanded. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) and chronic adjustment disorder with depressed mood is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. FINDINGS OF FACT 1. An unappealed rating decision in June 2011 denied service connection for acute promyelocytic leukemia. 2. The evidence received since the June 2011 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for acute promyelocytic leukemia. 3. An unappealed rating decision in August 2000 denied service connection for a low back disability. 4. The evidence received since the August 2000 rating decision does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claim for service connection for a low back disability. 5. An unappealed rating decision in August 2012 denied service connection for a bilateral knee disability. 6. The evidence received since the August 2012 rating decision does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claim for service connection for a right knee disability. 7. The evidence received since the August 2012 rating decision does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claim for service connection for a left knee disability. 8. The preponderance of the evidence is against finding that the Veteran's high blood pressure began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied the Veteran's claim for service connection for acute promyelocytic leukemia is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence has been received to warrant reopening the previously denied claim of entitlement to service connection for acute promyelocytic leukemia. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 3. The August 2000 rating decision that denied the Veteran's claim for service connection for a low back disability is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2020). 4. New and material evidence has not been received to warrant reopening the previously denied claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 5. The August 2012 rating decision that denied the Veteran's claim for service connection for a bilateral knee disability is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2020). 6. New and material evidence has not been received to warrant reopening the previously denied claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 7. New and material evidence has not been received to warrant reopening the previously denied claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 8. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1988 to June 1999, and in the United States Army from January 2003 to March 2004. During his latter period of service, from February 2003 to February 2004, he served in Kuwait and Iraq in support of Operations Enduring Freedom and Iraqi Freedom. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual hearing before the Board. A transcript of the hearing is of record. In consideration of the various psychiatric diagnoses on file, the Board has expanded the Veteran's compensation claim to encompass an acquired psychiatric disorder to include PTSD and adjustment disorder with depressed mood. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record indicates that the Veteran's service treatment records for his second period of service from January 2003 to March 2004 are missing. A May 2011 VA memorandum on the Unavailability of Service Records indicates that the attempts to obtain those records were exhausted and no records were found. When such records are missing due to no fault of the Veteran, there is a heightened obligation on the part of VA to explain findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). That notwithstanding, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). New and Material In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. Regardless of what the RO has determined, it is the Board's jurisdictional responsibility to consider whether a claim should be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 1. Acute Promyelocytic Leukemia The last final decision that denied service connection for acute promyelocytic leukemia, claimed as due to exposure to ionizing radiation, was in June 2011. In that rating decision, the agency of original jurisdiction (AOJ) found that there was no evidence to confirm the doses of ionizing radiation the Veteran may have been exposed to and his service treatment and military personnel records failed to provide evidence of radiation exposure. The AOJ considered the Veteran's separation record (DD Form 214) which shows that his primary specialty in the United States Navy was an auxiliary systems technician. The AOJ also considered a May 2010 report from a VA oncologist who reported that there is an association between ionizing radiation exposure and leukemia, and that the Veteran's work around nuclear reactors and at naval shipyards at least as likely as not exposed him to "some level of radiation exposure while on active duty". The AOJ additionally considered a medical case-control study report showing an association between leukemia and ionizing radiation at the Portsmouth Naval Shipyard. Pertinent evidence received after June 2011 includes a November 2015 affidavit from the Veteran containing specific dates and places where he asserts he was exposed to ionizing radiation while on active duty. In this regard, he said he was exposed to ionizing radiation while serving as an engineman aboard the USS Fulton and the USS Enterprise and while serving in Norfolk, Virginia, where he routinely worked aboard nuclear submarines. He also said that he was required to wear dosimeters that were checked monthly. He included service personnel records showing his duty assignments. This evidence provides additional information regarding the Veteran's exposure to ionizing radiation in service and relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Accordingly, it constitutes new and material evidence sufficient to reopen the claim for service connection for acute promyelocytic leukemia. 38 C.F.R. § 3.156. 2. Low Back Disability The last final decision that denied service connection for a low back disability was in August 2000. The AOJ denied the claim at that time on the basis that the evidence did not show that the Veteran had a back disability that was incurred in or aggravated by service. Evidence on file in August 2000 consisted of the Veteran's service treatment records from his first period of service. Those records are devoid of complaints or findings related to the Veteran's back. Also, the AOJ noted in August 2000 that the Veteran failed to report to a VA examination which could have been material to the outcome of this claim. See 38 C.F.R. §3.655. The evidence received after August 2000 includes VA treatment records. These records include a VA nursing triage note in May 2012 that shows that the Veteran complained of chronic back pain which he assessed as a seven on a pain scale to 10. The evidence also includes the Veteran's hearing testimony in July 2021. However, a review of the hearing transcript does not reveal testimony pertinent to this claim. Accordingly, the Board finds that the evidence received since August 2000 does not relate to an unestablished fact necessary to substantiate the claim for service connection for a low back disability and does not raise a reasonable possibility of substantiating the claim. While the medical evidence shows the Veteran's complaint in May 2012 of chronic back pain, that report is essentially cumulative of his report of back pain that the AOJ considered in August 2000. Thus, in the absence of new and material evidence, the Veteran's claim for service connection for a low back disability is not reopened. 38 C.F.R. § 3.156. Right and Left Knee Disabilities The last final decision denying service connection for a bilateral knee disability was in August 2012. The AOJ denied that claim on the basis that the evidence did not show an event, disease, or injury in service. Evidence on file in August 2012 includes the Veteran's service treatment records from his first period of service. These records are devoid of complaints or findings related to the Veteran's knees. The evidence on file in August 2012 also includes post-service private orthopedic records from Dr. Munn's office from May 2007 to January 2009. Those records show that the Veteran was referred to Dr. Munn for bilateral knee pain in May 2007. A May 2007 record notes that the Veteran had a three-week history of bilateral knee pain, right worse than left. This record also shows that the Veteran denied a history of knee trauma. X-rays were negative. He was diagnosed as having knee effusion, bilateral, and he underwent aspiration of the joint fluid. He was seen for a follow up visit in June 2007. In August 2007, he underwent magnetic resonance imaging (MRI) of the right and left knees which revealed a large complex joint effusion in the left knee with degenerative signal abnormality within the posterior horn of the medial meniscus, and a small to moderate sized joint effusion in the right knee with posterior fluid collection medially. The Veteran was assessed in December 2008 as having osteoarthritis (OA) of both knees. In January 2009, he was given bilateral Supartz injections for mild OA. Pertinent evidence received after August 2012 consists of the Veteran's July 2021 hearing testimony wherein he said that he essentially has no cartilage left in his knees and that he experiences fluid buildup in his knees in addition to swelling and pain. He also said that he was given knee injections which did not help. In short, the Board finds that the evidence received since August 2012 does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. That is, the evidence does not show that the Veteran had a knee injury or disease in service, that his diagnosed OA of the knees developed within a year of his separation from active service, or that his knee disabilities are otherwise related to service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Thus, in the absence of new and material evidence, the Veteran's claims for service connection for right and left knee disabilities are not reopened. 38 C.F.R. § 3.156. Service Connection for Hypertension Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including hypertension, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 mm. or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The Board notes at the outset that the Veteran has not been afforded a VA examination with respect to this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, as is discussed below, the low threshold requirement for affording the Veteran a VA examination has not been met with respect to this claim. Id. Accordingly, an examination is not required. The Veteran's service treatment records for his first period of service from December 1988 to June 1999 are devoid of complaints or findings of high blood pressure. In fact, the Veteran denied having hypertension on dental health questionnaires dated in December 1989, November 1990, November 1991, October 1992, and June 1993. He also denied a history of high or low blood pressure on Reports of Medical history in January 1994 and November 1994. His blood pressure was 130(systolic)/88(diastolic) on a periodic examination report in November 1994, and 134/86 on a Medical Board Physical Evaluation report in March 1999. Unfortunately, as noted, the Veteran's service treatment records for his second period of service from January 2003 to March 2004 are not available for review. With that said, the Veteran has not made specific assertions as to the onset of his high blood pressure. The earliest notation in his treatment records showing high blood pressure is in April 2007, when a private physician reported that the Veteran was being monitored for high blood pressure. A subsequent VA discharge note in May 2012 shows that he was advised to monitor his blood pressure at home, and he was counseled on the importance of regular exercise and/or physical activity as well as reduced sodium intake to control his blood pressure. A VA treatment record in April 2014 shows that he had new onset hypertension and he was prescribed medication (Lisinopril) at that time. In short, the earliest indication that the Veteran was being monitored for high blood pressure is years after service and he was first diagnosed as having hypertension many years after service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed Cir. 2000) (the passage of many years between discharge from active service and medical documentation of a claimed disability is a factor that may weigh against a claim for service connection). Regarding the Veteran's belief that his high blood pressure is related to an in-service injury, event, or disease, he, is not competent to provide a nexus opinion. This is because the issue is medically complex and requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). It is thus outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Id; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Inasmuch as the weight of evidence is against essential elements for this claim, i.e., (2) in-service disease or injury; and (3) evidence of a causal relationship between the postservice diagnosis of high blood pressure/hypertension and a disease or injury incurred or aggravated during service, the claim must be denied. Shedden, 381 F.3d at 1163. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Service Connection for Acute Promyelocytic Leukemia Now that the claim for service connection for acute promyelocytic leukemia is reopened, the Board notes that there is a newly raised theory of service connection which has not yet been addressed. In this regard, the Veteran testified in July 2021 that when he filed to reopen his claim for service connection for acute promyelocytic leukemia in November 2015, he asserted that his leukemia is due to his in-service exposure to Benzene gas in addition to ionizing radiation. He explained in an affidavit in November 2015 that while serving aboard the USS Enterprise he had to stand in "JP 8 fuel" which had high levels of Benzene gas. He also said that on many occasions the gas soaked through his clothing and/or shoes and reached his skin. He went on to testify that VA has not yet considered this theory of service connection. The Board agrees. Accordingly, a remand is necessary to address this newly raised theory of entitlement. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In this regard, a medical opinion should be obtained that addresses the likelihood that the Veteran's acute promyelocytic leukemia is related to his claimed exposure to Benzene gas while serving in the United States Navy. 38 U.S.C. §5103A(d). 2. Service Connection for an Acquired Psychiatric Disability The Veteran asserts that he has PTSD related to various stressors including not being retained in the military (see July 2014 VA PTSD examination report) and being fired upon by the enemy while riding in a convoy in Iraq (see statement on VA Form 21-0781 received in April 2014). In support of the latter stressor the Veteran submitted a statement by a fellow serviceman who verified the convoy attack. The Veteran's representative pointed out in written argument in June 2021 that the AOJ conceded the Veteran's presence in a hostile environment in the June 2017 Statement of the Case. As such, the issue regarding PTSD concerns whether the Veteran has the disability as claimed. Pertinent evidence includes a VA examiner's opinion in July 2014 that the Veteran did not meet the criteria for PTSD, but rather he had an adjustment disorder. Notably, this VA examiner did not consider the Veteran's reported stressor involving being shot at by the enemy in Iraq while on a convoy. See 38 C.F.R. §3.304(f)(3). Instead, the examiner relied on the Veteran's report that his mental health symptoms were the direct result of him being "Forced out of the Army" due to his leukemia diagnosis. The pertinent evidence also includes the opinion of a private psychologist in November 2014 who found that that the Veteran met the DSM-IV criteria for PTSD. However, he went on to state that the Veteran met "most diagnostic criteria for PTSD" and he explained that "veterans often provide incomplete or confabulatory reports of their actual symptoms; [the Veteran's] clinical presentation and psychometric findings are consistent with residual emotional turmoil attributable, in part, to a previous traumatic event." He did not provide further explanation as to what diagnostic criteria the Veteran met and what diagnostic criteria he did not meet. Also, regarding the DSM, effective August 4, 2014, VA promulgated an interim final rule regarding the use of the newest edition of the DSM, the DSM-V, with regard to all applications for benefits relating to mental disorders. 79 Fed. Reg. 45,093 (Aug. 4, 2014). This rulemaking was to update 38 C.F.R. Parts 3 and 4, including 38 C.F.R. § 4.125, to conform to the DSM-V because the DSM-IV had been rendered outdated upon the publication of the DSM-V in May 2013. Id. at 45,094. In the rule, the Secretary of VA determined that DSM-V applies to claims certified to the Board, as here, on and after August 4, 2014. Id. In this case, the Veteran's claim was certified to the Board in September 2017; accordingly, the DSM-V applies. In view of the foregoing, a new examination is necessary to reconcile the conflicting and incomplete findings outlined above with respect to a PTSD diagnosis. 38 U.S.C. §5103A(d). Also, the examiner should be asked to render an etiological opinion regarding any other psychiatric diagnoses that the Veteran has. 3. Service Connection for ED The Veteran testified at the Board hearing in July 2021 that his ED may be secondary to his psychiatric disability. Consequently, this issue is deferred pending resolution of the claim for service connection for an acquired psychiatric disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an opinion based on a review of the Veteran's claims file from an oncologist or other clinician with experience or expertise in the area of occupational exposures and cancer risks regarding whether the Veteran's acute promyelocytic leukemia, currently in remission, is at least as likely as not related to exposure to chemicals and fuels while serving in the United States Navy, to include Benzene from jp-8 fuel. The examiner must provide information regarding his or her specialty/expertise in the matter at hand and discuss relevant medical literature on the topic of exposure to the above noted substance. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule an examination by an appropriate psychiatrist or psychologist to determine the nature and etiology of the Veteran's acquired psychiatric disability. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. (a) The examiner must identify the Veteran's current diagnoses of his psychiatric disability under DSM-V criteria. (b) The examiner must opine whether the Veteran's current psychiatric disability is at least as likely as not (more than 50 percent or more probability) related to his active duty service or had its onset in service. (c) The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. (d) If a diagnosis of PTSD under DSM-V criteria is warranted, the examiner must specify the specific in-service stressors that led to the diagnosis and whether it is a result of fear of hostile military or terrorist activity. (e) The examiner must provide a complete written rational for any opinion rendered. 3. Confirm that all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.