Citation Nr: 21072805 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-44 851 DATE: December 6, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a hernia repair, also claimed as a right testicle condition, and the request to reopen is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for frostbite of the left foot, and the request to reopen is granted. REMANDED Entitlement to service connection for a hernia repair, also claimed as a right testicle condition, is remanded. Entitlement to service connection for a left foot disability, claimed as residuals of frostbite, is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDINGS OF FACT 1. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a hernia repair, also claimed as a right testicle condition. 2. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for frostbite of the left foot. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a hernia repair, also claimed as a right testicle condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for frostbite of the left foot. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to December 1977. This matter comes before the Board on appeal from an April 2015 Regional Office (RO) rating decision. New and Material Evidence Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. It was further noted that reopening a claim only to deny it without providing assistance would be a hollow, technical decision and that there was no reason to expend agency resources on a semantic determination that is not tied to a meaningful procedural duty. Id. at 123-24. A final denial on one theory is a final denial on all theories. Thus, a new theory in support of a claim for a particular benefit is not equivalent to a separate claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a hernia repair, also claimed as a right testicle condition, and the request to reopen is granted. The claim of entitlement to service connection for hernia repair was previously denied in a September 2002 rating decision based on the finding that "There is no record of treatment or surgery in service for a hernia. In order to establish a complete claim, it is necessary to provide evidence which demonstrates that the claimed condition was incurred in or aggravated by military service." The rating decision notes that the Veteran's enlistment physical examination noted that he had a right undescended testicle that was palpable in the right inguinal canal. The September 1977 separation physical examination report noted that the Veteran was advised to have an operation for his undescended testicle. It was noted that the actual operative report was not of record but that a November 1977 physical profile record notes a post-operative status of right orchiectomy. At the time of the rating decision, the record contained the Veteran's service treatment records. The Veteran was notified of this decision in September 2002 and initiated an appeal via a notice of disagreement that was received by VA in February 2003. He was issued a statement of the case in July 2003, but he did not submit a VA Form 9 substantive appeal to perfect an appeal of this decision. Therefore, new and material evidence is required to reopen this claim. The Board finds that new and material evidence has been submitted in the form of an October 2002 VA medical record reflecting that the Veteran had a past medical history of bilateral leg pain, which started in the early 1970s during service. He reported that he has been experiencing this pain since service. His July 2017 RO hearing transcript reflects that he agreed with his representative's assertion that the Veteran believes that his leg pains were connected to the surgery. (See hearing transcript, page 10.) When asked "But what made you connect it to the surgery?" the Veteran's response was "Because... I thought it was because pain was coming from here down, and going through my leg." (See hearing transcript, pages 10-11.) While the location of the origination point of the pain was not clarified in the hearing transcript, context strongly suggests that the Veteran was testifying that the pain was originating from the site of his surgery and was radiating to his legs. The Board finds that this evidence is new in that it was not of record at the time of the last adjudication of this claim in the July 2003 statement of the case. It is material in that it suggests a relationship between the in-service hernia/testicular symptomatology and current symptomatology. Therefore, new and material evidence having been received, the claim is reopened. To this extent, the claim is granted. It will be considered on the merits in the remand section below. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for frostbite of the left foot, and the request to reopen is granted. The claim of entitlement to service connection for frostbite of the left foot was previously denied in a September 2002 rating decision based on the finding that, "There is no record of treatment in service for frost bite left foot. In order to establish a complete claim, it is necessary to provide evidence which demonstrates that the claimed condition was incurred in or aggravated by military service." The rating decision noted that the Veteran's service treatment records "fail to show complaints, treatment, or diagnosis of frost bite of the left foot. What is shown is that you were seen with complaints of Athlete's foot and soreness in the bottom of both feet." At the time of the rating decision, the record contained the Veteran's service treatment records. The Veteran was notified of this decision in September 2002 and initiated an appeal via a notice of disagreement that was received by VA in February 2003. He was issued a statement of the case in July 2003, but he did not submit a VA Form 9 substantive appeal to perfect an appeal of this decision. Therefore, new and material evidence is required to reopen this claim. The Board finds that new and material evidence has been submitted in the form of the Veteran's July 2017 RO hearing testimony that the fifth toe on his left foot was operated on shortly following his separation from service. (See hearing transcript, page 15.) He stated that he was exposed to cold weather in service and his feet had started to hurt. He reported that he sought treatment in service and that the doctor had informed him that he had frostbite. He noted that, after service, "I think they operated on me ... on my feet there 'cause they was telling me that I had to have an operation because that ... half of my toes ... the bone ... had deteriorated." (See hearing transcript, page 15.) He reported that he had surgery on his left fifth toe when he left service. (See hearing transcript, page 16.) The Board finds that this evidence is new in that it was not of record at the time of the last adjudication of this claim in the July 2003 statement of the case. It is material in that it suggests a relationship between service and current left toe complaints. Therefore, new and material evidence having been received, the claim is reopened. To this extent, the claim is granted. It will be considered on the merits in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for a hernia repair, also claimed as a right testicle condition, is remanded. If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. To be noted within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). A pre-existing disability will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. The claimant bears the burden of showing aggravation. It is unclear whether this issue concerns a hernia repair, a right testicle condition, or both. The July 2017 RO hearing transcript indicates that the Veteran's condition has variously been described by medical professionals and in VA adjudications as a "hernia repair" or a "right testicle" condition. (See RO hearing transcript, pages 3-5.) Turning to the Veteran's service treatment records, the June 1974 enlistment examination report notes a clinical abnormality of the genitourinary system, specifying "[right] testicle missing?" A urology clinic consultation was requested, and the resulting June 1974 urology record notes that the Veteran has a right undescended testicle which is palpable in the right inguinal canal. It states that the Veteran should consider an orchiectomy. A May 1977 urology clinic note reflects that the Veteran has an undescended right testis and that he should plan to return in August or September for a right orchiectomy. A September 1977 separation examination report notes a clinical abnormality of the genitourinary system. It specifies that the Veteran has an undescended right testicle palpable above the inguinal ligament. Although the writing is not entirely legible, the September 1977 separation medical history report appears to state that the Veteran was "Advise[d] to have [right] ing[uinal] hernia." A November 1977 urology clinic consultation record notes that a right orchiectomy was scheduled for November 1977. A physical profile record from the day following the surgery notes that the Veteran is "Post op status, right orchiectomy." A December 1977 urology clinic record notes that the Veteran's sutures were removed and that there were no problems. With respect to post-service evidence, as noted above, an October 2002 VA medical record reflects that the Veteran had a past medical history of bilateral leg pain, which started in the early 1970s during service. He reported that he has been experiencing this pain since service. This record also notes that the Veteran has reported that he had a hernia repair operation in service and possibly had a left orchiectomy at the same time. (The notation of a "left" orchiectomy rather than a "right" orchiectomy appears to be a mistake, not an indication that the Veteran has actually undergone a left orchiectomy.) VA medical records also note that the Veteran has a past surgical history that includes "rt hernia repair (1977)." (See September 2014 VA medical record.) His records also note that he has had a right orchiectomy. It appears that this recorded history is based on the Veteran's own reports rather than on available medical records that record any 1977 surgery or surgeries. It is therefore not clear that the current notations of a 1977 right hernia repair corroborate whether his 1977 surgery did or did not involve a hernia repair. With respect to a current disability and nexus, the July 2017 RO hearing transcript reflects that he agreed with his representative's assertion that the Veteran believes that his leg pains were connected to the surgery. (See hearing transcript, page 10.) When asked "But what made you connect it to the surgery?" the Veteran's response was "Because... I thought it was because pain was coming from here down, and going through my leg." (See hearing transcript, pages 10-11.) While the location of the origination point of the pain was not clarified in the hearing transcript, context strongly suggests that the Veteran was testifying that the pain was originating from the site of his surgery and was radiating to his legs. Given the above, the Board finds it necessary to remand this claim for a VA examination and etiology opinion. 2. Entitlement to service connection for a left foot disability, claimed as residuals of frostbite, is remanded. As noted above, the Veteran has stated that he was exposed to cold weather in service and his feet had started to hurt. He reported that he sought treatment in service and that the doctor had informed him that he had frostbite. He noted that, after service, "I think they operated on me ... on my feet there 'cause they was telling me that I had to have an operation because that ... half of my toes ... the bone ... had deteriorated." (See RO hearing transcript, page 15.) He reported that he had surgery on his left fifth toe when he left service. (See hearing transcript, page 16.) With respect to his service treatment records, the June 1974 enlistment examination report ultimately reflects that the Veteran's feet were clinically normal when examined on entrance into service. (The Board notes that the "Abnormal" box was checked for "36. Feet" and a notation was made to "See Item 74." However, Item 74 of the examination report notes the following: "#36 Hemorrhoidal tags Asymptomatic NDQ Ext." Despite this notation of hemorrhoidal tags, the Veteran's "Anus and Rectum," under Item 32, was marked as "Normal." No description of a foot abnormality was made in #74 or anywhere else in this report. Based on the above, the Board concludes that the check mark of "36. Feet" was inadvertent and finds that the Veteran's feet were clinically normal at the time of his June 1974 enlistment examination. A July 1976 service treatment record requests a consultation for moderate symptomatic pes planus. A July 1976 record from the following day notes that the Veteran reported experiencing soreness in the bottoms of both feet, and he was assessed as having moderate symptomatic pes planus. A September 1976 record notes that the Veteran had sharp pain coming from the arches of his feet that make it hard to run or jump. The Veteran was treated for athlete's foot in June 1977. The Veteran's September 1977 separation examination report notes that the Veteran's feet were clinically normal when examined. The Veteran reported a history of, or current, foot trouble on his September 1977 medical history report, and the explanation noted that the Veteran has experienced problems with athlete's foot. Post-service, VA medical records reflect that the Veteran has been diagnosed with bilateral pes planus and bilateral tinea pedis. (See, e.g., July 2004 VA pediatry report.) A May 2008 VA medical record notes an impression of "history of chronic recurrent fungal infection in the toes/tenia [sic]." A July 2008 VA medical record notes that the Veteran sought foot treatment that was assessed as "Interdigital corn 4- left resolved infection post 5th metat[a]rsal head resection." VA medical records note that the Veteran had a "left foot...left toe" surgery in 1977. (See, e.g., September 2014 VA medical record.) Another VA medical record notes that the "Veteran expresses that he is physically limited in his ability to climb[] and balance and bend[] due to arthritis, pes planus, and foot pain...." (See August 2015 VA medical record.) Given the Veteran's treatment for foot problems in service and his current foot disabilities, the Board finds it necessary to remand this claim so that the Veteran may undergo a VA examination and an etiology opinion may be obtained. 3. Entitlement to service connection for hemorrhoids is remanded. The June 1974 enlistment examination notes a finding of "hemorrhoidal tags asymptomatic NDQ Ext." Therefore, the Veteran's hemorrhoids were noted on entry into service, and service connection may only be considered based on aggravation. The record reflects that the Veteran underwent a VA rectum and anus conditions (including hemorrhoids) examination in May 2018. Based on review of the record and interview and examination of the Veteran, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its normal progression by an in-service injury, event, or illness. The examiner's rationale includes the assertion that "There are no treatment records in service for his claimed hemorrhoids/PI[L]ES conditions." The Board notes, however, that the Veteran's service treatment records include a July 1976 record noting that the Veteran "Had hemorrhoidectomy 1 week ago. Records lost. Pt was given [illegible] cream." The Board finds that a remand of this issue is required to obtain an addendum opinion that addresses this evidence. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained. 2. Arrange for the Veteran to undergo an examination to determine the nature and etiology of any current right hernia or right testicle disability. The file must be reviewed by the examiner in connection with the examination, and review of the record should be noted in the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The Board notes that the Veteran's service treatment records reflect that he underwent a "right orchiectomy" in November 1977 (during service), but these records are not available. For purposes of this opinion, VA has concluded that the Veteran did, in fact, undergo a surgery during service. After review of the record and interview and examination of the Veteran, the examiner should diagnose all current disabilities, to include any residuals of an in-service surgery. (a) With respect to the claimed hernia repair: If the Veteran is found to have a hernia or residuals of a hernia or hernia repair, is it at least as likely as not (a 50 percent probability or greater) that any such disability had its onset in or is otherwise etiologically related to his military service? (b) With respect to the right testicle condition: The Veteran was noted on his June 1974 enlistment examination report to have a clinical abnormality of the right testicle. It is therefore considered to be a pre-existing disability. If the Veteran is currently found to have a right testicle condition or residuals of a right testicle condition, please address the following: (i) Was there at least as likely as not (a 50 percent probably or greater) that a right testicle condition underwent an increase in disability during service? (ii) If an increase in a right testicle condition occurred during service, was the in-service increase in disability clearly and unmistakably due to the natural progression of the condition? A complete rationale for all opinions should be provided, including discussion of pertinent medical principles and the facts of the Veteran's case. 3. Arrange for the Veteran to undergo an examination to determine the nature and etiology of any current left foot disability. The file must be reviewed by the examiner in connection with the examination, and review of the record should be noted in the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. After review of the record and interview and examination of the Veteran, the examiner should diagnose all current disabilities of the left foot. The examiner should specifically diagnose or rule out pes planus, athlete's foot, and residuals of frostbite injury. For any such disability that is diagnosed, the examiner should express an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any such disability had its onset in or is otherwise etiologically related to his military service. In providing this opinion, the examiner should discuss the Veteran's service treatment records, specifically the records reflecting treatment for moderate pes planus and athlete's foot. The examiner should discuss the Veteran's reported mechanism of injury: Specifically, the Veteran contends that he has current residuals of an in-service frostbite injury. He contends that he had to have surgery on the fifth toe on his left foot shortly following his separation from service because the bone was "deteriorating." A complete rationale for all opinions should be provided, including discussion of pertinent medical principles and the facts of the Veteran's case. 4. Obtain an opinion from an appropriate examiner regarding whether it is at least as likely as not (a 50 percent probability or greater) the Veteran's pre-existing hemorrhoid disability underwent an increase in severity during his active service. If yes, was the increase in severity of the hemorrhoids clearly and unmistakably due to the natural progress of the disorder? In providing this opinion, the examiner should discuss the July 1976 record noting that the Veteran "Had hemorrhoidectomy 1 week ago. Records lost. Pt was given [illegible] cream." A complete rationale for all opinions should be provided, including discussion of pertinent medical principles and the facts of the Veteran's case. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.