Citation Nr: 21073155 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-35 028 DATE: December 7, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disorder is reopened Entitlement to service connection for type II diabetes mellitus is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) major depressive disorder and a substance use disorder is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an esophageal disorder, to include gastroesophageal reflux disease (GERD) and a hiatal hernia is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent for tinea versicolor is remanded. FINDINGS OF FACT 1. A March 1999 rating decision denied entitlement to service connection for a low back disorder. The Veteran was notified of the denial but did not submit new and material evidence or a Notice of Disagreement (NOD) within one year. 2. Evidence received since the March 1999 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a low back disorder. 3. The Veteran served in Vietnam from April 1966 to April 1967 and is presumed to have been exposed to herbicide agents. 4. Medical evidence shows a current diagnosis of type II diabetes mellitus. 5. Tinnitus was incurred in service. CONCLUSIONS OF LAW 1. The March 1999 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for type II diabetes mellitus as due to exposure to herbicide agents are met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to July 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal of May 2011, December 2013, and March 2015 Department of Veterans Affairs (VA) rating decisions. The Veteran withdrew his request for a Board hearing in June 2021 correspondence. Entitlement to service connection for a right knee disorder was first denied in January 1969. In March 1999, July 2004 and February 2007, VA denied reopening the issue of entitlement to service connection for a right knee disorder on the basis that new and material evidence had not been received. Entitlement to service connection for PTSD was denied in March 1999. Entitlement to service connection for type II diabetes mellitus was denied in June 2008. In August 2017, personnel records were associated with the claims file which demonstrate Vietnam service from April 1966 to April 1967. These service personnel records serve to substantiate the Veteran's contention of in-service herbicide exposure, to which he relates his diabetes. Additionally, service treatment records were obtained which showed that in February 1967 the Veteran reported a "fight [with a] Vietnamese" person in which he injured his knees. These service treatment records support the Veteran's January 2011 description of an in-service stressor and right knee injury resulting from a fight with "a Vietnamese or a Vietcong" person. This evidence constitutes service records which are relevant to the claims for service connection for type II diabetes mellitus, PTSD and a right knee disorder and which existed and had not been associated with the claims file when VA first decided the claims. The Board will thus reconsider the claims as opposed to requiring new and material evidence to reopen them. 38 C.F.R. § 3.156 (c). New and material evidence having been received, the claim of entitlement to service connection for a low back disorder is reopened. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Entitlement to service connection for a low back disorder was denied in March 1999 on the basis that the evidence did not demonstrate an in-service etiology of a low back disorder. In an April 1999 letter, the RO notified the Veteran of the determination and of his appellate rights, but he did not appeal the determinations or submit new and material evidence within one year and the decisions became final. 38 U.S.C. § 7105. In November 2010, the Veteran submitted a claim to reopen the issue of entitlement to service connection for a low back disorder, leading to the appeal before the Board today. In a December 2019 letter, a private physician, Dr. C.M. noted diagnoses of chronic low back pain and lumbar degenerative disc disease and opined that the Veteran had "musculoskeletal diseases" which were related to his military service. The Board finds that the evidence received since the March 1999 rating decision is new and material as to the claims for entitlement to service connection for a low back disorder. As this evidence raises a reasonable possibility of substantiating the claim, it is new and material. The claim of entitlement to service connection for a low back disorder is therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Entitlement to service connection type II diabetes mellitus granted. The Veteran contends that his current type II diabetes mellitus is related to in-service exposure to herbicide agents. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Presumptive service connection is available for specific diseases associated with exposure to herbicide agents, to include type II diabetes mellitus. 38 C.F.R. § 3.309 (e). Applicable VA law provides that a Veteran who served in the Republic of Vietnam during the Vietnam War is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). Service records show service in Vietnam from April 1966 to April 1967. April 2018 VA treatment records show diagnosis of type II diabetes mellitus. Accordingly, service connection for diabetes mellitus is established on a presumptive basis. 38 C.F.R. § 3.309 (e). Entitlement to service connection for type II diabetes mellitus is granted. Entitlement to service connection for tinnitus is granted. The Veteran contends that he has tinnitus which is related to in-service noise exposure. The competent and credible evidence of record shows that the Veteran's current tinnitus began during service and has been recurrent since that time. The Veteran reported that he first noticed tinnitus during service and that it has gotten worse over the years. See July 2014 correspondence. The Veteran is competent to report the onset and continuation of his tinnitus symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the October 2010 VA examiner noted that the Veteran did not report tinnitus, it is unclear whether the examiner specifically elicited any report of tinnitus at that time. Because the evidence is at least in equipoise that the Veteran does have current tinnitus which had its onset in service, service connection is warranted. REASONS FOR REMAND Potentially relevant to all the remaining claims on appeal, VA treatment records appear to be outstanding. VA treatment records dated prior to March 2015 and from July 2019 to June 2020 are of record. The latter records reference instances of VA treatment conducted from March 2015 to July 2019, and some notes from that period are incorporated by reference. However, it appears that the complete VA treatment records pertaining to that period have not been obtained. As these records are potentially relevant to the remaining claims on appeal, remand is required to obtain any outstanding VA treatment records, to include from March 2015 to July 2019. Entitlement to service connection for a right knee disorder is remanded. A November 1968 VA examination report contains neither a clear diagnosis of a current knee disorder, nor any etiological opinion. The service treatment records are significant for a February 1967 report of a fight with a Vietnamese person which resulted in injury to the knees. In a January 2011 statement the Veteran reported that he injured his right knee in a fight with a Vietnamese person in 1965-66. Remand is required to obtain an adequate medical examination to address the nature and etiology of any current right knee disorder. Entitlement to service connection for a low back disorder is remanded. At a March 2015 VA examination, the Veteran was diagnosed with a lumbosacral strain and degenerative arthritis of the spine. The examiner opined that it was less likely than not that a low back disorder was caused by tinea versicolor on the basis that the two disorders were physiologically unrelated. The examiner did not address whether a low back disorder was aggravated beyond its natural progression by tinea versicolor, nor whether it was related to medication for tinea versicolor as the Veteran contends, nor whether a low back disorder was directly related to the Veteran's service, to include the complaints of recurrent back pain on an April 1968 report of medical history at service separation. Remand is required to obtain an adequate medical examination addressing this issue. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, major depressive disorder and a substance use disorder is remanded. In April 2011, a VA examiner found no psychiatric diagnosis and declined to offer any etiological opinion. At a March 2015 examination the Veteran was diagnosed with an alcohol use disorder. The examiner stated that the Veteran did not have diagnosed PTSD and therefore declined to provide any etiological opinion as any acquired psychiatric disorder. However, the examiner speculated that the Veteran's "tinea versicolor may be associated to [his] alcohol use disorder." In August 2017 a VA examiner diagnosed only an alcohol use disorder in remission. The examiner declined to offer an etiological opinion as to any acquired psychiatric disorder on the basis that PTSD was not diagnosed. Generally, VA compensation may not be paid for primary substance abuse disabilities, or for secondary disabilities arising from primary abuse. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1, 3.301. However, compensation may be paid for substance abuse that is secondary to, or a symptom of, a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Allen, 237 F. 3d at 1381. While the March 2015 examiner opined that the two disorders "may be associated," this opinion is too speculative to serve as the basis of an award of service connection. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009). Remand is required to obtain an adequate medical opinion as to whether the Veteran's diagnosed alcohol use disorder, or any other substance use disorder, was caused or aggravated by his service-connected tinea versicolor. Additionally, since the most recent VA psychiatric examination, VA treatment records note diagnosis of major depressive disorder. See June 2020 VA treatment record. Remand is also required to obtain a medical opinion regarding the etiology of that disorder. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea is remanded. The Veteran has not been provided a VA examination to consider the nature and etiology of his claimed sleep disorder. In a December 2019 letter, a private physician, Dr. C.M. noted that the Veteran had a current diagnosis of obstructive sleep apnea and opined that the Veteran's cardiopulmonary disorder was due to military service. Dr. C.M. did not specify whether obstructive sleep apnea specifically was related to active-duty service nor did he provide any rationale for the positive etiological opinion. While Dr. C.M.'s opinion is insufficient nexus evidence to grant service connection for obstructive sleep apnea, it is sufficient to raise the possibility that a current sleep apnea may be related to an in-service injury or disease. Accordingly, remand is required to obtain a medical opinion addressing this issue. Entitlement to service connection for headaches is remanded. In a March 2015 VA examination, the Veteran was diagnosed with tension headaches, but the examiner opined that disorder was less likely than not related to tinea versicolor on the basis that the diseases were physiologically unrelated. The examiner did not address whether tension headaches were aggravated beyond their natural progression by tinea versicolor. Additionally, in his August 2016 VA Form 9, the Veteran asserted this disorder was related to in-service herbicide exposure. Remand is required to obtain a medical examination to address this issue. Entitlement to service connection for an esophageal disorder, to include GERD and a hiatal hernia is remanded. At a December 2014 VA examination the Veteran was diagnosed with GERD and a hiatal hernia. The examiner opined that an esophageal disorder was less likely than not caused by medication taken for the Veteran's service-connected tinea versicolor. In a January 2015 addendum the examiner opined that an esophageal disorder was less likely than not caused by the service-connected tinea versicolor itself. The examiner did not address whether an esophageal disorder was, at least as likely as not, aggravated beyond its natural progression by tinea versicolor, to include any medication taken for that disorder. Additionally, in his August 2016 VA Form 9, the Veteran asserted this disorder was related to in-service herbicide exposure. Accordingly, remand is required to obtain an adequate medical opinion addressing this issue. Entitlement to service connection for erectile dysfunction is remanded. At a December 2014 VA examination the Veteran was diagnosed with erectile dysfunction, but the examiner opined the disorder was less likely than not related to medication for tinea versicolor. In January 2015 the examiner opined that erectile dysfunction was less likely than not directly related to tinea versicolor. The examiner did not address whether erectile dysfunction was aggravated beyond its natural progression by tinea versicolor, to include medication taken for that disorder. Additionally, in his August 2016 VA Form 9, the Veteran asserted this disorder was related to in-service herbicide exposure. Remand is required to obtain a medical opinion addressing this issue. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was last provided a VA examination to consider the nature and etiology of his claimed bilateral hearing loss in October 2013. At that time, the Veteran did not demonstrate hearing loss for VA purposes. See 38 C.F.R. § 3.385. The examiner characterized the results as demonstrating normal left ear hearing and a mild-to-moderate right ear hearing loss but opined that hearing loss was less likely than not related to in-service noise exposure, apparently in part on the basis that the Veteran did not demonstrate a significant hearing loss at that time. Recent VA treatment records show that the Veteran's "problem list" includes bilateral hearing loss. As this evidence suggests that the Veteran's hearing loss may be worse than reported at the October 2013 VA examination, a new hearing loss examination should be obtained. Entitlement to a rating in excess of 10 percent for tinea versicolor is remanded. In the July 2021 appellate brief, the Veteran's representative asserted that the March 2015 VA examination was too old to assess the current severity of the Veteran's tinea versicolor. Mere passage of time is not a basis for requiring a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, if the evidence indicates that the disability has worsened since the most recent VA examination, VA is required to afford a contemporaneous examination to assess the current nature, extent and severity of the disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, VA treatment records show the Veteran on at least one occasion in February 2020 went to the emergency room for treatment of his skin condition. The Board finds this sufficient to trigger the duty to obtain a new examination. Additionally, the March 2015 VA examiner noted that the Veteran's skin disorder required near-constant use of topical corticosteroids. As this claim was pending prior to August 13, 2018, the holding in Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017) that some applications of topical corticosteroids may constitute systemic therapy under 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017) must be considered. It is unclear whether topical corticosteroids were administered on a large enough scale such that they affected the body as a whole. The Board finds this information is needed to fully adjudicate the issue. The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant VA treatment records, to specifically include VA treatment records dated between March 2015 and July 2019. 2. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a right knee disorder. The examiner should state: a. What diagnosed right knee disorders have been present at any time since October 1, 1968? b. For each such right knee disorder: is it at least as likely as not related to an illness, event, or injury in service, to include the fight reported in February 1967? 3. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a low back disorder. The examiner should state: a. What diagnosed low back disorders have been present at any time since November 24, 2010? b. For each such low back disorder: is it at least as likely as not related to an illness, event, or injury in service? c. For each such low back disorder: is it at least as likely as not proximately caused by any other service-connected disorder, to include medication taken for a service-connected disorder? d. For each such low back disorder: is it at least as likely as not aggravated beyond its natural progression by any other service-connected disorder, to include medication taken for a service-connected disorder? 4. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of an acquired psychiatric disorder. The examiner should state: a. What diagnosed acquired psychiatric disorders have been present at any time since September 8, 1998? b. For each such acquired psychiatric disorder other than a substance use disorder: is it at least as likely as not related to an illness, event, or injury in service, to include the fight reported in February 1967? c. For each such acquired psychiatric disorder, to include an alcohol or substance use disorder: is it at least as likely as not proximately caused by any other service-connected disorder, to include medication taken for a service-connected disorder? d. For each such acquired psychiatric disorder, to include an alcohol or substance use disorder: is it at least as likely as not aggravated beyond its natural progression by any other service-connected disorder, to include medication taken for a service-connected disorder? 5. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of obstructive sleep apnea. The examiner should state: a. What sleep disorders have been present at any time since March 28, 2013? b. For any such sleep disorder: is it at least as likely as not related to an illness, event, or injury in service? 6. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of headaches. The examiner should state: a. What diagnosed headaches have been present at any time since July 24, 2014? b. For any such headaches: are they at least as likely as not related to an illness, event, or injury in service, to include herbicide exposure in Vietnam? c. For any such headaches: are they at least as likely as not proximately caused by any other service-connected disorder, to include medication taken for a service-connected disorder? d. For any such headaches: are they at least as likely as not aggravated beyond their natural progression by any other service-connected disorder, to include medication taken for a service-connected disorder? 7. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of an esophageal disorder, to include GERD and a hiatal hernia. The examiner should state: a. What diagnosed esophageal disorders have been present at any time since October 11, 2012? b. For any such esophageal disorder: is it at least as likely as not related to an illness, event, or injury in service, to include herbicide exposure in Vietnam? c. For any such esophageal disorder: is it at least as likely as not proximately caused by any other service-connected disorder, to include medication taken for a service-connected disorder? d. For any such esophageal disorder: is it at least as likely as not aggravated beyond its natural progression by any other service-connected disorder, to include medication taken for a service-connected disorder? 8. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of erectile dysfunction. The examiner should state: a. Has diagnosed erectile dysfunction been present at any time since July 24, 2014? b. For any such erectile dysfunction: is it at least as likely as not related to an illness, event, or injury in service, to include herbicide exposure in Vietnam? c. For any such erectile dysfunction: is it at least as likely as not proximately caused by any other service-connected disorder, to include medication taken for a service-connected disorder? d. For any such erectile dysfunction: is it at least as likely as not aggravated beyond its natural progression by any other service-connected disorder, to include medication taken for a service-connected disorder? 9. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hearing loss. The examiner should state: a. What diagnosed hearing loss has been present at any time since October 11, 2012? b. For any such hearing loss: is it at least as likely as not related to hazardous noise exposure in service? 10. After the development in step 1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tinea versicolor to include tinea cruris and tinea unguium. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must review the claims file and state whether, at any time since November 24, 2010, medication for the Veteran's tinea versicolor, to include medication for tinea cruris and tinea unguium, had "systemic" effects, that is, were administered on a large enough scale such that they affected the body as a whole. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.