Citation Nr: 21074031 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-21 612 DATE: December 14, 2021 ORDER As new and material evidence has been presented, the petition to reopen the previously denied claim of service connection for a low back condition is granted. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for erectile dysfunction due to exposure to contaminated drinking water at Camp LeJeune is remanded. FINDING OF FACT 1. In an October 2014 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a low back condition. The Veteran did not file a notice of disagreement (NOD) to appeal the October 2014 decision, and it became final. 2. The additional evidence submitted since the October 2014 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a low back condition. CONCLUSION OF LAW 1. The October 2014 rating decision denying service connection for a low back condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As new and material evidence submitted since the October 2014 denial has been received, the criteria for reopening the claim of service connection for a low back are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. New and Material Evidence A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Petition to reopen the previously denied claim of service connection for a low back condition The Veteran's claim for entitlement to service connection for a low back condition was previously denied in an October 2014 rating decision because the RO determined that the Veteran's back condition was not related to service. Since the October 2014 rating decision, evidence including medical records, a medical opinion, lay statements, and hearing testimony have been submitted. The Board concludes that the evidence received since the October 2014 rating decision is new and material as it is not cumulative and, when considered with evidence earlier of record, relates to the unestablished elements necessary to substantiate the claim. Thus, the claim of entitlement to service connection for a low back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition is remanded. The Veteran asserts he is entitled to service connection for a low back condition. In submitted statements and during the Board hearing, the Veteran explained that during service he was tasked with wiring electricity throughout medical tents. He stated he often fell from heights as high as 15 feet while performing this task, which is when his back pain onset. He reported the pain has continued since service. The Veteran testified that he sought treatment for back pain during service, and primarily treated himself after service discharge. Unfortunately, the Veteran's claims file shows that despite attempts to locate his compete record, very few service medical records were available. Thus, the Board notes that VA has a heightened duty to assist the Veteran in developing his claims when records are lost through no fault of his own. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also 38 C.F.R. § 3.159. In February 2018, the Veteran was afforded a VA thoracolumbar spine examination, during which he was diagnosed with degenerative arthritis and intervertebral disc syndrome (IVDS). At the examination, the Veteran reported that his back symptoms began in 1977 due to multiple falls while wiring electricity for medical tents. The Veteran stated the condition of his back has worsened since service. The VA examiner opined that it was less likely than not that the Veteran's back condition was incurred in or caused by service. As rationale, the VA examiner stated that the Veteran's service separation examination was silent for a back condition at discharge, and there were no military service treatment records that pertain to the lower back. The VA examiner also stated that the Veteran's post-service records did not show treatment for a back condition until February 2009. The Board finds the VA examiner's opinion is inadequate. As part of the rationale for his opinion, the VA examiner notes that the Veteran's service treatment records do not reference treatment for a back condition. However, this statement fails to acknowledge the fact that the Veteran's in-service records are incomplete. The VA examiner also notes that the Veteran was not treated until February 2009, but a review of the post-service medical records actually shows that "backache" was listed as an active problem as early as February 2007. Further, treatment notes from July 2010 indicate the Veteran requested medication for chronic back pain that had existed for the past 20 years since falling and hurting his back while in the military. The VA examiner's opinion fails to consider the Veteran's lay statements about the onset and continuation of his back pain. Remand is necessary in order to obtain an addendum medical opinion to consider the Veteran's lay statements of observable symptomatology, particularly in light of the missing service treatment records. 2. Entitlement to service connection for erectile dysfunction due to exposure to contaminated drinking water at Camp Lejeune is remanded. The Veteran also asserts he is entitled to service connection for erectile dysfunction as a result of exposure to contaminated drinking water at Camp Lejeune. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (codified at 38 C.F.R. § 3.307 (a)(7)). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 82 Fed. Reg. at 4,185 (codified at 38 C.F.R. § 3.309 (f)). While erectile dysfunction is not among these diseases, service connection may still be established with proof of actual direct causation. In the July 2015 rating decision, the RO confirmed that the Veteran served at Camp Lejeune during the period of potential exposure, and, therefore, was presumed to have been exposed to contaminated drinking water for VA compensation purposes. Although the Veteran was afforded a VA male reproductive organ conditions examination in February 2018 and was diagnosed with erectile dysfunction, the VA examiner did not provide a medical opinion regarding the etiology of the condition. Remand is required to obtain a VA medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lumbar spine degenerative arthritis and IVDS are at least as likely as not related to military service, to include several falls from tents while wiring electricity. A complete rationale must be provided for all opinions expressed. (a.) The examiner is advised that the Veteran's lay statements about the onset and continuation of his back symptoms must be considered. (Continued on the next page) 2. Obtain an opinion from an appropriate clinician regarding whether the Veteran's erectile dysfunction is at least as likely as not related to contaminants in the water during service at Camp Lejeune. A complete rationale must be provided for all opinions expressed. (a.) The examiner is advised that a negative opinion cannot be based solely on the fact that erectile dysfunction is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.