Citation Nr: 21075231 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-00 834 DATE: December 17, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a back disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right hip disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a left hip disorder is granted. Service connection for a sinus disorder is denied. Service connection for a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for an unspecified neurocognitive disorder is remanded. Entitlement to service connection for a right eye disorder is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to an initial compensable rating for right trench foot with residuals of onychomycosis is remanded. Entitlement to an initial compensable rating for left trench foot with residuals of onychomycosis is remanded. FINDINGS OF FACT 1. A final March 1969 rating decision denied service connection for a back disorder; newly received evidence raises a reasonable possibility of substantiating the claim. 2. A final April 2016 rating decision denied service connection for right and left hip disorders; newly received evidence raises a reasonable possibility of substantiating the claims. 3. The Veteran has not been diagnosed with sinus or TBI disorders. CONCLUSIONS OF LAW 1. Evidence received to reopen the claim of entitlement to service connection for a back disorder is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received to reopen the claim of entitlement to service connection for a right hip disorder is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. Evidence received to reopen the claim of entitlement to service connection for a left hip disorder is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. The criteria for service connection for a sinus disorder have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1962 to October 1966, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart and Vietnam Service Medal. The Veteran testified before the undersigned Veterans Law Judge at an October 2021 travel board hearing. A transcript of this proceeding has been associated with the record. New and Material Evidence First, the Veteran seeks to reopen service connection claims for back and bilateral hip disorders on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, service connection was denied for back and bilateral hip disorders in March 1969 and April 2016 rating decisions, respectively. The Veteran did not perfect appeals as to these rating decisions or submit documentation constituting new and material evidence within the appropriate appeal periods, such that the March 1969 and April 2016 rating decisions became final with respect to their governing matters. Subsequently, the Veteran requested to reopen all three claims in September 2017. His request may be granted upon a finding that new and material evidence has been received since the final March 1969 and April 2016 rating decisions. A positive finding is offered in this case. Notably, the March 1969 rating decision was predicated on the Regional Office's (RO's) determination that the Veteran did not show limitation of motion of the thoracic spine (and thus presumably, did not show a current disability). Evidence received since that time shows that the Veteran has been diagnosed with multiple back disorders, including degenerative arthritis and degenerative disc disease (DDD). See, e.g., October 2017 and January 2019 VA examinations. Accordingly, this new evidence speaks directly to an unestablished fact necessary to substantiate the claim. Further, the April 2016 rating decision was based upon the RO's determination that the Veteran's bilateral hip disorders were neither incurred in nor caused by service. However, the Veteran's October 2021 hearing testimony contributes to a more complete picture of the circumstances which may have contributed to each of the claimed disabilities, including in-service physical hardships which purportedly caused bilateral hip pain. Given the Veteran's competency to testify as to matters capable of lay observation, the Board finds that this new evidence also raises a reasonable possibility of substantiating the claims. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.304(d) (VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service). Upon a finding of new and material evidence, the application to reopen the service connection claims for back and bilateral hip disorders is hereby granted. Service Connection At this time, the Veteran is also pursuing direct service connection for sinus and TBI disorders. The Board will limit its analysis accordingly. As these appeals require similar analyses, they will be addressed simultaneously herein. Thus, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Accordingly, the threshold question here is whether the Veteran shows current disorders for which direct service connection may be warranted. Regrettably, the probative evidence weighs against such a finding with respect to both appeals. Notably, an October 2017 VA examiner declined to diagnose the Veteran with a current sinus condition or TBI; these expert conclusions were based upon the examiner's review of the claims file in its entirety and contemporaneous evaluation of the Veteran, and the Board considers these conclusion and the examinations supporting them to be adequate. The claims file is otherwise silent for a current TBI diagnosis, to include in medical treatment records. Although VA treatment records spanning the period on appeal note intermittent and mild sinus symptoms including tenderness and drip, these are routinely attributed to short-term illnesses such as pharyngitis and not to a chronic, ratable disability. Compellingly, none of the Veteran's treating physicians have diagnosed him with a chronic sinus disorder, in corroboration with the October 2017 VA examiner's findings. Rather, the only evidence suggestive of current disabilities in this case is the Veteran's assertions of such. Although he is competent to testify as to his observable symptoms, Layno, 6 Vet. App. at 469, he lacks the training and expertise to offer a competent opinion as to complex medical matters, including the existence of current diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, greater probative value is afforded to the medical evidence of record, which supports the conclusion that the Veteran does not demonstrate current sinus or TBI disabilities for which service connection may be warranted. In offering this finding, the Board has considered the Veteran's lay testimony regarding his symptoms and their perceived impact on his functioning. However, he has not indicated that his pain is productive of such functional impairment that current disabilities may be established on this basis. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). In sum, the Veteran does not demonstrate current sinus or TBI disabilities for which service connection is warranted; rather, his sinus symptoms are attributed to acute illnesses and he has never been diagnosed with a TBI. Thus, the preponderance of the evidence is against the claims such that the benefit-of-the-doubt rule is not applicable, and the appeals seeking direct service connection for sinus and TBI disorders are hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. With respect to the service connection appeals, the Veteran has undergone a series of VA examinations to date. However, his October 2021 hearing testimony contained new theories of entitlement which require consideration by a medical professional. With specific respect to the neurocognitive appeal, clarification is also warranted as to the nature of any existing disorder and its etiology. With respect to the increased rating appeals, the Veteran was most recently assessed during October 2017 VA examination. However, this examination did not consider the full scope of symptoms by which the Veteran may be awarded higher ratings, nor did it appropriately contemplate his reports of potential neuropathic damage. A new examination, specifically for cold injury residuals, is required at this time. Additionally, the Veteran referenced private chiropractic treatment during the October 2021 hearing. Efforts to obtain these treatment records are required. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify all private providers of medical treatment for his claimed disabilities since service, including with a private chiropractor, and request authorization for release of all identified private medical records to VA. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. If possible, the Veteran should attempt to obtain the records himself. 2. Schedule the Veteran for VA examinations to assess the nature and etiology of the claimed back, hips, neurocognitive, right eye, and headache disorders. The claims file and a copy of this remand must be made available for review. In particular, the examiner MUST offer medical opinions as to: a. Identify all relevant diagnoses during the period on appeal, to include pain productive of functional impairment. If a diagnosis of arthritis is rendered, the examiner must explicitly identify the onset thereof. The neurocognitive examiner must also explicitly indicate whether the Veteran's symptoms are due to his service-connected posttraumatic stress disorder (PTSD) or represent a separate diagnosis with symptoms which can be reasonably distinguished. b. For each current diagnosis, opine whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service? Specifically, the hips examiner must address the Veteran's testimony of injuries incurred due to carrying heavy equipment during service and/or combat participation. The back examiner must address the Veteran's testimony of injury incurred during a firefight, including when he jumped off a terrace. The right eye and headache examiners must address the Veteran's testimony of injury incurred during a friendly fire incident, including his reports as to a subsequent worsening of his vision. In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected bilateral trench foot (classified as cold injury residuals). The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Code 7122. [CONTINUED ON NEXT PAGE] In doing so, the examiner must indicate whether the Veteran shows any neuropathic symptoms and/or conditions related to his service-connected trench foot, as argued during his October 2021 hearing. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.