Citation Nr: 21077432 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-61 407 DATE: December 29, 2021 ORDER New and material evidence has been received to reopen a service connection claim for headaches. New and material evidence has been received to reopen a service connection claim for a right shoulder injury. New and material evidence has been received to reopen a service connection claim for tubulovillous adenoma, right colon, status-post right colectomy (claimed as colon cancer). REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for right shoulder injury is remanded. Entitlement to service connection for tubulovillous adenoma, right colon, status-post right colectomy (claimed as colon cancer) and residuals thereof, is remanded. FINDINGS OF FACT 1. In an unappealed August 2010 rating decision, the AOJ last denied service connection for headaches, a right shoulder injury, and tubulovillous adenoma, right colon, status post right colectomy (claimed as colon cancer). 2. The evidence received since the August 2010 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for headaches, a right shoulder injury, and tubulovillous adenoma, right colon, status-post right colectomy (claimed as colon cancer). 3. The evidence received since the last final August 2010 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for headaches, a right shoulder injury, and tubulovillous adenoma, right colon, status-post right colectomy (claimed as colon cancer). CONCLUSIONS OF LAW 1. The August 2010 rating decision that last denied service connection for headaches, a right shoulder injury, and tubulovillous adenoma, right colon, status post right colectomy (claimed as colon cancer) is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. New and material evidence has been received sufficient to reopen the claim of service connection for headaches, a right shoulder injury, and tubulovillous adenoma, right colon, status-post right colectomy (claimed as colon cancer). 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 1970 to June 1974, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In August 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Appeals to the Board, normally considered in docket order, may be advanced on the docket upon a showing of good cause, including severe financial hardship. 38 U.S.C. § 7107 (2012); 38 C.F.R. § 20.902 (2020). Here, the record reflects that the Veteran suffers severe financial hardship. See Correspondence to Congressman Barry Loudermilk received March 28, 2017. Therefore, the Board, on its own motion, grants advancement on the docket. 38 C.F.R. § 20.902(c)(1). Petition to Reopen Previously Denied Service Connection Claims Rating decisions are final, and binding, based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. In a legacy claim (a claim not appealed under the new Appeals Modernization Act) such as this one, an exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 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 (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. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, 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 "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a January 2008 rating decision, the AOJ denied the Veteran's original claims for service connection for headaches and a right shoulder injury. See Rating Decision dated January 29, 2008. The AOJ concluded that the Veteran's headaches and right shoulder injury were not related to service as there was no evidence indicating that they occurred in or were caused by service. The Veteran did not appeal the January 2008 rating decision, nor was new and material evidence received within a year of issuance of the January 2008 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In March 2010, the Veteran sought service connection for tubulovillous adenoma, right colon, status post right colectomy and petitioned VA to reopen his service connection claims for headaches and a right shoulder injury. In an August 2010 rating decision, the AOJ denied the Veteran's claim for service connection for the colon disorder finding that it was not related to service because it is not a disease associated with exposure to herbicide agents. The AOJ declined to reopen the service connection claims for headaches and a right shoulder injury finding that the evidence submitted was not new and material. See Rating Decision dated August 21, 2010. The Veteran did not appeal the August 2010 rating decision, nor was new and material evidence received within a year of issuance of the August 2010 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In June 2015, the Veteran sought to reopen his service connection claims for headaches, a right shoulder injury, and tubulovillous adenoma, right colon, status post right colectomy. In an October 2015 rating decision, the AOJ declined to reopen the service connection claims, concluding that the Veteran had not submitted new and material evidence. The Veteran submitted a timely NOD and timely perfected an appeal to the Board, and the instant appeal ensued. Here, the last final denial of the Veteran's claims for entitlement to service connection for headaches, a right shoulder injury, and tubulovillous adenoma, right colon, status post right colectomy was the August 2010 rating decision, which reflects the AOJ's findings that there was no evidence of record indicating that the colon disorder is related to service and that evidence submitted in support of the claims for service connection for headaches and a right shoulder injury was not new and material. Evidence of record at that time included the Veteran's service treatment records, VA treatment records through January 2010, and the Veteran's March 2010 statement in support of his claim. Evidence received since the last denial of the claims in August 2010 includes August 2015 correspondence from the Veteran asserting in-service injuries, VA treatment records, a statement of the Veteran's representative in August 2021, and the August 2021 Board hearing transcript. The August 2021 representative's statement and the August 2021 Board hearing transcript speak to the question of a nexus between the Veteran's headaches, right shoulder, and colon disorders and service, and is therefore new and material. Accordingly, new and material evidence has been received, and to this extent only, the claims of service connection for headaches, a right shoulder injury, and tubulovillous adenoma, right colon are reopened. REASONS FOR REMAND On appeal, the Veteran asserts multiple theories of service connection regarding the instant claims, including that the Veteran's right shoulder and headaches disabilities are related to exposure to herbicide agents in Vietnam and a 1973 Jeep accident at MacDill Air Force Base in Florida, and that the Veteran's tubulovillous adenoma of the colon is related to the 1973 Jeep accident. See Appeal to Board of Veterans' Appeals (VA Form 9) received November 22, 2017 at pg. 2; Board hearing transcript dated August 30, 2021 at pgs. 21-22. The AOJ has not previously considered the service connection theories of headaches or the colon disorder as due to herbicide agents in Vietnam or the colon disorder as due to the 1973 Jeep accident. Notably, the January 2008 rating decision does not appear to have considered either theory, instead merely implying that the right shoulder disorder injury was caused by a post-service vehicle accident in 2006, and the August 2010 rating decision simply concludes that the Veteran's colon disorder is not among the diseases for which presumptive service connection is available under VA regulation 38 C.F.R. § 3.309(e). VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2020). Whether evidence "indicates" that a disability, or persistent or recurrent symptoms of a disability may be associated with the claimant's service "is a low threshold." McLendon, 20 Vet. App. at 83. Here, the Veteran is currently diagnosed with headaches, right shoulder, and colon disorders. See, e.g., VA Primary Care Attending Note dated January 15, 2020; VA correspondence to Veteran dated March 11, 2020; VA Otolaryngology Consult dated September 27, 2019. His service treatment records reflect headaches during his deployment to Vietnam, which was prior to the 1973 Jeep accident at MacDill Air Force Base. See Clinical Record Cover Sheet dated March 5, 1972; Chronological Record of Medical Care entry dated March 24, 1972. The in-service injury of herbicide agent exposure is presumed since the Veteran had service in Vietnam as shown in service records reflecting medical treatment at an Air Force dispensary in Phan Rang, Vietnam and an Air Force hospital in Cam Ranh Bay, Vietnam in 1972. See, e.g., Chronological Record of Medical Care entries dated January 6, 1972 and April 9, 1972. Indeed, VA has conceded such exposure. See Rating Decision dated January 29, 2008. Furthermore, the service treatment records reflect that immediately after the 1973 Jeep accident there was concern over possible abdominal and bowel injuries. See Radiographic Report dated August 14, 1973; Clinical Record Cover Sheet dated August 15, 1973; Line of Duty Determination dated August 15, 1973. Given the foregoing, the Board finds that the evidence of record is sufficient to meet the "low threshold" outlined in McLendon to trigger VA's duty to assist in the development of the claims by providing VA examinations and nexus opinions for each claimed disorder. McLendon, 20 Vet. App. at 81-83. The Board notes that a 2008 VA examination and opinion addressed the etiology of the Veteran's headaches but only in regard to the 1973 Jeep accident. Accordingly, remand is warranted for VA examinations to determine the likely etiology of the Veteran's currently diagnosed headaches as well as his right shoulder and colon disorders. 38 C.F.R. § 3.159(c)(4)(i); see McLendon, supra. Lastly, with the exception of DD Forms 214, the Veteran's service personnel records are not of record and it is unclear from review of the electronic claims file whether the AOJ has ever sought to obtain these records. As VA is obligated to obtain service personnel records, if available, as part of its duty to assist, on remand, the AOJ must take appropriate steps to determine if such records are available, and if so associate them with the Veteran's claims file. 38 C.F.R. § 3.159(c)(2); see Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (regarding records in constructive possession of VA). Additionally, a June 2016 request from the Veteran's representative for a copy of the claims file appears to remain pending and should be fulfilled. Robinson v. McDonald, 28 Vet. App. 178, 184 (2016) (claimant has a right to inspect and copy his or her claims file). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA and non-VA health care providers, including etiology opinions from treating physicians. Also advise him that he may submit such records if he so chooses. Allow a reasonable time for reply. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e) and such notification shall be associated with the electronic claims file. 3. Contact all pertinent records repositories, to include Department of Defense if applicable, to obtain the Veteran's military personnel records. Available military personnel records should be obtained for inclusion in the electronic claims file. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e) and such notification shall be associated with the electronic claims file. 4. Thereafter, provide the Veteran's representative with a copy of the claims file pursuant to her June 2016 request (see VBMS entry with document type "Third Party Correspondence," receipt date 06/01/2016). 5. Then, schedule the Veteran for VA examinations, by appropriately qualified VA clinicians as to the nature and etiology of the Veteran's headaches, right shoulder, and colon disorders. The claims file, and a copy of this Remand, must be made available to and be reviewed by each examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed headaches, right shoulder, and colon disorders that have been present at any point since the commencement of the claim period in June 2015. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed headaches, right shoulder, and colon disorders onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, to include: (i) a 1973 Jeep accident at MacDill Air Force Base in Florida; and (ii) exposure to herbicide agents in Vietnam. Note: VA has conceded the Veteran's exposure to herbicide agents arising from his service in Vietnam. The examiner must provide a complete rationale for each opinion. 6. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.