Citation Nr: 21006766 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-31 357 DATE: February 5, 2021 ORDER The previously denied claim of entitlement to service connection for residuals of leg injury is reopened; to this limited extent, the appeal of that issue is granted. REMANDED Entitlement to service connection for residuals of left leg injury is remanded. Entitlement to service connection for chronic kidney disease (CKD), to include as due to exposure to ionizing radiation, is remanded. FINDINGS OF FACT 1. In an August 2004 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky denied service connection for residuals of leg injury; the RO mailed notification of its decision and of the Veteran’s appellate rights to his address of record. 2. The Veteran did not initiate an appeal of the RO’s August 2004 rating decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. In May 2015, the Veteran submitted an application to reopen his previously denied claim of entitlement to service connection for residuals of leg injury; in a September 2015 rating decision, a VARO denied the Veteran’s claim. 4. The Veteran appealed the September 2015 rating decision by submitting a timely notice of disagreement (NOD) in November 2015; the RO issued a statement of case (SOC) in March 2016, advising the Veteran of the time within which he needed to file a substantive appeal in order to perfect his appeal. 5. The Veteran did not perfect his appeal by filing a timely substantive appeal after issuance of the March 2016 SOC. 6. New evidence received since the time of the RO’s September 2015 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s August 2004 rating decision denying service connection for residuals of leg injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2004). 2. The RO’s September 2015 rating decision denying service connection for residuals of leg injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2015). 3. New and material evidence has been received to reopen the claim for service connection for residuals of leg injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1956 to December 1959. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by a VARO. In October 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In its December 2017 rating decision, the RO found that new and material evidence had been received to reopen the Veteran’s claim for service connection for residuals of leg injury. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for residuals of leg injury The Veteran first filed a claim for service connection for residuals of leg injury in February 2003. An August 2004 rating decision denied the claim. He was notified of the decision, and of his appellate rights, by letter dated that same month. No new and material evidence was received during the one-year period following mailing of notice of the decision. See 38 C.F.R. § 3.156. Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. The Veteran filed an application to reopen his previously denied claim in May 2015. A September 2015 rating decision denied the claim. The Veteran initiated an appeal of the September 2015 rating decision by filing a NOD in November 2015. In March 2016, the RO issued a SOC, advising the Veteran of the time within which he needed to file a substantive appeal in order to perfect his appeal. Thereafter, the Veteran did not perfect his appeal by filing a timely substantive appeal. As a result, the RO’s September 2015 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. 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 and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The September 2015 rating decision denied service connection for residuals of leg injury because new and material evidence had not been received to reopen the previously denied claim. The decision found that there was still no current medical evidence showing residuals of a leg injury. The evidence before VA at the time of the prior final rating decision relating to the claim consisted, in part, of the Veteran’s VA treatment records, military personnel records, and his lay statements. Here, the Board finds that new and material evidence has been received with respect to the claimed condition. A May 2017 VA treatment record shows a diagnosis of left leg pain and peripheral artery disease (PAD), and a July 2019 VA treatment record shows a diagnosis of peripheral vascular disease (PVD) related to the legs. This evidence is indicative of a current disability, which relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for residuals of left leg injury is remanded. The Veteran contends that he has residuals of a left leg injury that was incurred in or caused by service. Specifically, he contended in a February 2003 statement in support of claim that while he was stationed in Germany in 1958, something was thrown at him, the object cut an artery in his lower left leg near his ankle, and he was taken to a hospital and treated for the injury. He stated that he had current residuals from the injury, including constant pain, numbness, problems walking, and scar tissue on his leg. As to the first element of service connection, the Board notes that VA treatment records show that the Veteran has current diagnoses of left leg pain, PAD, PVD, and problems walking. Therefore, a current disability has been demonstrated. As to evidence of in-service injury or disease, the agency of original jurisdiction (AOJ) initially attempted to obtain the Veteran’s service treatment records in August 2003. A December 2003 response from the National Personnel Records Center (NPRC) indicated that the records were fire related and that there were no service treatment records. An additional report from September 2015 indicated that there were no records for the Veteran’s period of service from December 1956 to December 1959. The claims file does contain a military personnel record which indicates that the Veteran was absent from duty for 10 days beginning in August 1958. The Veteran contended in his April 2018 NOD that it was during those 10 days that he was either hospitalized or recovering from his left leg injury. In cases such as this, where the Veteran’s complete service treatment records are not available, the Board’s obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt doctrine, is heightened. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In light of the Veteran’s contentions regarding in-service injury, his report of continuing residuals, and evidence of current disability—and in view of VA’s heightened duties in this case—the Board finds that a VA medical examination and opinion is warranted. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board also notes that the claims file reflects that there are outstanding private treatment records. A July 2019 VA treatment record indicates that the Veteran received treatment from R.G., M.D. for PVD, and that Dr. G. planned to do a future procedure on his legs. The claims file contains only a single, October 2019 treatment record from Dr. G. The October 2019 record indicates that the Veteran was seen at that time for a hospital follow up. In August 2017, the Veteran provided a release so the AOJ could obtain records from Good Samaritan Hospital. Inasmuch as the claims file indicates that the Veteran received treatment from Dr. G. prior to October 2019 and does not contain a copy of records from Good Samaritan Hospital, efforts should be made to obtain them on remand. 2. Entitlement to service connection for CKD, to include as due to exposure to ionizing radiation, is remanded. The Veteran contends that he has kidney problems that are due to exposure to ionizing radiation in service. Specifically, at his October 2020 hearing, he testified that he was exposed to radiation while working with artillery shells in service. He also testified that he was exposed to radiation after service in two different contexts. The first was while working at Monsanto in the 1980s, where he worked with nuclear batteries and where there was an explosion. The second was while working with artillery shells at Wright-Patterson Air Force Base (AFB) in the 1990s. The Veteran also submitted a Radiation Risk Activity Information Sheet (RRAIS) in July 2017. In the RRAIS, the Veteran identified only his work in the 1980s at Monsanto and in the 1990s at Wright-Patterson AFB as dates and places wherein he was exposed to ionizing radiation. As an initial matter, the Board notes that the Veteran has been diagnosed with CKD. Therefore, the first element of service connection has been established. The Board emphasizes to the Veteran that service connection for a disability as due to exposure to ionizing radiation requires that a veteran be exposed during his or her active service. As the Veteran separated from service in December 1959, any possible exposure to ionizing radiation subsequent to that date (in this case, during the 1980s at Monsanto or the 1990s at Wright-Patterson AFB) would not support or be relevant to his claim. Inasmuch as some of the Veteran’s reported exposures appear to have occurred after service, and the claims file does not contain evidence that is otherwise sufficient to determine whether and to what extent he was exposed to radiation during his active service, a remand to obtain more information from the Veteran is necessary. In this regard, the Board notes that service connection for a disorder claimed to be attributable to radiation exposure during service can be established in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), affirmed, 120 F.3d. 1239 (Fed. Cir. 1997). First, there are certain types of cancer which will be presumptively service connected. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) includes a list of “radiogenic diseases” which will be service connected provided that certain conditions specified in that regulation are met. Specifically, 38 C.F.R. § 3.311(b) provides that if a Veteran has a radiogenic diseases, a dose estimate should be obtained, and the case will be referred to the VA Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran’s disease resulted from radiation exposure during service. Third, direct service connection can be established for a disorder claimed to be a result of exposure to ionizing radiation by “show[ing] that the disease or malady was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service.” See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran submitted a letter from his treating provider, A.H., D.O. in December 2020. Dr. H. stated that the Veteran had a history of a few exposures to radiation during his time in the military, and that it was possible that this could have contributed to CKD as it is known that high levels of radiation can cause kidney injury. The Board finds Dr. H.’s December 2020 letter insufficient for an award of service connection at present because Dr. H. expressed her opinion in terms of possibility, rather than probability. Nevertheless, inasmuch as Dr. H.’s letter indicates that CKD may be a radiogenic disease, and with its heightened duties in mind, the Board finds that additional development pursuant to 38 C.F.R. § 3.311 is warranted. The Board also notes that the claims file does not contain any treatment records from Dr. H. On remand, efforts should be made to obtain them. Updated records of any VA treatment should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). These matters are REMANDED for the following action: 1. Ask the Veteran to provide appropriate releases for records from Dr. G. at Premier Heart and Vascular Centers 1 in London, Kentucky, Good Samaritan Hospital in Lexington, Kentucky, Dr. H. at White House Clinics in McKee, Kentucky, and to identify and provide releases for any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any updated VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Contact the Veteran and ask that he submit as much additional detail as possible regarding his work with artillery shells during service that may VA assist in estimating the dose of ionizing radiation to which he was exposed, such as the type of shells he handled, how often he handled them, how long he performed duties that involved handling them, whether he wore a dosimetry badge or protective equipment, etc. His response, if any, must be associated with the claims file. In so doing, emphasize to the Veteran that he should limit his report to his exposure to ionizing radiation during his active service, from December 1956 to December 1959. 4. After completing the development outlined in paragraph (3), if the Veteran provides the requested information, undertake development to obtain a dose estimate and advisory medical opinion pursuant to the procedures set out at 38 C.F.R. § 3.311. The information received must be associated with the claims file. 5. Also arrange to have the Veteran scheduled for an examination of his left leg. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any left leg disabilities that have been present since June 2017 (when his application to reopen his previously denied claim for service connection was received), and offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any disability identified is consistent with an injury of the type he has described as having happened during service. In so doing, the examiner should consider and address the Veteran’s contention that an object severed his artery in his lower left leg, near his ankle, during service in 1958, and that residuals from the injury have included constant pain, numbness, problems walking, and scar tissue. The examiner should also consider the fact that the Veteran has been diagnosed with left leg pain, PVD, and PAD during the period on appeal. Inasmuch as the Veteran’s service treatment records are unavailable, the examiner should not offer an unfavorable opinion on the sole basis that there is no recorded in-service notation of the injury. Rather, the examiner should consider the nature of the in-service injury and whether any currently shown condition(s) are consistent with an injury of the type the Veteran has described. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as to why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.