Citation Nr: 21007698 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-04 775 DATE: February 10, 2021 ORDER Service connection for type 2 diabetes mellitus is granted. New and material evidence having been received, the claim for entitlement to service connection for a left ankle disability is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a gastrointestinal/liver disability (to include dyspepsia) is remanded. Entitlement to service connection for a psychiatric disability is remanded. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis with lumbosacral strain is remanded.  FINDINGS OF FACT 1. The competent and probative evidence of record shows that the Veteran’s type 2 diabetes mellitus is related to his exposure to contaminated water during his service at Camp Lejeune. 2. The Veteran’s claim for service connection for a left ankle disability was previously denied by a September 1998 rating decision; the Veteran did not appeal the decision, and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 3. Additional evidence received since the September 1998 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for type 2 diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The September 1998 rating decision denying service connection for a left ankle disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 3. New and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for a left ankle disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1982 to July 1994 with an earlier period of active duty for training (ACDUTRA) from December 1974 to May 1975. In August 2019, a videoconference hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. In May 2020, the Board remanded the current issues for additional development. Thereafter, in an October 2020 rating decision, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran’s service-connected lumbar spine disability (as lumbar spine degenerative arthritis with lumbosacral strain) and increased the rating for such disability to 10 percent, effective May 1, 2012 (i.e., the date VA received the Veteran’s current claim for an increased rating for such disability). Because that award did not represent a total grant of benefits sought on appeal for the Veteran’s lumbar spine disability, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran had also initiated appeals of denials of service connection for a left knee disability and for a neck disability. Following the Board’s May 2020 remand of these issues, a September 2020 rating decision granted service connection for left knee strain, and an October 2020 rating decision granted service connection for cervical spine degenerative changes/arthritis. Because these matters have been granted in full, they are not before the Board. 1. Entitlement to service connection for type 2 diabetes mellitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Some chronic diseases (to include diabetes) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned disease). 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When certain chronic diseases are at issue, such as the above-noted disease or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptoms. The Veteran contends that his current type 2 diabetes mellitus is related to his military service, including as a result of exposure to contaminated water during his service at Camp Lejeune Effective March 14, 2017, VA amended its adjudication regulations regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina from August 1, 1953, to December 31, 1987. The final rule establishes that Veterans who served at Camp Lejeune for no less than 30 days during this period, and who have been diagnosed with any of eight associated diseases (adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, liver cancer, multiple myeloma, Non-Hodgkin’s lymphoma, and Parkinson’s disease), are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. See 38 C.F.R. § 3.309(f). The Veteran’s claimed disability is not currently on the Camp Lejeune presumptive disability list. However, the U.S. Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact “incurred” during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The medical evidence of record, including the report of a September 2020 VA diabetes examination, shows that the Veteran has been diagnosed with type 2 diabetes mellitus. The Veteran’s service records document that he had service at Camp Lejeune from September to November 1983, and therefore his exposure to contaminated water during such service has been conceded. The Veteran’s service treatment records (STRs) document that in June 1993 he had an elevated glucose reading of 117, and in July 1993 the following was noted: “Doubt pathologic cause of obesity but elevated Glucose will require secondary GTT [glucose tolerance test] to exclude DM [diabetes mellitus].” Post-service, at a February 1998 VA diabetes examination, the Veteran was diagnosed with type 2 diabetes mellitus. It was noted that around August 1993, he was complaining of polyuria and polydipsia with no loss of weight, and that bloodwork at that time revealed he had borderline diabetes mellitus. It was also noted that in January 1998, bloodwork showed that his blood sugar was 400, with an assessment of diabetes mellitus. At a September 2020 VA diabetes examination, the Veteran was diagnosed with type 2 diabetes mellitus. In a September 2020 addendum, the VA examiner opined that the Veteran’s current type 2 diabetes mellitus was at least as likely as not incurred in or caused by his exposure to contaminated water at Camp Lejeune during his service, with the rationale being that there was evidence of the Veteran’s type 2 diabetes mellitus after his Camp Lejeune service as demonstrated in the medical records. The Board finds that the favorable medical opinion provided by the VA examiner in January 2020, indicating a link between the Veteran’s currently diagnosed type 2 diabetes mellitus and his exposure to contaminated water at Camp Lejeune during his military service, is supported by an adequate rationale for the conclusion reached, as this rationale took into account the pertinent circumstances of his service (to include the pertinent STRs and post-service medical evidence outlined above). Therefore, the Board affords the opinion substantial weight of probative value.   In light of the foregoing, and after resolving all doubt in the Veteran’s favor, the Board concludes that service connection for type 2 diabetes mellitus is warranted on a direct basis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left ankle disability. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. A claim for entitlement to service connection for a left ankle disability was initially denied in a September 1998 rating decision on the basis of finding that the evidence did not show a diagnosis of a left ankle disability. The AOJ notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following the decision. Therefore, the September 1998 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The evidence received since the September 1998 rating decision includes an August 2019 VA treatment record (noting the Veteran’s complaint of pain in his knees down to his ankles on both legs) and the report of a September 2020 VA knee examination (wherein he reported that he cannot run anymore because of his ankles and knees). This evidence was not before adjudicators when the Veteran’s claim was last denied by the AOJ in September 1998, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disability and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a left elbow disability. 4. Entitlement to service connection for a right elbow disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a gastrointestinal/liver disability (to include dyspepsia). 7. Entitlement to service connection for a psychiatric disability. 8. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis with lumbosacral strain. The Board cannot make a fully-informed decision on these issues at this time, because the record reflects that there are outstanding treatment records not currently associated with the claims file that may be pertinent to these claims on appeal. Specifically, VA treatment records obtained pursuant to the Board’s May 2020 remand revealed that the Veteran continued to receive primary care treatment from a private provider (Dr. U.G.) at least until October 2019; however, the most recent treatment record currently in the claims file from Dr. U.G. is dated in February 2013. In addition, an April 2019 VA treatment record noted that the Veteran had visited a non-VA provider (Dr. V., a family practice physician) on April 22, 2019; however, there are no treatment records currently in the claims file from this private provider. Furthermore, VA treatment records in August 2019 and September 2019 noted that reports of the Veteran’s treatment through the Veterans Choice Program with non-VA provider Dr. M.S. (on August 15, 2019 and on September 26, 2019, respectively) had been scanned into VistA Imaging; however, despite the September 26, 2019 report being referenced in a September 2020 addendum to a VA knee examination, there are no viewable copies of these reports from Dr. M.S. currently in the claims file. On remand, all outstanding treatment records must be associated with the claims file. Regarding the Veteran’s claimed left and right ankle disabilities (which he has alleged as being related to his military service), the Board notes that the Veteran has not undergone a VA ankle examination since April 2013, at which time no diagnoses were made for either the left ankle or the right ankle. Since that time, the evidence of record includes an August 2019 VA treatment record noting the Veteran’s complaint of pain in his knees down to his ankles on both legs, and the report of a September 2020 VA knee examination wherein he reported that he cannot run anymore because of his ankles and knees. On remand, after all outstanding treatment records have been associated with the claims file, an examination with imaging studies and a medical opinion should be obtained in order to address the etiology of any current left and right ankle disabilities (to include pain alone which results in functional impairment of earning capacity). Regarding the Veteran’s claimed left and right elbow disabilities (which he has alleged as being related to his military service and also as secondary to his service-connected lumbar spine degenerative arthritis with lumbosacral strain and his service-connected cervical spine degenerative changes/arthritis), the Veteran underwent a VA elbow examination pursuant to the Board’s May 2020 remand in September 2020. At that examination, no diagnoses were made for either the left elbow or the right elbow; however, it was noted that no imaging studies were performed, despite the Veteran’s report of episodic stiffness of both elbows. On remand, after all outstanding treatment records have been associated with the claims file, an examination with imaging studies and a medical opinion should be obtained in order to address the etiology of any current left and right elbow disabilities (to include pain alone which results in functional impairment of earning capacity). Regarding the Veteran’s claimed right knee disability (which he has alleged as being related to his military service and also as secondary to his service-connected left knee strain), the Veteran underwent a VA knee examination pursuant to the Board’s May 2020 remand in September 2020. At that examination, no diagnoses were made for the right knee; however, it was noted that no imaging studies were performed, despite the Veteran’s report of episodic right knee pain. On remand, after all outstanding treatment records have been associated with the claims file, an examination with imaging studies and a medical opinion should be obtained in order to address the etiology of any current right knee disability (to include pain alone which results in functional impairment of earning capacity). Regarding the Veteran’s claimed gastrointestinal/liver disability (which he has alleged as being related to his military service, including as a result of his conceded exposure to contaminated water at Camp Lejeune), it was noted in a July 2018 VA treatment record (obtained pursuant to the Board’s May 2020 remand) that the Veteran had an ultrasound of his liver and reportedly had some liver cysts, as ordered by his private primary care provider Dr. U.G. On remand, after all outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to address the etiology of any current gastrointestinal/liver disability. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities remaining on appeal at any time during the appeal period, including from his private primary care provider Dr. U.G. (since February 2013) (full name of provider is identified in an October 4, 2019 VA treatment record), as well as from Dr. V. (full last name of provider is identified in an April 22, 2019 VA treatment record) and any Choice-authorized providers (including Dr. M.S. (full name of provider is identified in August 15, 2019 and September 26, 2019 VA treatment records). Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present, as well as viewable copies of the reports of the Veteran’s Choice-authorized treatment with Dr. M.S. dated on August 15, 2019 and on September 26, 2019 which were scanned into VistA Imaging (as outlined above). Any negative search result should be noted in the record and communicated to the Veteran. 3. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians (or telehealth interviews if feasible) to determine the nature and etiology of any current left ankle disability, right ankle disability, left elbow disability, right elbow disability, right knee disability, and gastrointestinal/liver disability. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed (to include imaging studies for both ankles, both elbows, and the right knee), and the results reported. (a.) For each left ankle disability and right ankle disability diagnosed at any time during the period of the current claim (to include pain alone which results in functional impairment of earning capacity), the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran’s active service (or within one year of service discharge), or is otherwise related to any incident of his military service (with specific consideration given to all pertinent STRs). (b.) For each left elbow disability and right elbow disability diagnosed at any time during the period of the current claim (to include pain alone which results in functional impairment of earning capacity), the examiner must provide an opinion as to whether it is at least as likely as not that such disability: i. began during the Veteran’s active service (or within one year of service discharge), or is otherwise related to any incident of his military service (with specific consideration given to all pertinent STRs), or ii. is either caused by or aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected lumbar spine degenerative arthritis with lumbosacral strain, or iii. is either caused by or aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected cervical spine degenerative changes/arthritis. (c.) For each right knee disability diagnosed at any time during the period of the current claim (to include pain alone which results in functional impairment of earning capacity), the examiner must provide an opinion as to whether it is at least as likely as not that such disability: i. began during the Veteran’s active service (or within one year of service discharge), or is otherwise related to any incident of his military service (with specific consideration given to all pertinent STRs), or ii. is either caused by or aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected left knee strain. (d.) For each gastrointestinal/liver disability diagnosed at any time during the period of the current claim, the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran’s active service (or within one year of service discharge), or is otherwise related to any incident of his military service (with specific consideration given to all pertinent STRs and his conceded exposure to contaminated water at Camp Lejeune). A complete rationale for all opinions must be provided. If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation. The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.