Citation Nr: 21007857 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-38 198 DATE: February 10, 2021 ORDER New and material evidence has been submitted to permit reopening the Veteran’s claim for entitlement to service connection for pyloric ulcer channel ulcer and malnutrition. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a heart condition is denied. Entitlement to service connection for an audiological condition is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected tinea versicolor is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) and pyloric ulcer channel ulcer malnutrition, previously claimed as a stomach condition, is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a sinus condition is remanded. Entitlement to service connection for a headache condition is remanded. FINDINGS OF FACT 1. Evidence received since the August 1959 rating decision denying service connection for a stomach condition is neither cumulative nor redundant of the evidence of record at the time of the August 1959 final decision and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact 2. The preponderance of the evidence is against finding that the Veteran’s left knee condition began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran’s heart condition began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran has an audiological condition that began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for pyloric ulcer channel ulcer and malnutrition based on new and material evidence have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for a heart condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for an audiological condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1954 to February 1956 and from April 1956 to April 1958. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). This matter was most recently before the Board in January 2020. The Board remanded on these issues to seek additional VA treatment records that appeared to be missing from the record. A review of the file reflects that these records were sought and obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 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 the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted 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 the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to permit reopening the Veteran’s claim for entitlement to service connection for pyloric ulcer channel ulcer and malnutrition The Veteran filed a claim for service connection for a stomach condition in June 1959. At that time, the evidence of record available prior to adjudication included his Reports of Medical Examination from his time in service, as well as a VA examination. The Veteran provided no further evidence pertaining to his claim. The AOJ denied the Veteran’s claim for service connection for a stomach condition in an August 1959 rating decision, indicating that no stomach condition was shown during the June 1959 VA examination. The Veteran was provided notice of this decision and his appellate rights by letter dated August 18, 1959. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§ 7104(b); 7252 (2012). In September 1977, the Veteran filed a second claim for stomach trouble for pension purposes. In connection with his claim, the following pieces of evidence were associated with the file: a lay statement contending that his stomach condition rendered him unable to work a full day, VA treatment records documenting a diagnosis of a pyloric channel ulcer with partial obstruction, and a Report of Medical Examination for Disability Evaluation dated January 1978. The AOJ denied the Veteran’s claim for pension as a result of a stomach condition in an April 1978 rating decision, indicating that it did not preclude his ability to work. This was upheld by the Board in an October 1978 decision. The Veteran sought to reopen his claim for “service-connected compensation for ulcers” in December 2000, which the AOJ interpreted to mean his claim for non-service connected pension and subsequently granted in a December 2000 decision. Evidence submitted since the August 1959 final AOJ rating decision for service connection for a stomach condition includes the lay statement contending that his stomach condition rendered him unable to work a full day, VA treatment records documenting a diagnosis of a pyloric channel ulcer with partial obstruction, service treatment records (STRs) for periods of service April 1954 through February 1956 and from April 1956 through April 1958, a doctor’s statement documenting a diagnosis of GERD, and CAPRI VA treatment records. The Board finds that the information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening his claim. Specifically, the new evidence of record includes two diagnoses which may cause stomach problems – GERD and a pyloric channel ulcer with partial obstruction – which raises the possibility of substantiating his claim as it provides a diagnosis for his condition. Therefore, the Board finds that the evidence of record submitted since August 1959 pertaining to the Veteran’s stomach condition is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for a left knee condition The Veteran filed his claim for entitlement to service connection for a left knee condition in October 2013. The limited evidence of record reflects that he has complained of bilateral knee pain to VA physicians. CAPRI VA treatment records note that he has crepitations of both knees; these records include a note for “knee arthralgia,” but it is unclear which knee is being referenced. However, the Board is unable to grant entitlement to service connection for a left knee condition because the Veteran has not suggested an in-service event that may have caused his left knee condition. His service treatment records (STRs) are silent for any complaints of injury to or treatment for his left knee, though the Board acknowledges the Veteran did have injury to his right knee. Furthermore, there are no lay statements or notations in his medical records to suggest that he suspects a particular in-service event caused his left knee condition. The Board also observes that he denied any knee pain at separation and there appears to be no record of left knee problems until two decades post-service. While the Board acknowledge that the Veteran, in his substantive appeal (VA Form 9) noted that both knees were injured in his inservice accident, such lay assertions contradicts the actual STRs of record, which explicitly notes treatment for the only the right side. As such, the Board does not find that a plausible inservice injury/incurrence has been raised by the record, and as such, service connection cannot be warranted. The Board further notes that, as there is no lay or medical evidence of persistent/ recurrent symptoms of disability since service or competent evidence suggesting an association with service, VA’s duty to provide examination or opinion has not been triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a conclusory generalized statement that a service illness caused his present medical problems was insufficient to trigger duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case). There is no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). Given the lack of a plausible in-service event and lack of evidence suggesting an association with service, the Board must deny the Veteran’s claim for entitlement to service connection for a left knee condition. 3. Entitlement to service connection for a heart condition Likewise, with regards to the Veteran’s claim for a heart condition, while the record reflect a present diagnosis of coronary artery disease, no evidence has been presented or alleged to assert any inservice incident or incurrence, requisite for service connection. The Veteran’s STRs are silent for any indication of a heart condition. On his separation Report of Medical History and Report of Medical Examination, no issues with his heart were recorded. The available medical records associated with the file do not appear to reference any heart condition until 2014. The Veteran was asked to provide private treatment records for any treatment he received prior to this date since service, but he indicated no additional information was available. The Board considered the Veteran’s claim for entitlement to service connection for a heart condition under a theory of presumptive service connection based on herbicide agent exposure, as the record suggests he has foreign service. However, his dates of service do not correspond with the dates set by statute as warranting entitlement to service connection on a presumptive basis. As such, this theory is inapplicable. The Board notes that, as there is no lay or medical evidence of persistent/recurrent symptoms of disability since service or competent evidence suggesting an association with service, VA’s duty to provide examination or opinion has not been triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a conclusory generalized statement that a service illness caused his present medical problems was insufficient to trigger duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case). There is no doubt of material fact to be resolved in the appellant’s favor. 38 U.S.C. § 5107(b). Given the lack of a plausible in-service event and lack of evidence suggesting an association with service, the Board must deny the Veteran’s claim for entitlement to service connection for a heart condition. 4. Entitlement to service connection for an audiological condition The Veteran filed his claim for entitlement to service connection for an audiological condition in October 2013. The limited evidence of record does not contain any complaints or treatment for any audiological condition or hearing loss. Moreover, the Veteran has not articulated with any specificity his alleged symptoms related to this condition, nor are they referenced anywhere in the record. The Board is unable to grant entitlement to service connection for an audiological condition because the Veteran has also failed to suggest an in-service event that may have caused the audiological condition he claims. His STRs are silent for any complaints or treatment for an audiological condition or hearing loss during service. Furthermore, there are no lay statements or notations in his medical records to suggest that he suspects a particular in-service event caused an audiological condition. The Board does observe, though, that the Veteran did not undergo an audiological evaluation at separation as part of his medical examination. Nonetheless, the Board further notes that, as there is no lay or medical evidence of persistent/recurrent symptoms of disability since service or competent evidence suggesting an association with service, VA’s duty to provide examination or opinion has not been triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a conclusory generalized statement that a service illness caused his present medical problems was insufficient to trigger duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case). There is no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). Given the lack of a plausible in-service event and lack of evidence suggesting an association with service, as well as the apparent lack of current diagnosis, the Board must deny the Veteran’s claim for entitlement to service connection for an audiological condition. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected tinea versicolor is remanded. A review of the file appears to indicate that the Veteran was originally scheduled to appear for a VA examination that assessed the severity of his tinea versicolor around March 2020. However, due to the Covid-19 pandemic, it seems as though his examination was postponed to a future date. The Veteran’s last VA examination for his skin condition occurred in July 2014, so a more contemporaneous examination is deemed not only relevant, but necessary. To that end, the Board will refrain from adjudicating this issue until the Veteran has received a new VA examination for his tinea versicolor and it is associated with the file. 2. Entitlement to service connection for GERD and pyloric ulcer channel ulcer malnutrition, previously claimed as a stomach condition, is remanded. The evidence of record reflects that the Veteran has a diagnosis of GERD and a pyloric channel ulcer with partial obstruction. The Board has decided to reopen his claim after it was previously denied for lack of a current diagnosis in June 1959. In 1977, records indicate that by that time, he had a diagnosis of a pyloric channel ulcer with partial obstruction. Given the development of this condition, as well as the Veteran’s in-service documented complaints of stomach trouble, epigastric distress, cramping, and vomiting, the Board will remand for an etiology opinion that determines whether it is at least as likely as not that the Veteran’s GERD and pyloric channel ulcer began during his active duty service. 3. Entitlement to service connection for a right knee condition The record reflects that the Veteran was seen in February 1955 for a right knee injury that had occurred four months prior. He was given a prescription for hexavitamin. Knee problems were not referenced on his separation Report of Medical Examination or Report of Medical History, nor were any knee problems found on examination in April 1978 (though the physician did report he experienced generalized weakness). Nonetheless, he currently has significant complaints of knee problems referenced throughout his CAPRI VA treatment records. Based on the documented in-service right knee injury as well as his present-day complaints of knee problems, the Board will remand for an etiology opinion that considers whether his in-service knee injury caused his current right knee condition. 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran filed his claim for entitlement to service connection for a mental condition in October 2013. The limited evidence of record suggests that in September 2014, the Veteran was facing homelessness and endorsed experiencing “serious anxiety/tension” in the previous 30 days.” Other than this reference, the record does not appear to contain any further endorsements or references to a psychiatric condition. Indeed, other treatment notes from the same time frame mark “none” when asked if there are psychological factors affecting this Veteran. The Veteran answered in the negative when asked if he thinks he has a current psychiatric or emotional problem other than alcohol or drug use. The Veteran has not articulated with any specificity in-service event that may have caused an acquired psychiatric condition. Moreover, it is not apparent from the evidence of record that he has a current diagnosis for an acquired psychiatric condition. His STRs are silent for any complaints or treatment for a mental health condition. However, on his separation Report of Medical History, the Veteran endorsed experiencing nervous problems; the examiner wrote “general nervousness, at times causing indigestion.” Nonetheless, based on his in-service endorsement of nervous trouble, as well as his endorsements of serious anxiety, the Board will remand for a VA examination that analyzes the current nature and etiology of his condition. 5. Entitlement to service connection for a sinus condition is remanded. STRs reflect that during the Veteran’s active duty service, he was seen in sick call on numerous occasions for what were ultimately diagnosed as head colds. Other treatment notes from this time document that he experienced nasal congestion and upper respiratory infections. In his present-day CAPRI VA treatment records, there is only one occasion when he referenced having allergies. However, given the number of times he was seen during service for conditions that may be related to a sinus condition, the Board will remand to determine if these acute head colds are, in fact, related to any present-day allergies or a sinus condition. 6. Entitlement to service connection for a headache condition is remanded. The record reflects that the Veteran complained of headaches on at least two occasions during his active duty service. Additionally, on his separation Report of Medical History, he endorsed experiencing frequent or severe headaches. The Board notes that his recent VA treatment records are silent for any complaints of headaches; however, the Board acknowledges that headaches are often treated with over-the-counter medications and individuals may not necessarily seek treatment for them. To this end, the Board will remand for an examination that considers whether the Veteran has a current headache condition and, if so, if it is etiologically related to the headaches he experienced during his active duty service. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from October 2018 to the present. 2. Then, the Veteran should be rescheduled for a new VA examination to determine the current nature and severity of his tinea versicolor. 3. The Veteran should also be afforded an appropriate VA examination in order to determine the current nature and etiology of his GERD and pyloric ulcer channel ulcer malnutrition. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a current diagnosis of GERD and/or pyloric ulcer channel ulcer malnutrition, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such GERD and/or pyloric ulcer channel ulcer malnutrition occurred in or is otherwise etiologically related to the Veteran’s military service, to include his in-service complaints of stomach trouble, epigastric distress, cramping, and vomiting. The examiner should consider the following: • VA treatment records dated 1977 and 1978, previously noting a spasm of the lower esophagus and a pyloric channel ulcer with partial obstruction; • the March 1978 Report of Medical Examination, documenting a diagnosis of pyloric channel ulcer with partial obstruction and malnutrition; • STRs documenting complaints of stomach trouble, epigastric distress, cramping, and vomiting; • VA treatment records documenting GERD; and • VA treatment records associated with the file in March 2020. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his right knee condition. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a right knee condition and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such right knee condition occurred in or is otherwise etiologically related to the Veteran’s military service, to include his in-service right knee injury. The examiner should consider the following: • VA treatment records dated 1978, noting no definite abnormality of the right knee; • the March 1978 Report of Medical Examination, documenting weakness in the legs and locking of knee joints; • STRs documenting a right knee injury; • VA treatment records documenting pain in his knees; and • VA treatment records associated with the file in March 2020. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has an acquired psychiatric disorder and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such acquired psychiatric disorder occurred in or is otherwise etiologically related to the Veteran’s military service, to include his endorsements of nervousness at separation. The examiner should consider the following: • the Veteran’s STRs – namely, his separation Report of Medical History – stating that he experiences nervous trouble; and • the September 2014 endorsement that he experiences serious anxiety. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of any sinus condition. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a sinus condition and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such sinus condition occurred in or is otherwise etiologically related to the Veteran’s military service, to include the various treatments for head colds, upper respiratory infections, and congestion he received in service. The examiner should consider the following: • the Veteran’s STRs documenting complaints and treatment for head colds, upper respiratory infections, and nasal congestion; and • the Veteran’s October 2014 endorsement that he planned on seeking treatment for allergies. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 7. The Veteran should also be afforded an appropriate VA examination in order to determine the current nature and etiology of his headache condition. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a headache condition and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such headache condition occurred in or is otherwise etiologically related to the Veteran’s military service, to include his frequent complaints of headaches during his active duty service. The examiner should consider the Veteran’s STRs, documenting in-service complaints of headaches and his separation Report of Medical History where he marked “yes” when asked if he experiences frequent or severe headaches. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   8. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.