Citation Nr: 21008403 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-24 256 DATE: February 16, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left ankle disability is reopened. REMANDED Entitlement to service connection for a left ankle disability, as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for a right knee disability, as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for a left knee disability, as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for a right hip disability, as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for a left hip disability, as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for a lumbar spine disability, as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for rectal polyps, to include as due to ionizing radiation exposure, is remanded. Entitlement to service connection for esophageal polyps, to include as due to ionizing radiation exposure, is remanded. FINDINGS OF FACT 1. The August 2015 rating decision denying service connection for a left ankle disability was not appealed and became final. 2. The additional evidence received since that last final decision was not previously submitted to agency decisionmakers, is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for a left ankle disability. CONCLUSIONS OF LAW 1. The August 2015 rating decision, which denied the Veteran’s claim of entitlement to service connection for a left ankle disability, is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. 2. New and material evidence has been received since the August 2015 rating decision to reopen the service connection claim for a left ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1976 to January 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) In January 2020, the Veteran before the undersigned Veterans Law Judge at a virtual telehearing. A copy of the transcript has been associated with the claims file. Additionally, the Board notes that the RO reopened the claim for service connection for a left ankle disability, finding that new and material evidence had been submitted and addressing the issue on the merits in the December 2017 rating decision. Nevertheless, the Board must determine of its own accord whether reopening is warranted in order to address the merits of the underlying claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 1. New and material evidence having been received, the claim of entitlement to service connection for a left ankle disability is reopened. Service connection for a left ankle disability was denied on the merits in an August 2015 rating decision. A letter dated that same month notified the Veteran of the decision and of his appellate rights, in accordance with 38 C.F.R. § 19.25. The Veteran did not appeal the RO’s August 2015 denial of service connection for the left ankle disability. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (setting forth requirements and time limits for initiating and perfecting an appeal). Moreover, new and material evidence was not received within one year of the August 2015 rating decision; the evidence on which the reopening of this claim is based is not dated until several years later, as shown below. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds). Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claim. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (a); 20.1103. New and material evidence has been received concerning the issue of entitlement to service connection for a left ankle disability in the form of the Veteran’s sworn testimony at his January 2020 Board hearing concerning the potential relationship between his service-connected right ankle condition and his claimed left ankle disability, as well as treatment records from his VA orthopedist indicating a potential connection between the service-connected right ankle condition and the Veteran’s current orthopedic pathologies, including his left ankle disorder. See July 2018 VA Physical Medicine and Rehabilitation Outpatient Treatment Note from S.P.S., D.O. See also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (reflecting that new evidence is sufficient reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of the disability at issue). At the time of the August 2015 rating decision, such evidence was not of record. Accordingly, this evidence relates to an unestablished fact necessary to reopen the claim and raises a reasonable possibility of establishing service connection. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010) (noting that the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial, which is a “low threshold”). Therefore, reopening is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, further development is necessary prior to adjudication of the reopened claim for service connection for a left ankle disability, as well as the claims for service connection for a right knee disability, a left knee disability, a right hip disability, a left hip disability, a lumbar spine disability, rectal polyps, and esophageal polyps.   1. Entitlement to service connection for a left ankle disability, as secondary to the service-connected right ankle disability, is remanded. 2. Entitlement to service connection for a right knee disability, as secondary to the service-connected right ankle disability, is remanded. 3. Entitlement to service connection for a left knee disability, as secondary to the service-connected right ankle disability, is remanded. 4. Entitlement to service connection for a right hip disability, as secondary to the service-connected right ankle disability, is remanded. 5. Entitlement to service connection for a left hip disability, as secondary to the service-connected right ankle disability, is remanded. 6. Entitlement to service connection for a lumbar spine disability, as secondary to the service-connected right ankle disability, is remanded. The Veteran contends that his current disabilities of the left ankle, left and right knees, left and right hips, and lumbar spine were caused or aggravated by his service-connected right ankle disability and therefore that service connection for these disorders is warranted on a secondary basis. See, e.g., June 2020 Board Hearing Transcript. See also 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (stating that establishing secondary service connection requires evidence showing that a current disability was caused or aggravated by a service-connected disability). Although the Veteran was afforded VA examinations in November 2017 to diagnose and determine the etiology of his claimed conditions, the Board finds the accompanying medical opinions to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).   In this regard, in finding that the Veteran’s diagnosed left ankle, bilateral knee, bilateral hip, and lumbar spine disabilities were not “proximately due to or the result of” his service-connected right ankle disorder, the November 2017 VA examiner stated simply that the conditions were “separate entit[ies]” and that “medical literature does not support a medical relationship.” See November 2017 VA Knee and Lower Leg Conditions, Back (Thoracolumbar Spine) Conditions, and Hip and Thigh Conditions Disability Benefits Questionnaires (DBQs) and accompanying VA Medical Opinion DBQs. No further comment was provided. See id. These bare assertions, without citation to medical treatises or reference to any medical or lay evidence of record, are insufficient to support the negative determinations, especially in light of subsequent medical records from the Veteran’s VA orthopedist reflecting the “potential upstream effects” of his right ankle disability on his left ankle, knees, hips, and back. See July 2018 VA Physical Medicine and Rehabilitation Outpatient Treatment Note from S.P.S., D.O. Additionally, the November 2017 VA Medical opinion DBQs are inadequate in that they do not address the issue of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (finding that a VA opinion addressing secondary service connection was inadequate as it did not address the issue of aggravation); see also Allen, 7 Vet. App. 439; 38 C.F.R. § 3.310. Accordingly, because the VA examinations and opinions of record are inadequate, remand is required to afford the Veteran new VA examinations and opinions. See Barr, 21 Vet. App. at 312; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (“Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale].”).   7. Entitlement to service connection for rectal polyps, to include as due to ionizing radiation exposure, is remanded. 8. Entitlement to service connection for esophageal polyps, to include as due to ionizing radiation exposure, is remanded. The Veteran contends that his rectal and esophageal polyps were caused by his exposure to ionizing radiation while participating in the cleanup of nuclear testing sites at Enewetak Atoll in the Marshall Islands between August 1977 and April 1978. See, e.g., November 2015 Statement in Support of Claim (VA Form 21-4138); June 2020 Board Hearing Transcript. The Board observes that service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d, 120 F.3d. 1239 (Fed. Cir. 1997). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed Veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A “radiation-exposed” Veteran is one who participated in a radiation-risk activity. A “radiation-risk activity” includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other “radiogenic” diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed Veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311 (b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is “at least as likely as not” that the disease resulted from in-service radiation exposure or whether there is “no reasonable possibility” that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311 (c)(1). Third, direct service connection can be established by showing 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). Service connection claims based on in-service exposure to radiation may be addressed under 38 C.F.R. § 3.309(d) or § 3.311. Here, there is no evidence or assertion indicating that the Veteran engaged in one of the specific radiation risk activities set forth in 38 C.F.R. § 3.309(d)(2) (onsite participation in atmospheric detonation of a nuclear device). Accordingly, the presumptive provisions of 38 C.F.R. § 3.309 are not for application. Moreover, the Veteran’s rectal and esophageal polyps are not among the diseases specified in either 38 C.F.R. § 3.309(d) or 38 C.F.R. § 3.311(b). However, the Veteran’s VA medical records contain a treatment note reflecting the opinion of his VA provider that “there could be a connection between [the Veteran’s] exposure to radioactive debris and his [polyps].” See September 2010 VA Mental Health Rehabilitation Note. Additionally, the Board notes that the Veteran’s available service personnel records (SPRs) do not reflect service in the South Pacific generally or at Enewetak Atoll specifically. Nevertheless, the Veteran is competent to report what occurred during his active service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Additionally, the Board finds the Veteran’s statements and testimony in this regard to be credible, as his available service treatment records (STRs) show that he received medical treatment at the “USAF Clinic Enewetak” on multiple occasions between November 1977 and January 1978. See Chronological Record of Medical Care dated from November 1977 to January 1978. Accordingly, given the evidence establishing the Veteran’s presence on Enewetak Atoll during his active service, on remand, the agency of original jurisdiction (AOJ) should undertake any appropriate attempt to verify the nature and extent of the Veteran’s service at Enewetak Atoll during the period from August 1977 to April 1978. Further, in light of the medical evidence of record indicating a possible connection between the Veteran’s asserted radiation exposure and his diagnosed esophageal and rectal polyps, discussed above, upon remand, the AOJ is to undertake all steps necessary for review and action pursuant to 38 C.F.R. § 3.311, to include referral to the Under Secretary for Health, through the Under Secretary for Benefits, for preparation of a dose estimate, to the extent feasible, based on available methodologies. In this regard, the Board emphasizes that although rectal and esophageal polyps are not radiogenic diseases as set forth in 38 C.F.R. § 3.311, the Veteran may nevertheless prove entitlement to service connection on a direct basis based on actual exposure. See Combee, 34 F.3d at 1043. Finally, given the evidence suggesting that the Veteran has current disabilities that are potentially related to an incident in active service, a VA examination is required. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. Undertake any appropriate development necessary to attempt to verify the nature and extent of the Veteran’s service at Enewetak Atoll, to specifically include during the period from August 1977 to April 1978. All reasonable attempts should be made to obtain such records. All requests and responses received must be associated with the claims file. If the records do not exist or further efforts to obtain them would be futile, the RO must issue a formal finding of unavailability and notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 3. Undertake all necessary steps to develop the Veteran’s claim in accordance with the provisions of 38 C.F.R. § 3.311, to specifically include obtaining dosage estimate from the Under Secretary for Health and referral to the Under Secretary for Benefits. 4. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for VA examinations with an appropriate clinician(s), other than the VA examiner who performed the November 2017 VA musculoskeletal examinations, to assist in determining the nature and etiology of the Veteran’s claimed left ankle, left and right knee, left and right hip, and lumbar spine disabilities. The examinations may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic.   The entire claims file and a copy of this REMAND must be made available to the examiner(s) prior to the examinations. The examiner(s) must note in the examination report that the evidence in the claims file has been reviewed. The examiner(s) should elicit a full history from the Veteran. The examinations should include any necessary diagnostic testing or evaluation. All pertinent symptomatology should be reported in detail. After reviewing the file and examining the Veteran, the examiner(s) should diagnose and describe all current disorders affecting the Veteran’s left ankle, left and right knees, left and right hips, and lumbar spine found to be present. As to EACH identified disorder, the examiner(s) must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disability affecting the left ankle, left knee, right knee, left hip, right hip and/or lumbar spine was either (a) caused by, or (b) aggravated by (that is, made worse by) the Veteran’s service-connected right ankle disability, to include as due to altered gait patterns and as the result of falls caused by the right ankle condition. NOTE: With respect to the question concerning aggravation, the examiner is advised that aggravation does not require that there be “permanent worsening” of the nonservice-connected disability. Ward v. Wilkie, 31 Vet. App. 233 (2019).   For the purposes of this opinion, the examiner must consider and address the Veteran’s reports regarding onset and duration of his symptoms, as well as the statement of his VA treating physician concerning the potential effect of his right ankle injury on his knees, hips, and back. See, e.g., June 2020 Board Hearing Testimony; July 2018 VA Physical Medicine and Rehabilitation Outpatient Treatment Note from S.P.S., D.O. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the examiner must consider all lay assertions. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of any identified disability. If the Veteran’s reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner(s) must provide a reason for doing so. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5. Schedule the Veteran for a VA examination with an appropriate clinician to assist in determining the nature and etiology of the Veteran’s claimed rectal and esophageal polyps. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. All pertinent symptomatology should be reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available private and VA medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s rectal and esophageal polyps had their clinical onset during active service or are related to any in-service disease, event, or injury, to include any verified ionizing radiation exposure. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the examiner must consider all lay assertions, to include any allegations of continuity of symptomatology. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of any identified disability. If the Veteran’s reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner(s) must provide a reason for doing so. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 6. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.