Citation Nr: 21010695 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-11 151A DATE: February 25, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for obstructive sleep apnea (OSA) is denied. New and material evidence having not been received, the application to reopen the claim of service connection for diabetes mellitus, type II (DM) is granted. New and material evidence having been received, the application to reopen the claim of service connection for a lumbar spine disorder is granted. New and material evidence having been received, the application to reopen the claim of service connection for a gastrointestinal (GI) disorder is granted. Service connection for a lumbar spine disorder is denied. Service connection for a GI disorder is denied. Service connection for a genitourinary (GU) disorder is denied. Service connection for headaches is denied. REMANDED Service connection for DM. Service connection for a cardiovascular (CV) disorder. FINDINGS OF FACT 1. The Veteran had active duty from December 1954 to July 1974. 2. A claim of service connection for OSA was denied in 2004; the Veteran did not appeal, and that decision became final. The evidence received since the last final denial in 2004 does not relate to an unestablished fact necessary to substantiate the claim. 3. Claims of service connection for DM, a lumbar spine disorder, and a GI disorder were denied in 2004; the Veteran did not appeal, and those decisions became final. The evidence received since the last final denial in 2004 relates to an unestablished fact necessary to substantiate the claims. 4. The Veteran reported low back pain in service; however, symptoms were not shown to be chronic, not continuous since service, and not shown to a compensable degree within one year of service; a current lumbar spine disorder, diagnosed as degenerative joint disease (DJD), is not causally or etiologically related to service. 5. The Veteran was seen for gastritis in service; however, symptoms were not shown to be chronic; a current GI disorder, diagnosed as gastroesophageal reflux disease (GERD), was not shown in service and is not casually or etiologically related to service. 6. The Veteran was seen for GU disorders in service; however, symptoms were not shown to be chronic; a current GU disorder, diagnosed as kidney disease, urinary incontinence, and diabetic nephropathy, is not causally or etiologically related to service. 7. The Veteran reported headaches in service; however, they were determined to have resolved; a current diagnosis of headaches is not shown. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of service connection for OSA. 38 U.S.C. §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 2. New and material evidence has been received to reopen the claim of service connection for DM. 38 U.S.C. §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. New and material evidence has been received to reopen the claim of service connection for a low back disorder. 38 U.S.C. §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 4. New and material evidence has been received to reopen the claim of service connection for a GI disorder. 38 U.S.C. §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 5. A lumbar spine disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 6. A GI disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 7. A GU disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 8. Headaches were not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In September 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. New and Material Evidence to Reopen the Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be considered “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). OSA In 2004, the Veteran’s claim of service connection for OSA was denied by the RO due to the absence of an in-service incurrence. The evidence at the time included clinical records, service treatment records (STRs), and lay statements. He did not appeal, and that decision became final. The evidence received since the last final denial in 2004 consists of clinical records, lay statements, STRs, and a hearing transcript. While clinical records show treatment for OSA, they do not show that it began in service. STRs are also absent of complaints, diagnoses, or treatment for OSA. As to the Veteran’s lay statements and testimony, these statements essentially duplicated his contentions all along. As the RO had previously considered the nature of his contentions, this evidence is not “new” as required under the applicable regulatory and statutory provisions. In sum, the evidence does not show or suggest that OSA began in service. Therefore, the application to reopen the claim for service connection is denied. DM In 2004, the Veteran’s claim of service connection for DM was denied by the RO due to the absence of an in-service incurrence. The evidence at the time included clinical records, STRs, and lay statements. He did not appeal, and that decision became final. The evidence received since the last final denial in 2004 consists of clinical records, STRs, lay statements, and a hearing transcript. Specifically, the Veteran testified that he served aboard a ship that was stationed within 12 nautical miles off the coast of the Republic of Vietnam. This evidence is new as it was not of record at the time of the prior rating decision. Moreover, the evidence is material as it relates to the unestablished element of an in-service incurrence. Therefore, the application for service connection is reopened, and the appeal is granted to this extent. Low Back Disorder In 2004, the Veteran’s claim of service connection for a low back disorder was denied by the RO due to the absence of a nexus between a current disorder and an in-service incurrence. The evidence at the time included clinical records, STRs, and lay statements. He did not appeal, and that decision became final. The evidence received since the last final denial in 2004 consists of clinical records, lay statements, STRs, and a hearing transcript. Specifically, a March 2013 VA examination provided an opinion as to whether a low back disorder was incurred in service. This evidence is new as it was not of record at the time of the prior rating decision. Moreover, the evidence is material as it relates to the unestablished element of a nexus between a current disorder and an in-service incurrence. Therefore, the application for service connection is reopened, and the appeal is granted to this extent. GI Disorder In 2004, the Veteran’s claim of service connection for a GI disorder was denied by the RO due to the absence of a nexus between a current disorder and an in-service incurrence. The evidence at the time included clinical records, STRs, and lay statements. He did not appeal, and that decision became final. The evidence received since the last final denial in 2004 consists of clinical records, lay statements, STRs, and a hearing transcript. Specifically, a March 2013 VA examination provided an opinion as to whether a gastrointestinal disorder was incurred in service. This evidence is new as it was not of record at the time of the prior rating decision. Moreover, the evidence is material as it relates to the unestablished element of a nexus between a current disorder and an in-service incurrence. Therefore, the application for service connection is reopened, and the appeal is granted to this extent. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Low Back Disorder As an initial matter, DJD is a chronic disorder under 38 C.F.R. § 3.309. Therefore, both direct and presumptive service connection will be addressed. Turning first to direct service connection, DJD was diagnosed in 2005 and low back pain was diagnosed in 2008. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in July 1956, the Veteran reported back pain after moving a barrel of wax; however, his back was normal at separation 20 years later. Nevertheless, as he reported back pain in service, the second element of direct service connection is met. As to nexus, in a March 2013 VA examination, the Veteran complained of complained of back pain aggravated by prolonged sitting, standing, walking, and bending. Upon examination, the examiner opined that a lumbar spine disorder was less likely than not incurred in service. The examiner reasoned while a lumbar strain involved muscles and ligaments, DJD and spondylosis were degenerative processes involving discs and vertebral bodies. The examiner also noted that the Veteran’s in-service lumbar strain had resolved. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of direct service connection. Turning to presumptive service connection, the Veteran was discharged from service in 1974 but was not diagnosed with DJD until 2005. As he was discharged in 1974 and symptoms of DJD were not identified until 2005, over 30 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 1974 and did not seek treatment for DJD of the lumbar spine until 2005. Therefore, this evidence does not support presumptive service connection on a “manifest within one-year from separation” basis, and the medical evidence does not support presumptive service connection is not supported by the medical evidence. GI Disorder As to a current disorder, GERD was diagnosed in 2002. Therefore, the first element of direct service connection is met. As to an in-service incurrence, in an October 1973, the Veteran reported stomach pains and was diagnosed with gastritis; however, his stomach was normal at separation. Nevertheless, as he complained of stomach pain in service, the second element of service connection is met. As to nexus, in a March 2013 VA examination, the Veteran complained of infrequent episodes of epigastric distress, dysphagia, reflux, and nausea. Upon examination, the examiner opined that a GI disorder was less likely than not incurred in service. The examiner reasoned that there was no nexus in the pathophysiology of GERD and gastritis. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of service connection. GU Disorder As an initial matter, the Veteran’s GU disorder has been found to be secondary to DM. However, as he is not service connected for DM, secondary service connection is not for application. Therefore, service connection for a GU disorder will only be addressed on a direct basis. As to a current disorder, a left renal cyst was noted in 2001, urinary incontinence was diagnosed in 2002, a history of a GU disorder was noted in 2010, kidney disease and diabetic nephropathy were diagnosed in 2013, and an unspecified kidney injury was noted in 2016. Therefore, the first element of service connection is met. As to an in-service incurrence, STRs show that the Veteran was diagnosed with urethritis in November 1955, reported a history of venereal disease (VD) in 1960, and was diagnosed with a urinary tract infection (UTI) in February 1970. However, no urinary disorders were noted at separation. Nevertheless, as he was diagnosed with GU disorders in service, the second element of service connection is met. As to nexus, in a March 2013 VA examination, the Veteran complained of a voiding dysfunction requiring absorbent materials which required changing two to four times a day. Upon examination, the examiner opined that a GU disorder was less likely than not incurred in service. The examiner reasoned that the Veteran’s pyuria, UTI, VD, urethritis, gonococcus, and epididymitis in-service were transient infections treated with antibiotics. Further, the examiner noted that the kidney cyst shown after service was a benign condition. The examiner also explained that the current renal disorder was more likely due to DM, which was not service connected. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of service connection. Headaches The Veteran contends that headaches were incurred in service. He was diagnosed with vascular headaches in 1965; however, the March 2013 VA examiner noted that in-service headaches had resolved. Further, the Veteran testified that he developed headaches after being involved in a car accident in 1971. While STRs documented the car accident, they are absent of complaints, diagnoses, or treatment for headaches after the car accident. Moreover, headaches were not shown at separation. In addition, clinical records are absent of complaints, diagnoses, or treatment for headaches. Specifically, the Veteran sought treatment for a cardiovascular disorder, OSA, and DM, among others but did not report headaches. Therefore, a current disorder is not shown, and the first element of service connection is not met. The Board has considered the Veteran’s lay statements and testimony that these disorders began in service. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer etiologies of these disorders. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The issues of service connection for DM and a CV disorder were previously impacted by a stay regarding naval service and presumed herbicide exposure. Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). Specifically, on January 29, 2019, the Federal Circuit held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 included the territorial sea of the Republic of Vietnam and was not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en bane) (finding that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements). In March 2019, the Procopio stay was lifted. The Court in Procopio announced a rule of law conferring new significance to the 12 nautical mile demarcation. In this case, the Veteran’s STRs reveal service on the U.S.S. Atka from September 1962 to March 1963 and the U.S.S. William C. Lawe from 1965-1970. However, it is not clear whether the U.S.S. Atka or U.S.S. William C. Law served within the 12 nautical mile territorial sea of the Republic of Vietnam. As such, further development is required. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent VA and private treatment records, and associate them with the claims file. 2. Associate all military personnel records with the claims file. 3. In light of Procopio, use appropriate resources to determine if the U.S.S. Atka, the U.S.S. William C. Lawe, or any other vessels the Veteran was assigned to, was within 12 nautical miles territorial sea of the Republic of Vietnam. All attempts at verification should be associated with the claims file. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.