Citation Nr: 21010773 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-15 143 DATE: February 25, 2021 ORDER As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for a left knee disorder is granted. REMANDED Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for non-Hodgins lymphoma (NHL) is remanded. Entitlement to service connection for bilateral peripheral neuropathy is remanded. Entitlement to service connection for joint and muscle pain is remanded. Entitlement to service connection for a cardiovascular disorder is remanded. Entitlement to service connection for fatigue and sleep disturbances is remanded. Entitlement to service connection for multiple cerebral micro-hemorrhages is remanded. Entitlement to service connection for a neuropsychological disorder is remanded. Entitlement to service connection for bilateral cataracts is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for hypertension disability is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. In a May 2007 rating decision, the RO denied the Veteran’s claim for service connection for a left knee disorder; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the May 2007 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 knee disorder, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The May 2007 rating decision denying service connection for a left knee disorder is final; as new and material evidence has been received, the claim to reopen the previously denied claim for service connection for a left knee disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1976 to July 1999. 1. The claim to reopen the previously denied claim for service connection for a left knee disorder In May 2007, the RO denied the Veteran’s claim of service connection for a left knee disorder because the evidence demonstrated that his current disability was related to a post-service injury. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision. Therefore, the May 2007 rating decision became final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156, 19.20, 19.21, 19.52, 20.1103 (2007). 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. Since the May 2007 rating decision, the record contains the Veteran’s lay assertions that his current left knee disorder had an onset during his period of service after his right knee surgery in 1995, and he sought treatment for bilateral knee problems shortly prior to his separation from service. The Veteran has also provided lay assertions that his left knee disorder was caused and worsened by his service-connected right knee disability. See July 2016 VA knee examination report; September 2016 statement in support of the case; and June 2020 Informal hearing presentation. The Board must presume that the Veteran’s statements are true for the purpose of determining whether to reopen the Veteran’s claim. See Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record also contains additional private and VA medical records that show the Veteran’s left knee disorder, includes degenerative arthritis, status post total knee replacement. This evidence raises a reasonable possibility of substantiating the claim that the Veteran’s left knee disorder is related to his period of service. The Board therefore finds that this evidence is new and material, and the Veteran’s claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability is remanded. The Veteran seeks entitlement to service connection for a left knee disorder. He contends that he first developed left knee problems during his period of service as a result of his right knee surgery in 1995 and subsequent right knee problems. In the alternative, he contends that his current left knee disorder is secondary to his service-connected right knee disability. The record contains a June 2016 VA medical opinion report, in which the VA examiner concluded that it was less likely than not that the Veteran’s left knee disorder was incurred in or caused by his period of service. The supporting rational was that there was no evidence of left knee problems or treatment during his period of service. Although the VA examiner noted that the Veteran had presented him with copy of an undated medical record of “swollen knee joints, bilateral, [secondary] to PT – treatment physical therapy” from his service, the VA examiner discredited the undated record because it had not been found in the examiner’s review of the claims folder. Notably, the above described, undated medical record is located in the Veteran’s service treatment records along with service treatment records dated from March 1999 to May 1999 for physical therapy treatment which include objective findings for the both knees. Accordingly, the Board finds that the June 2016 VA medical opinion is inadequate, because it is based upon an inaccurate factual basis. On remand, a new VA medical opinion should be obtained that addresses whether the Veteran’s current left knee disorder had an onset during service or is otherwise related to his period of service. In addition, no VA medical opinion has been obtained that addresses whether the Veteran’s left knee disorder is proximately aggravated by his service-connected right knee disability. A remand is also needed to obtain such an opinion. 2. Entitlement to service connection for non-Hodgins lymphoma (NHL) is remanded. 3. Entitlement to service connection for diabetes mellitus is remanded. 4. Entitlement to service connection for bilateral peripheral neuropathy is remanded. The Veteran asserts that he developed NHL, diabetes mellitus, and peripheral neuropathy as a result of exposure to herbicide agents, to include Agent Orange. The Veteran contends that he was exposed to herbicide agents while he was stationed at the Navy Transmitter site in Summit located in Panama Canal Zone from December 1976 to December 1979. He reports that he observed the spraying of vegetation and foliage in areas around antennas and transmitters where he worked. See Veteran’s statement in support of the case, received in June 2020. In support of his assertions, the Veteran has provided a lay statement from a naval servicemember who alleges he sprayed herbicide agents at the Navy Transmitter site in Summit in 1972 and 1973. See statement in support of case from M.I.R, received in June 2020. He has also provided a copy of a hearing testimony from a former Army scientist, who described the storage, testing, and use of herbicide agents in the Panama Canal Zone at multiple locations in 1960s and early 1970s. See Board hearing transcript from another appellant’s case, received in August 2017. In addition, the Veteran has submitted copies of military documents and US Export reports that indicate the use of herbicides in the 1970s. Following the submission of this evidence, the RO did not attempt to further develop the Veteran’s alleged exposure to herbicide agents. On remand, the RO should undertake all necessary development to determine whether the Veteran could have been exposed to herbicide agents in the Panama Canal Zone. 5. Entitlement to service connection for joint and muscle pain is remanded. 6. Entitlement to service connection for a cardiovascular disorder is remanded. 7. Entitlement to service connection for fatigue and sleep disturbances is remanded. 8. Entitlement to service connection for multiple cerebral micro-hemorrhages is remanded. 9. Entitlement to service connection for a neuropsychological disorder is remanded. The Veteran asserts that he has developed disorders manifested by joint and muscle pain, a cardiovascular condition, fatigue and sleep disturbances, cerebral micro-hemorrhage, and a neuropsychological condition as result of undiagnosed illness or medically unexplained chronic multi-symptom illness, and service connection is warranted in accordance with 38 C.F.R. § 3.317. Under legislation specific to Persian Gulf War Veterans, service connection may be established for a qualifying chronic disability, which includes resulting an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. It is unclear from the record whether the Veteran served in Southwest Asia Theater of operations during the Persian Gulf War. Notably, an undated service medical records indicates that the Veteran had service in Saudi Arabi in 1998; however, an August 2016 response from an Official Military Personnel File (OMPF) request shows no indication of Gulf War service. A remand is needed to obtain the Veteran’s complete service personnel records for confirmation as to duty location in the Southwest Asia theater of operations. 10. Entitlement to service connection for sleep apnea is remanded. 11. Entitlement to service connection for bilateral cataracts is remanded. To date, VA has not provided the Veteran notice pursuant to 38 C.F.R. § 3.159 (e) regarding the unavailability of medical records from the VA medical facility in Pensacola, Florida from January 1999 to November 2006. See July 2019 negative response. Accordingly, on remand, the Veteran must be provided notice in accordance with 38 C.F.R. § 3.159 (e) for the unavailable VA treatment records. 12. Entitlement to a compensable rating for hypertension disability is remanded. The Veteran was lasted afforded with a VA examination in October 2017 to evaluate the severity of his hypertension disability. The Veteran should be afforded with a new VA examination to determine the severity of his hypertension disability. 13. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. Finally, because a decision on the above issues for entitlement to service connection and increased rating could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Provide the Veteran with a proper notice that meets the requirement under 38 C.F.R. § 3.159 (e) regarding the unavailability of the Veteran’s VA treatment records from VA medical facilities located in Pensacola, Florida from January 1999 to November 2006. 2. Obtain the Veteran’s complete service personnel records and use them to confirm the following: dates and location of the Veteran’s service in the Panama Canal Zone; and any service in the Southwest Asia theater of operations during Persian Gulf War. Document all requests for information as well as all responses in the claims file. 3. Undertake appropriate development to include contacting the JSRRC, to ascertain whether the Veteran was exposed to herbicide agents, to include Agent Orange while he was stationed at the Navy Transmitter site in Summit located in Panama Canal Zone from December 1976 to December 1979. The JSSRC should specifically consider the Veteran’s lay statements that while performing his duties in he observed the spraying of vegetation and foliage in areas around antennas and transmitters where he worked. See Veteran’s statement in support of the case, received in June 2020. Any response from JSRRC (positive or negative) should be associated with the claims file. If notified that additional information is needed to conduct a search for evidence that might corroborate the Veteran’s in-service exposure to herbicides, then the Veteran should be contacted and informed of the information needed. If insufficient data is available to formulate a request within JSSRC guidelines, a memorandum to that effect should be prepared and associated with the claims file. 4. If, and only if, the Veteran’s military personnel records confirm that he had service in Southwest Asia Theater of Operations, provide him with a VA examination to determine the nature and etiology of his claimed disorders due to joint and muscle pain, a cardiovascular condition, fatigue and sleep disturbances, cerebral micro-hemorrhage, and a neuropsychological condition. The examiner must review the claims file. The examiner should determine whether the Veteran has a current diagnosis for each of the claimed disabilities and then provide opinions on whether is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed disorder is etiologically related to his period of service, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness characterized by a cluster of signs or symptoms? 5. Obtain an addendum opinion regarding whether the Veteran’s left knee disorder is at least as likely as not related to related to his in-service complaints of bilateral knee problems. 6. Obtain an addendum opinion regarding whether the Veteran’s left knee disorder is at least as likely as not proximately due to and/or aggravated beyond its natural progression by service-connected right knee disability. (Continued on the next page)   7. Schedule the Veteran for an examination to determine the current severity of his service-connected hypertension disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.