Citation Nr: 21011307 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-05 657A DATE: March 1, 2021 ORDER The petition to reopen a claim for service connection for a back disability to include degenerative changes of the thoracic spine is granted. REMANDED The claim for an initial compensable evaluation for bilateral hearing loss is remanded. The claim for service connection for gastroesophageal reflux disease (GERD) is remanded. The claim for service connection for hiatal hernia is remanded. The claim for service connection for a back disability to include degenerative changes of the thoracic spine is remanded. The claim for service connection for bilateral ankle disability to include torn tendons is remanded. The claim for service connection for migraine headaches is remanded. The claim for service connection for a disability manifested by weak urine stream is remanded. The claim for service connection for sexually transmitted diseases to include venereal warts and residuals of syphilis is remanded. The claim for service connection for the residuals of dental trauma is remanded. The claim for service connection for sinusitis is remanded. The claim for service connection for a respiratory disability manifested by shortness of breath to include as secondary to asbestos exposure is remanded. The claim for service connection for the residuals of perirectal abscess is remanded. FINDINGS OF FACT 1. In an unappealed rating decision dated in September 2013, the RO denied a claim of entitlement to service connection for a back disability. 2. The evidence added to the record since the September 2013 rating decision that denied the claim for service connection for a back disability, is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability. CONCLUSIONS OF LAW 1. The September 2013 RO decision, that denied a claim of service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen the service connection claim for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the Army from November 12, 1981, to December 7, 1981; with the Air Force from October 1, 1982 to March 31, 1988; February 16, 2006 to April 1, 2006; April 9, 2006 to July 14, 2006; and March 15, 2011 to August 26, 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claims, the Vetaran testified before the undersigned Veterans Law Judge in December 2020. 1. Whether new and material evidence has been received to reopen claims for service connection for right and left knee disabilities The RO first considered and denied the Veteran’s claim for service connection for a back disability in September 2013. Evidence considered at that time included the Appellant’s service treatment records and post service treatment records. The Veteran was notified of the decision and of his appellate rights by letter dated in September 2013. He did not appeal. Therefore, the September 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. VA may reopen a previously and finally disallowed claim when ‘new and material’ evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38. U.S.C. § 3.156(a). This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial, regardless of whether the denial was on the merits or on procedural grounds, to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). In regard to the September 2013 rating action that denied service connection for a back disability; the Board finds that the new evidence-in particular medical records which includes a current diagnosis of degenerative changes of thoracic spine as well as testimony of the Appellant-is so significant that this evidence must be considered in order to fairly decide the merits of the claim. Therefore, the Board finds that this evidence is both new and material, and serves to reopen the claim. 38 C.F.R. § 3.156 (a); see Shade v. Shinseki, 24 Vet. App. 110 (2010). As such, the Appellant’s claim of entitlement to service connection for a back disability is reopened. REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for bilateral hearing loss 2. Service connection for GERD 3. Service connection for hiatal hernia The record contains a Social Security Administration (SSA) inquiry dated July 24, 2020. It indicates that the Veteran has a disability that had its onset on October 5, 2018. It is not clear from the record if the Veteran is receiving SSA benefits based on disability. Before the Board may proceed with review of the case, this must be clarified. 4. Service connection for a back disability to include degenerative changes of the thoracic spine 5. Service connection for bilateral ankle disability to include torn tendons. The Veteran maintains that he has back and bilateral ankle disabilities that resulted from the wear and tear involved in his military duties. At his hearing he pointed out that he had to pull heavy hose carts in order to refuel airplanes. He believes that this has led to the development of chronic disabilities. Medical examination and opinion are needed. The STRs received in March 2020 shows treatment for the right ankle in September 2007. It is not clear as to the duty status at this time. This should be clarified. 6. Service connection for migraine headaches The Veteran maintains that as a result of this exposure to fuel and other toxins, he developed migraine headaches. In light of inservice complaints of migraines, medical examination and opinion are needed. 7. Service connection for weak urine stream 8. Service connection for sexually transmitted diseases (STD) to include venereal warts and residuals of syphilis The Veteran contends that he currently has residuals from STDs that were contracted during military service to include weak urine stream. The STRs indicate treatment for variously diagnosed STDs throughout military service. Medical examination and opinion are needed. 9. Service connection for the residuals of dental trauma At his hearing, the Veteran reported that during service he suffered dental trauma. The Veteran should provide more details of this incident to include time, place, witnesses, and place of treatment. Thereafter, schedule examination and opinion. 10. Service connection for sinusitis The Veteran also maintains that service connection is warranted for chronic sinusitis. In an unfavorable December 2016 VA medical opinion, an examiner indicated that there was no objective evidence consistent with sinusitis since 1992. However, the record contained an October 2013 statement from a nurse from Mercy Dry Ridge Family Med that noted treatment for sinusitis and chronic rhinitis over the years. (See correspondence received November 6, 2013). Moreover, since this examination, the VA has received records dated in April 2011 showing treatment for sinusitis. A supplemental opinion is needed. 11. Service connection for a respiratory disability manifested by shortness of breath to include as secondary to asbestos exposure The Veteran maintains that due to his military duties he has a respiratory disorder manifested by shortness of breath. At his hearing, he stated that he was required to work in condemned buildings at Wright Patterson (in Building One) where he was exposed to asbestos. Development has not been completed to determine whether the Veteran’s job duties included asbestos exposure. In considering his claim, further development is warranted. The STRs received in March 2020 shows reports of difficulty breathing in November 2007. It is not clear as to the duty status at this time. This should be clarified. 12. Service connection for the residuals of perirectal abscess The Veteran maintains that he currently has a perirectal abscess that had its onset during military service. STRs show that the received treatment for a perirectal abscess in February 1988. In April 2013, a VA examiner found that the perirectal abscess had resolved with no residuals. However, VA examination in August 2020 confirmed the presence of a perirectal abscess. Moreover, in October 2020 statement the Veteran reported treatment for perirectal abscess at Good Samarian Hospital. In considering his claim, further development is warranted. The matters are REMANDED for the following action: 1. Certify the nature of the Appellant’s periods of service in 2007. As to each period, state definitively whether or not it was federalized service, and whether it was active duty, ACDUTRA, or INACDUTRA. 2. The Veteran should be asked to clarify whether he receives SSA disability benefits. If so, any relevant medical records should be obtained. 3. The AOJ should ask the Veteran for the names, addresses, and approximate dates of treatment of all VA and non-VA health providers who have treated him for his claimed disabilities. This should include Mercy Dry Ridge Family Med (See correspondence received November 6, 2013 and December 2, 2013). and Good Samaritan Hospital (See correspondence received October 7, 2020). When this information and any necessary authorizations have been received, the RO should request copies of all pertinent clinical records that have not been previously. All records obtained should be associated with the claims folder. 4. The Veteran should be asked to submit a detailed statement with information that includes dates, places, detailed descriptions of the events, service units, duty assignments and the names and other identifying information concerning his dental trauma. 5. The AOJ should take appropriate action to develop evidence of whether the Veteran was exposed to asbestos during service, to specifically include seeking information as to whether his job duties involved working with or near asbestos. Such development should include a determination regarding the extent to which his duties would have exposed him to asbestos. 6. After completing directives 1-5, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of back disability, bilateral ankle disability, migraine headaches, weak urine stream, venereal warts, dental condition, sinusitis, respiratory disability, and perirectal abscess. The examiner(s) should opine whether it is at least as likely as not that the Veteran’s back disability, bilateral ankle disability, migraine headaches, weak urine stream, venereal warts, dental condition, sinusitis, respiratory disability, and perirectal abscess were caused by, or otherwise related to an in-service disease or injury. The examiner(s) is asked to explain the reasons behind any opinions expressed and conclusions reached. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.