Citation Nr: 21012030 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-14 564 DATE: March 3, 2021 ORDER New and material evidence has not been received sufficient to reopen a claim for service connection for a visual disorder. REMANDED Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for a throat disorder, to include as a result of an undiagnosed illness, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for a low back disability, to include as a result of an undiagnosed illness, is remanded. Entitlement to service connection for a bilateral leg disability is remanded. FINDINGS OF FACT 1. The RO denied service connection for eye trouble in a September 1994 rating decision; the Veteran did not appeal that decision. 2. Evidence received since the September 1994 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of service connection for an eye condition, and does not raise a reasonable possibility of substantiating that claim. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a visual disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from October 1973 to July 1994. In November 2019, the Veteran and his spouse provided sworn testimony at a hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been incorporated into the claims file. New and Material – Visual Disorder A. Finality By way of history, in September 1994, the agency of original jurisdiction (AOJ) denied service connection for an eye disability. The rating decision specified that “eye trouble” is a symptom or general complaint and was not a diagnosis upon which service connection could be based. The Veteran did not file a request for reconsideration or appeal. Therefore, the September 1994 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. B. New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence received since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the Veteran’s previous claim for service connection for an eye disability was denied by a September 1994 rating decision due to a lack of evidence of a diagnosis of such a disorder. The Veteran did not appeal that denial. In May 2015, the Veteran filed a claim to reopen this issue. VA treatment records which were not previously of record were added to the claims file and are considered new. However, this medical evidence does not include a diagnosed eye condition. While the Veteran testified that his vision has been deteriorating, there has been no clinical diagnosable condition associated with his complaints of pain and irritation in his eyes. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks sufficient evidence demonstrating that the Veteran has had a diagnosis of an eye disability during, or concurrent with, the pendency of the claim to reopen. Accordingly, the Board finds that the evidence received subsequent to September 1994 is not new and material and does not serve to reopen the Veteran’s claim for service connection for an eye disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND At the Board hearing, the Veteran argued that his symptoms are consistent with Gulf War Syndrome, under 38 C.F.R. § 3.317. This regulation addresses compensation for certain disabilities occurring in Persian Gulf Veterans, including, though not limited to, undiagnosed illness and medically unexplained chronic multi-symptom illnesses. A Gulf War examination should be conducted on remand, particularly in light of any relevant symptomatology that the Veteran may be experiencing that cannot be associated with a known diagnosis. Service Connection Heart The Veteran contends that his heart condition began during his active service. The Board finds that there is insufficient evidence of record upon which to adjudicate this claim and that a remand is, therefore, necessary. According to the Veteran’s testimony, in 1982 he reported a tightness in his chest and a severe headache. He stated that the doctor that treated him warned him of a heart condition that would develop in the future. The Veteran’s service medical records confirm he complained of chest pain, that his heart was monitored regularly, and that a heart murmur was found in April 1992. While there is no evidence showing the Veteran’s current condition was diagnosed within one year of service, he does have a current heart condition which required 2 stents. The VA has not afforded the Veteran an examination to determine if his current heart condition with stent is etiologically related to his in-service complaints and findings. Such should be accomplished on remand. Service Connection Throat (Aphonia) The Veteran contends that he has a throat condition related to his active service. The Board finds there is insufficient evidence upon which to adjudicate this claim fully and that a remand is necessary. On VA examination in August 2015, the examiner opined that the Veteran’s acid reflux or GERD, is not one of the manifestations of Parkinson’s. Therefore, the examiner concluded that the Veteran’s claimed throat condition is less likely as not due to, or caused by, the service connected Parkinson’s disease. At the November 2019 hearing, the Veteran stated he was diagnosed with “aphonia” around 1997. The VA examiner did not consider whether the Veteran’s throat condition was etiologically related to his active service, to include as a symptom of a Gulf-War illness. This deficiency should be corrected on remand. Service Connection COPD The Veteran contends that his diagnosed COPD is related to his active service. The Board finds there is insufficient evidence upon which to adjudicate this claim fully and that a remand is necessary. Specifically, at the recent Board hearing, the Veteran testified that he was diagnosed with COPD in 1995 (approximately a year after his retirement from active duty) and that he has been consistently treated at the VA hospital. While STRs are silent for COPD symptoms, available post-service medical records reflect such symptomatology beginning in 1999, approximately 5 years after the Veteran’s separation from service. Significantly, while these records mention a past history of COPD, VA has not offered the Veteran an examination to determine the current nature and etiology of his diagnosed COPD. This deficiency should be corrected on remand. Service Connection Low Back The Veteran contends that he has a low back condition related to his active service. The Board finds there is insufficient evidence upon which to adjudicate this claim fully and that a remand is necessary. The Veteran testified that, after hitting his head on a helicopter skid in service in the 1990s, he started seeing a doctor about his back. He was diagnosed with herniated and bulging discs. He also testified that complaints of back pain were recorded in his service medical records and that he had been treated with shots in his back. Service medical records confirm the Veteran’s complaints of back pain. Indeed, a January 1994 service medical record references his experience of painful joints and difficulty running after he returned from Desert Storm. Additionally, VA treatment notes of record show that the Veteran has been diagnosed with bulging discs in his lumbar spine. Significantly, he has not been afforded a VA examination to determine the nature and etiology of his low back condition. This deficiency should be corrected on remand. Service Connection Bilateral Leg Condition The Veteran recently testified that his leg ulcerations began following injections for his low back pain. He has also described left leg pain during his active service. On remand, he should be afforded the opportunity for an examination to determine the nature and etiology of his current bilateral leg condition. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records regarding the Veteran, including records from the date of his separation in 1994. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations to procure such records. 2. Then, accord the Veteran appropriate examinations for a heart condition, throat condition, COPD, low back condition, and a bilateral leg condition. The purpose of these examinations is to determine the nature and etiology of any such diagnosed disabilities, to include whether any such relevant symptoms are associated with an undiagnosed illness due to the Veteran’s Gulf War service. Any necessary testing should be conducted. Each examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosed disorder(s) onset in, or are otherwise related to, the Veteran’s active duty. In addressing these matters, the examiners should consider the medical evidence of record (including pertinent findings in the service treatment records) as well as the Veteran’s competent lay statements regarding his relevant symptomatology. For any symptoms not associated with a known clinical diagnosis, the examiner should opine as to whether such symptoms represent a medically unexplained chronic multi-symptom illness (due to the Veteran’s Persian Gulf War service). A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.