Citation Nr: 21015097 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 10-08 584 DATE: March 16, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a low back disability is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a left foot disability is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a right foot disability is granted. Service connection for a respiratory disability, as due to in-service exposure to toxins including herbicide agents, is granted. Service connection for a low back disability, other than stooped posture due to Parkinson’s disease, is granted. REMANDED Entitlement to an initial rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) with depressive disorder, not otherwise specified, and mental manifestations of Parkinson’s disease is remanded. Entitlement to service connection for residuals of a right foot frostbite injury or cold exposure manifested by chronic swelling of the right foot is remanded. Entitlement to service connection for residuals of a left foot frostbite injury or cold exposure manifested by chronic swelling of the left foot is remanded. FINDINGS OF FACT 1. An August 2006 rating decision denied service connection for a low back disability and for a bilateral foot disability. The Veteran did not formally appeal the decision on these issues, nor did he submit new and material evidence which prevented the decision on these issues from becoming final. 2. The evidence associated with the file since the August 2006 rating decision includes evidence that relates to unestablished facts necessary to substantiate the bilateral foot and low back claims, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims for service connection for a low back disability and for a bilateral foot disability resulting from frostbite or cold exposure. 3. The Veteran has a current respiratory disability that is etiologically related to active service. 4. The Veteran has a current low back disability that is etiologically related to active service. CONCLUSIONS OF LAW 1. The August 2006 rating decision that denied service connection for a low back disability and a bilateral foot disability is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 2. The evidence received since the August 2006 rating decision is new and material evidence and serves to reopen the Veteran’s claims for service connection for a bilateral foot disability and a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a respiratory disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 4. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to December 1969, to include service in the Republic of Vietnam. His decorations include a Combat Action Ribbon. In December 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). The Board of Veterans’ Appeals (Board) has recharacterized the issues on appeal as above to better reflect the allegations made by the Veteran. In this regard, the Board notes that the Veteran was denied service connection for a bilateral foot disability (claimed as “feet-lymphatic system”) in an August 2006 rating decision. In February 2008, the Veteran filed a claim for entitlement to service connection for “frostbite-bilateral feet.” The Board finds that this claim, despite being pursued under different terms, involves the same diagnosis and is based on the same factual premise as the claim denied in August 2006, and, as such, new and material evidence is required. See Boggs v. Peake, F20 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). The Board also notes that, in March 2009, VA associated official service department records that had existed but had not been associated with the claims file when VA first decided the Veteran’s claim for service connection for asthma, a bilateral foot disability, and a low back disability in August 2006. Specifically, additional military personnel records not previously of record for the Veteran were added to the file at that time which showed that the Veteran served in the Republic of Vietnam. These records are relevant to the Veteran’s claim for service connection for a respiratory disability due to in-service exposure to toxins, to include herbicide agents. Thus, the provisions of 38 U.S.C. § 3.156(c) allowing VA to reconsider a claim without new and material evidence apply to the Veteran’s claim to reopen the previously denied claim for service connection for asthma. However, these records are not relevant to the claims for service connection for a bilateral foot disability or for a low back disability. Thus, the provisions of 38 U.S.C. § 3.156(c) allowing VA to reconsider a claim without new and material evidence does not apply to the claims to reopen the previously denied claims for a bilateral foot disability and for a low back disability, and new and material evidence is needed. New and Material Evidence—Bilateral Foot and Low Back Disabilities A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Regardless of how the Regional Office (RO) decided a reopening question, the Board must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held 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). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board is cognizant 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). In an August 2006 rating decision, the RO denied service connection for bilateral foot and low back disabilities. The claims were denied based on the RO’s decision that the Veteran’s service treatment records (STRs) did not show any permanent, or chronic, disabilities and/or residuals related to the claimed conditions, and there were no known VA and/or private treatment records evidencing current disabilities or other support for the claims. The Veteran did not perfect an appeal on these adverse determinations, nor did he submit any additional evidence within the time frame needed to prevent them from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the August 2006 rating decision became final as to these issues, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the August 2006 rating decision includes lay and medical evidence regarding in-service events the Veteran purports led to the claimed conditions, as well as his December 2020 Board testimony that he currently has the claimed disabilities, none of which pre-existed active service. This evidence, presumed as credible for new and material purposes, relates to elements of the Veteran’s claims which were not met when the claims were first denied in August 2006. Thus, this evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claims for service connection for a bilateral foot disability and a low back disability. Thus, these claims are reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Further, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). A. Respiratory Disability as due to In-Service Exposure to Toxins Including Herbicide Agents A veteran who served in Vietnam during the Vietnam Era, such as this Veteran, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Certain enumerated chronic diseases associated with exposure to herbicide agents (Agent Orange) may be service connected on a presumptive basis as due to exposure to herbicides. 38 C.F.R. § 3.309(e). Of note, the Veteran is not claiming any diseases that VA regulations include on the presumptive list. However, service connection can still be found for conditions directly related to in-service Agent Orange exposure even when they are not included on the presumptive list. The Veteran seeks service connection for a respiratory disability which he asserts is related to toxic substances, including Agent Orange, which he inhaled during active service. He submitted a respiratory conditions disability benefits questionnaire (DBQ), wherein his private doctor, Dr. B.C., MD, stated that he (the Veteran) had asthma and chronic obstructive pulmonary disease (COPD). As such, the current disability prong of this claim has been met. Further, the Veteran has consistently reported having been exposed to toxic gasses in service. He has submitted multiple written accounts and buddy statements about numerous events that occurred during active service wherein he was exposed to toxic gases. He is competent to report such occurrences, and his reports have been consistent. Thus, the Board has no reason to question the credibility of his reports. Also, as he has presumed exposure to Agent Orange due to his service in Vietnam during the Vietnam Era, the in-service element of this claim has been met. Accordingly, the remaining question in this case is whether a causal relationship, or nexus, exists between the Veteran’s respiratory disabilities and his inhalations of toxic chemicals, including Agent Orange, in active service. The Veteran has submitted multiple statements from private providers which link his current respiratory condition to his in-service exposures. See June 3, 2008, and March 6, 2008, letters from Dr. B.C., MD; see also November 12, 2010, letter from Dr. W.C., MD. There are no medical opinions associated with the claims file which contradict these physicians’ conclusions, and the Veteran was not afforded a VA examination to determine the etiology of his respiratory disability. Thus, the evidence presented as to the medical nexus aspect of the Veteran’s respiratory disability is at least in equipoise, and the benefit of the doubt will be afforded to him. Accordingly, the Board finds that the medical nexus element of the Veteran’s claim has also been met and that service connection for a respiratory disability is warranted. B. Low Back Disability, other than Stooped Posture due to Parkinson’s Disease The Veteran also seeks service connection for a low back disability. Of note, he is already service-connected for stooped posture due to his service-connected Parkinson’s disease. Thus, the Board will address whether service connection is warranted for another low back disability. The Veteran’s VA treatment records reveal that he was assessed with lumbar spine degenerative joint disease (arthritis) pursuant to August 2009 radiographic findings. As such, the current disability prong for this claim has been met. Thus, the remaining question in this case is whether a causal relationship exists between the Veteran’s lumbar spine disability and his active service, or whether the disorder onset therein. In this regard, the Board acknowledges that the Veteran is competent to report the onset and history of his lumbar spine pain, which is a symptom of his lumbar spine arthritis condition. Layno, 6 Vet. App. at 470. Specifically, the Veteran testified before the Board in December 2020 that his lumbar spine symptoms began while he was serving as a lineman on a line crew during active service, where one of his duties was to perform testing for rescue work on a power pole. He reported that an incident occurred while he was up on one of the poles, causing him to fall from the pole. His back began to hurt from the fall. He also submitted numerous written statements throughout the appeal period wherein he consistently described the same in-service event leading to his back symptoms. The Veteran further testified that he was seen at an Emergency Room in service when this happened, and has tried to obtain the records, but was told they are not available. There is documentation in the claims file which supports this. See Documents Uploaded into Claims File July 21, 2008. The Veteran contends that his back pain began after this in-service injury and the pain symptoms have continued since that time. Importantly, the Veteran has not made any statements to the contrary. Accordingly, the Board finds the Veteran’s competent statements about the onset of his symptoms of his low back disability to be credible, as he has consistently reported the same onset as occurring in service. No VA examination was afforded for this condition, as the RO mistakenly found no new and material evidence had been received sufficient to reopen the claim. Further, there are no medical opinions of record which either link, or decline to link, the Veteran’s lumbar spine disability to his active service. Thus, the Veteran’s lay reports regarding the onset and history of his lumbar spine disability’s symptoms are the only competent and credible evidence of record on this issue—and are not contradicted by any other probative evidence in the claims file. In light of the above, the Board finds the Veteran’s competent, credible reports of his lumbar spine disability’s symptoms having onset in active service to be the most probative evidence in this case. Thus, the evidence supports a finding that the Veteran’s low back disability onset in service and has continued since then. Service connection for a lumbar spine disability is warranted, as it is a current disability which onset during active service. REASONS FOR REMAND As an initial matter, the Veteran’s VA treatment records have not been uploaded to the claims file since July 2017. Updated VA treatment records must be obtained as they could contain information which could support the Veteran’s claims. Further, the Veteran treated with private providers for the conditions being remanded, and it is unclear if the complete private records have been obtained and updated in the claims file. As such, updated and complete private treatment records for the remanded disabilities must also be obtained as they, too, could contain information which could support the Veteran’s claims. Entitlement to an initial rating in excess of 50 percent for the service-connected PTSD with depressive disorder, not otherwise specified, and mental manifestations of Parkinson’s disease The Veteran seeks an initial rating greater than that currently assigned for his service-connected psychiatric disability. He was last examined for this condition by VA in November 2008, over 12 years ago. He also testified before the Board in December 2020 that his psychiatric symptoms are more severe than the 2008 VA examination report reflects. Thus, on remand, he should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of this disability. Entitlement to service connection for residuals of bilateral foot frostbite injuries or cold exposure manifested by chronic swelling of the feet The Veteran also seeks service connection for residuals of bilateral foot frostbite injuries he asserts he incurred in service. He was not diagnosed with frostbite in service, as he reports he did not seek treatment for the condition, but he has provided evidence of being exposed to cold temperatures in service, both in his Board testimony in December 2020 and in temperature logs submitted from his time serving in Camp Lejeune, North Carolina in 1968 when the exposure was purported to have occurred. See 1968 Temperature Data Documents from the Camp Lejeune Area Submitted June 23, 2009, and June 4, 2008. Specifically, he contends that his feet have a lymphatic disability which results in severe swelling and stems from them having had frostbite in service. Although he submitted a letter dated August 11, 2006, from his private podiatrist, Dr. B.M., DPM, supporting this contention, it is unclear what, if any, current diagnosed residuals of bilateral feet frostbite injuries or cold exposure he may have. Dr. B.M.’s letter stated that he “feels that [the Veteran’s] lymphatic system was severely damaged,” and resulted in chronic swelling which is extremely disabling. He also stated the conditions were the result of the hypothermia [from the frostbite]. The Veteran has not been afforded a VA examination in relation to this claim. The Board finds that a VA examination is needed to determine the nature and etiology of any residual disabilities of the Veteran’s asserted in-service frostbite injuries or cold exposure to his feet. Accordingly, these matters are REMANDED for the following action: 1. Obtain VA treatment records from July 2017 through the present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his psychiatric and bilateral foot conditions. Make two requests for all authorized previously unobtained records from all identified providers, unless it is clear after the first request that a second request would be futile. 3. After obtaining any outstanding records related to the Veteran’s claim (pursuant to paragraphs 1 and 2 above), schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected psychiatric disability. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s service-connected psychiatric disability and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected psychiatric disability alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Also after obtaining any outstanding records related to the Veteran’s claim (pursuant to paragraphs 1 and 2 above), schedule the Veteran for a VA examination to determine the nature and etiology of any current or previously-diagnosed residual disability due to in-service frostbite injuries or cold exposure to the bilateral feet manifested by chronic swelling. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Does the Veteran have a diagnosable disability of either foot, or both feet, manifested by chronic swelling or any other symptoms on current examination or at any time during the pendency of the appeal (from February 2008 to the present)? (b.) If the Veteran does not have a diagnosed disability of either or both feet manifested by chronic swelling on current examination or at any time during the current appeal, is his bilateral foot condition characterized by chronic swelling that reaches the level of functional impairment of earning capacity? (c.) If the Veteran has either a diagnosed disability of either foot, or both feet, or a disability manifested by chronic swelling that reaches the level of functional impairment of earning capacity of the bilateral feet, the examiner should also answer the following: Is it at least as likely as not (i.e., 50 percent probability or greater) that such disability was related to any incident of active service, to include a residual of cold exposure or frostbite injury to the Veteran’s feet which he asserts occurred in service? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 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 (CONTINUED ON NEXT PAGE) 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 C. Davidoski, Associate 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.