Citation Nr: 21015660 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-49 952A DATE: March 18, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for athlete's foot is denied. New and material evidence having not been received, the application to reopen the claim of service connection for a food allergy is denied. New and material evidence having not been received, the application to reopen the claim of service connection for loose teeth is denied. A temporary total rating (TTR) for a period of post-surgical convalescence or hospitalization due to cancer of the throat and tongue is denied. REMANDED Service connection for cancer of the neck and tongue. Service connection for a gastrointestinal (GI) disorder. Service connection for fatigue. FINDINGS OF FACT 1. The Veteran served on active duty from April to August 1984, and from March 1988 to February 1998, to include service in the Southwest Asia Theater of Operations. 2. In unappealed April 2010 and February 2014 rating decisions, the Regional Office (RO) denied service connection for athlete’s foot, loose teeth, and food allergies. 3. The evidence submitted since the April 2010 and February 2014 decisions did not establish a link between the current diagnoses of athlete’s foot and service, did not establish a diagnosis of food allergies; and does not establish a link between loose teeth and a service connected disability. 4. The Veteran was not hospitalized for service-connected disabilities for a period of at least 21 days and did not undergo surgery for service-connected disabilities that required a period of post-surgical convalescence of at least one month. CONCLUSIONS OF LAW 1. The April 2010 and February 2014 rating decisions are final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the April 2010 rating decision is not new and material; the claim for service connection for athlete’s foot is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. The evidence received since the February 2014 rating decision is not new and material; the claim for service connection for a food allergy is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 4. The evidence received since the April 2010 rating decision is not new and material; the claim for service connection for loose teeth is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 5. The criteria for a TTR for a period of post-surgical convalescence or hospitalization due to cancer of the throat and tongue have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5017 (2012); 38 C.F.R. §§ 4.29, 4.30 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2019, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In August 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Procedurally, the Veteran attempted to opt into the Appeals Modernization Act (AMA) and requested a higher level review (HLR) in December 2020. VA informed him that his request for a HLR could not be accepted because of a lack of specificity as to which claims he wished to opt into the AMA. He was given 60 days to reply but no further correspondence was received. As such, the appeals are continued in the legacy appeals system as it was previously docketed. Additionally, in December 2020 correspondence in response to the November 2020 supplemental statement of the case (SSOC), the Veteran contended that some of his appeals were not properly considered in the November 2020 SSOC. In this regard, the Board reviewed the file and found that the additional issues of concern to the Veteran were addressed in a separate August 2020 Board decision, which remanded many of the claims for further development. Importantly, he requested, and was granted a separate hearing for these issues. Thus, they are the products of a separate appeal stream and will be the subjects of a subsequent Board decision. Finally, in November 2019, the Veteran and his then-attorney of record, submitted separate correspondence indicating a desire to withdraw representation and terminate the relationship between them. In February 2020, VA accepted the withdrawal of representation. Since then, the Veteran has not submitted new representation or indicated such a desire. Thus, there is no bar to proceeding with the appeal. Reopen Claims Based on New and Material Evidence 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 “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). Athlete’s Foot & Food Allergies In unappealed April 2010 and February 2014 rating decisions, the RO denied service connection for athlete’s foot and a food allergy, respectively. Service connection for athlete’s foot was denied due to a lack of an in-service incurrence or nexus to service. Service connection for a food allergy was denied due to it being a congenital or development issue which was unrelated to service. Evidence in the record at the time of both rating decisions included Veteran’s statements and VA and private medical records which showed treatment for athlete’s foot, and occasional complaints of gastric issues related to lactose intolerance. Since that time, the Veteran has submitted additional VA and private treatment records, new statements regarding his disorders, and testimony at his April 2019 Board hearing. With regard to his athlete’s foot, he testified that he sought treatment soon after his discharge from service. New medical treatment records were submitted for the period following his separation from service; however, no treatment for athlete’s foot was noted in those treatment records. He also provided testimony that he had issues with athlete’s foot while in service as he had before. Nonetheless, his service treatment records (STRs) showed no complaints of, or treatment for, athlete’s foot while in service, or directly following his separation. Importantly, at the April 2019 hearing, the Veteran did not provide any evidence or statements which would support a nexus to service. Further, the new medical records failed to show a nexus to service. Rather, the available records showed only sporadic treatment for athlete’s foot, the presence of which was not in controversy. Accordingly, while new evidence has been submitted in support of the claim, it is not material in that it does not raise a reasonable possibility of substantiating the appeal by establishing a nexus to service. As such, while new records have been submitted, they do not raise a reasonable possibility of substantiating the claim, and the application to reopen is denied. With specific regard to his claim for a food allergy, evidence at the time of the prior February 2014 denial consisted of statements by the Veteran and VA and private medical treatment records. Evidence associated with the record since that time consist of his testimony, further statements, and additional treatment records. Importantly, the newly added treatment records show many denials of the presence of food allergies, and only sporadic notations of lactose intolerance. Additionally, at the April 2019 Board hearing, the Veteran testified that his claim for food allergies was largely a digestion issue which was intertwined with his claim for service connection for a GI issue. In this regard, no evidence has been provided which tends to suggest that this disorder is anything more than a congenital disorder for which service connection is not warranted. Accordingly, while new evidence has been submitted in support of the claim, it is not material in that it does not raise a reasonable possibility of substantiating the appeal by establishing a nexus to service. As such, while new records have been submitted, they do not raise a reasonable possibility of substantiating the claim, and the application to reopen is denied. Loose Teeth The claim of service connection for a dental condition to include loose teeth was initially denied in an April 2010 rating decision due to a lack of showing a disabling condition. Evidence at that time consisted largely of VA and private treatment records, as well as the Veteran’s STRs. Evidence added to the record since that time includes the April 2019 Board testimony, additional VA treatment records, and further statements by the Veteran. Treatment records which show missing teeth which is reflective of a current disorder. Specifically, the Veteran has repeatedly asserted that his dental condition was a result of the treatment received for his throat and tongue cancer disorders. VA treatment records show notations for loose or missing teeth after his diagnosis; however, the claim of service connection for throat and tongue cancer is pending. As he is not current service connected for throat and tongue cancer, the evidence is not new and material and the appeal is not reopened. REASONS FOR REMAND At the April 2019 Board hearing, the Veteran testified that his exposure to burn pits and other hazardous environmental exposures in Saudi Arabia caused his cancer of the tongue and throat. The military personnel records (MPRs) show that he had service in Saudi Arabia and received the Southwest Asia Service Medal with two devices. Nonetheless, no medical opinion as to etiology has been obtained. Thus, a remand is necessary. Next, the Veteran asserts that a GI issue is related to a hiatal hernia he had in service. His treatment records show that he has been diagnosed with gastroesophageal reflux disease (GERD), with probable diagnosis if irritable bowel syndrome (IBS). He is already service connected with status/post epigastric hernia repair to include GERD. Additionally, STRs show he had a surgery for a hiatal hernia in 1989. To the extent he claims IBS due to the hiatal hernia, a medical opinion is needed. Next, the Veteran contends that fatigue is related to his service in Southwest Asia. While his VA treatment records contain only sporadic notations of fatigue, this disorder is viewed as a possible medically unexplained chronic multisymptom illness (MUCMI) in accordance with his service in Saudi Arabia. In this regard, MUCMI means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(1)(B)(ii). Thus, a medical opinion is needed to assess the nature and etiology of fatigue. 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. Direct the claims file to a clinician to address the etiology of the Veteran’s throat and tongue cancer. After reviewing the file, the clinician is asked to opine as to whether it is at least as likely as not (50% probability or greater) that tongue or throat cancer is related service, to include exposure to environmental toxins in the Southwest Asia theater of operations. A thorough rationale is required for any opinion rendered. 3. Direct the claims file to a clinician to address the etiology of the Veteran’s GI disorder, to include IBS. After reviewing the file, the clinician is asked to opine as to whether it is at least as likely as not (50% probability or greater) a GI disorder (other than the already service connected status/post epigastric hernia repair to include GERD) is related service, to include exposure to environmental toxins in the Southwest Asia theater of operations. The clinician is also asked to specifically consider and address the Veteran’s surgery for a hiatal hernia during service when providing an opinion. A thorough rationale is required for any opinion rendered. 4. Direct the claims file to a clinician to address the etiology of the Veteran’s fatigue. After reviewing the file, the clinician is asked to opine as to whether it is at least as likely (50% probability or greater) that fatigue: i) is directly related to service, ii) caused or aggravated by a service-connected disability, iii) can be attributed to a known clinical diagnosis, iv) cannot be attributed to a known clinical diagnosis, or v) is the result of an undiagnosed illness or MUCMI etiologically related to exposure to environmental hazards while serving in Southwest Asia during the Persian Gulf War. 5. If the clinician(s) determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.