Citation Nr: 21020749 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-22 240A DATE: April 8, 2021 ORDER New and material evidence having been received, the claim for service connection for osteosarcoma (claimed as bone cancer) is reopened. REMANDED Entitlement to service connection for left eye glaucoma (claimed as a bilateral eye disorder), to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for osteosarcoma (claimed as bone cancer), to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a right shoulder disorder associated with osteosarcoma is remanded. Entitlement to service connection for a right hip disorder associated with osteosarcoma is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), associated with osteosarcoma, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction associated with type II diabetes mellitus and/or an acquired psychiatric disorder is remanded. Entitlement to service connection for back pain is remanded. Entitlement to service connection for right foot plantar fasciitis is remanded. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. FINDINGS OF FACT 1. The Veteran’s most recent claim for service connection for osteosarcoma (bone cancer) was denied in a January 2008 rating decision. The Veteran was notified of the decision and provided notice of his procedural and appellate rights in March 2008 but did not file a notice of disagreement and additional evidence was not received within one year of the notice. 2. The evidence received since the January 2008 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW 1. The January 2008 rating decision is final. 38 U.S.C. §§ 7105(c) (2006); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2008). 2. The claim for service connection for osteosarcoma is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2020). REFERRED The record shows that the Veteran has raised the issue of entitlement to compensation under 38 C.F.R. § 1151 for left eye glaucoma due to surgical treatment at the Houston VA Medical Center in August 2015. See September 2017 claim. The AOJ concluded that it was part of the Veteran’s appeal for service connection for glaucoma. See January 19, 2018, letter; see also January 18, 2018, Deferred Rating Decision. However, a claim for compensation under 38 C.F.R. § 1151 is not an alternative theory of a claim for service connection for the same disability. Anderson v. Principi, 18 Vet. App. 371, 377 (2004). The AOJ has not yet adjudicated this claim. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1977 to July 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In August 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Veteran’s claims for service connection for depression, anxiety, and PTSD were initially adjudicated by the RO as separate claims. However, in light of the evidence of record, the Board has recharacterized the issues more broadly to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). 1. New and material evidence having been received, the claim for service connection for osteosarcoma (claimed as bone cancer) is reopened. The RO previously considered and denied a claim for service connection for osteosarcoma in a December 2005 rating decision. In particular, the RO noted that his service treatment records did not document any complaints, treatment, or diagnosis of any osteosarcoma or bone cancer in the Veteran’s right arm and that there was no evidence of a current diagnosis or treatment for osteosarcoma or bone cancer. The Veteran submitted a notice of disagreement in January 2006, within one year of notification of the rating decision. The RO issued an August 2006 statement of the case, to which the Veteran did not respond. Thereafter, in a January 2008 rating decision, the RO determined that no new and material evidence was received to reopen the claim. The RO incorrectly found that the December 2005 rating decision had become final because it determined that the Veteran had not filed a timely notice of disagreement with that decision. The Veteran submitted a letter repeating that he was seeking compensation for cancer issues that was received by the RO in September 2007. The RO accepted this as a new claim for benefits, which was denied in a January 2008 rating decision. The Veteran was notified of the January 2008 rating decision and of his appellate rights in a February 1, 2008, letter. The letter was returned as undeliverable. The RO located a new address for the Veteran and remailed the letter on March 5, 2008. The March 2008 notice was not returned as undeliverable. The Veteran did not appeal or submit new and material evidence within the one-year appeal period. Therefore, the January 2008 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). Essentially, the Veteran raised a new theory of entitlement to reopen his claim in May 2013, contending that he developed osteosarcoma as a result of exposure to contaminated water at Camp Lejeune. A new theory of entitlement does not, on its face, constitute new and material evidence unless evidence supporting the new theory of entitlement is itself new and material. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); see also Voracek v. Nicholson, 421 F.3d 1299, 1304-05 (Fed. Cir. 2005) (if the claimant states that he wishes to reopen his claim before the appeal period ends, but does not submit new and material evidence, his statement is accepted as a new claim and not as new and material evidence relating to the original claim.) The evidence received since the January 2008 rating decision includes VA treatment records, copies of a 1977 unit history submitted in June 2017, the August 2020 hearing testimony, and lay statements. The Veteran has claimed that he was deployed to Camp Lejeune for approximately two weeks on at least three occasions during his service and that he was exposed to contaminated drinking water which caused him to develop bone cancer. For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA treatment records also note that the Veteran underwent right arm surgery for malignancy of the bone in 1991. See, e.g., January 2009, April 2009, May 2009, May 2014, January 2015, July 2015 VA treatment records. This evidence was not previously considered by the RO and relates to unestablished fact necessary to substantiate the claim. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for osteosarcoma is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), associated with osteosarcoma, is remanded. The Veteran was afforded a VA mental disorders examination in February 2014. The VA examiner reported that the Veteran did not have nor had he ever been diagnosed with a mental disorder. However, the examiner also noted that the Veteran had previously been diagnosed with PTSD, major depression, and major depressive affective disorder. She reported that the Veteran’s symptoms and level of functioning reported during the examination did not warrant a diagnosis. However, the examiner did not address all of the psychiatric diagnoses of record. Therefore, a remand is necessary to obtain an additional VA examination and medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). During the August 2020 hearing, the Veteran claimed that he developed an acquired psychiatric disorder due to osteosarcoma. As noted above, the outcome of the claim for service connection for osteosarcoma could affect the outcome of the claim for service connection for an acquired psychiatric disorder; therefore, the claims are inextricably intertwined. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. During the August 2020 hearing, the Veteran reported that he was an aviation structural mechanic in the Navy and that he flew drones that were used for missile target practice to test for accuracy. He related that the drones were launched by explosives and then repeatedly fired upon until training was complete. He also indicated that the drone engines were very loud. The Veteran was afforded a VA audiological examination in February 2014. The VA examiner opined that the Veteran’s bilateral sensorineural hearing loss and tinnitus were not at least as likely as not caused by or a result of service. The examiner noted that audiometric testing performed at enlistment and separation revealed normal hearing bilaterally and that a comparison of these test results indicated that the Veteran experienced no significant changes in his hearing for either ear during service. The examiner also noted that a diagnosis of noise-induced tinnitus required a diagnosis of noise-induced hearing loss or an association between tinnitus onset and some noise-related event. The February 2014 VA examiner did not address the Veteran’s contentions that he was exposed to a significant amount of military noise. Furthermore, the Board notes that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). For these reasons, the Board finds that a remand is required to obtain an additional medical opinion regarding the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to service connection for left eye glaucoma (claimed as a bilateral eye disorder), to include as due to exposure to contaminated water at Camp Lejeune, is remanded. 5. Entitlement to service connection for osteosarcoma (claimed as bone cancer), to include as due to exposure to contaminated water at Camp Lejeune, is remanded. 6. Entitlement to service connection for a right shoulder disorder associated with osteosarcoma is remanded. 7. Entitlement to service connection for a right hip disorder associated with osteosarcoma is remanded. 8. Entitlement to service connection for type II diabetes mellitus is remanded. 9. Entitlement to service connection for erectile dysfunction associated with type II diabetes mellitus and/or an acquired psychiatric disorder is remanded. 10. Entitlement to service connection for back pain is remanded. 11. Entitlement to service connection for right foot plantar fasciitis is remanded. 12. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. During the February 2014 VA mental disorders examination, the Veteran reported that he had applied for Social Security benefits. He also reported that he was denied Social Security and waiting on a hearing with a judge in an April 2014 VA treatment note. However, the claims file does not contain any decision to grant or deny benefits or the records used to make that determination. Thus, on remand, any available records from SSA should be requested. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, there may be outstanding relevant treatment records from the Veteran’s periods of incarceration in 2001, 2008, and 2009. For instance, in an August 2002 VA treatment note, the Veteran indicated that he was released from prison in December 2001 and that he did see a physician while he was incarcerated. Therefore, on remand, any outstanding treatment records from the Veteran’s periods of incarceration should be requested. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the claimed disorders. A specific request should be made for records from any treatment records from correctional facilities during the Veteran’s various periods of incarceration in 2001, 2008, and 2009. The AOJ should also secure any outstanding VA treatment records. 2. The AOJ should obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for those records has negative results, the claims file should be properly documented as to their unavailability. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to active service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any combat-related stressors or stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity or a combat-related stressor. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, a VA medical opinion should be obtained to determine the nature and etiology of any hearing loss and tinnitus that may be present. An examination should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions or statements by the Veteran. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s bilateral hearing loss and tinnitus is related to his military service, to include any noise exposure and symptomatology therein. The examiner should also specifically address the Veteran’s contentions. In rendering his or her opinion, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that the disorders were caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.