Citation Nr: 21021826 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-12 451 DATE: April 14, 2021 ORDER New and material evidence has been received to reopen the claim for service connection for urethral stricture. Service connection for a left ankle disability is denied. Service connection for residuals of tonsillitis is denied. REMANDED Entitlement to service connection for urethral stricture, to include as secondary to service-connected peptic ulcer disease, is remanded. Entitlement to service connection for prostate cancer, to include as secondary to a urethral stricture, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) to include as secondary to service-connected peptic ulcer disease, is remanded. FINDINGS OF FACT 1. A September 1968 rating decision denied service connection for urethral stricture and the Veteran did not timely initiate an appeal of that decision. 2. Evidence submitted since the September 1968 rating decision is not cumulative or redundant of evidence of record at the time of the denial; it relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for urethral stricture, and it raises a reasonable possibility of substantiating the claim. 3. A left ankle disability was not manifested in service; arthritis of the left ankle was not manifested in the Veteran’s first post service year; and his current left ankle disability is not shown to be related to his active service. 4. The preponderance of the evidence does not support a finding that the Veteran suffers from residuals of tonsillitis that was incurred in or related to his active service. CONCLUSIONS OF LAW 1. The September 1968 rating decision that denied service connection for urethral stricture is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.302, 20.1103. 2. Evidence received after the September 1968 rating decision is new and material and serves to reopen the Veteran’s claim of entitlement to service connection for a urethral stricture. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 3. The criteria for establishing service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for establishing service connection for residuals of tonsillitis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1951 to November 1953. A virtual hearing before the Board of Veterans’ Appeals (Board) was held in October 2020. A hearing transcript is of record. At the virtual hearing, the record was held open for 30 days for the submission of additional evidence. Additional VA treatment records have been submitted by the Veteran’s representative and are considered by the Board in this decision. Lastly, the Board observes, in September 2020, the Veteran filed a VA Form 10182, Notice of Disagreement (NOD), regarding the effective date and evaluation assigned for his service-connected peptic ulcer disease. This appeal has been filed under the Appeals Modernization Act (AMA). Because the claims presently before the Board are appealed in the Legacy system, the Veteran’s September 2020 NOD will be addressed in a separate decision at a later time. New and Material Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen the claim for service connection for urethral stricture. In a September 1968 rating decision, the Veteran was denied service connection for urethral stricture. He filed a notice of disagreement with that decision in October 1968. A Statement of the Case was issued in October 1968. While the Veteran filed a VA Form 9, Appeal to the Board, in November 1968, his disagreement was limited to the issue of entitlement to service connection for a disorder of the left side of the body, and the Veteran did not perfect an appeal as to the issue of entitlement to service connection for urethral stricture. Therefore, the September 1968 decision is final as to that issue. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 3.104, 3.156(b), 20.302, 20.1103. Since the September 1968 rating decision, the Veteran has provided additional evidence, including hearing testimony before the Board. During the Veteran’s hearing before the Board, the Veteran provided additional details regarding his disability, reporting he underwent surgery to “split his penis” so he could more easily urinate. Years later, he discovered that he must drink large volumes of water every day to make sure the flow remains and if his bladder gets too full, he suffers from bleeding. Importantly, he advanced a secondary causation theory that his urethral stricture is caused or aggravated by his service-connected duodenal ulcer. This evidence is considered new and material as it provides additional information relating to an unestablished fact necessary to substantiate these service connection claims. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the claim for service connection for urethral stricture is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (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, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for a left ankle disability The Veteran contends he suffers from a left ankle disability which was caused by an injury he sustained during his military service. At the October 2020 hearing, the Veteran testified he injured his left ankle on a 5-mile march where he had to carry his rifle. He tripped climbing up a hill on rocks and fell into a swamp, and had to wait for an ambulance to arrive in order to move. He reported suffering from ankle pain and swelling as a result of the in-service injury, which had continued in the years following his separation from service, and also reported seeking treatment “off and on” as his ankle had been continuously swollen. The medical evidence of record supports a finding that the Veteran has a current diagnosis of degenerative arthritis of the left ankle as evidenced by the May 2017 VA examination and corresponding May 2017 x-ray examination. Degenerative disc disease or arthritis of the ankle is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran’s service treatment records (STRs) show that in February 1953, he was treated for swelling in the left ankle that was also negative for any fractures. See STR. Subsequent STRs are silent for any additional treatment related to the left ankle and in November 1953, the Veteran was examined for purposes of separation. A clinical evaluation of the feet and lower extremities was normal; the report also noted that the Veteran had “no significant medical history.” See November 1953 Report of Medical Examination. As for the Veteran’s post-service treatment records and VA examination report, while they include a diagnosis of arthritis of the left ankle, the VA examination report with corresponding medical opinion does not support a finding that his current left ankle condition is related to a military service injury or that he has had continuous ankle pain since his service. As previously mentioned, the Veteran was provided a VA examination in May 2017 where he was diagnosed with degenerative arthritis of the left ankle. The examiner found the Veteran did not have a diagnosis of left ankle fracture condition that was incurred in or caused by the left ankle fracture in service or during service. Therefore, the examiner concluded it was less likely than not that his present condition was incurred in or caused by service. In support of that opinion, the examiner noted the STR dated February 19, 1953 showed some swelling in the left ankle but was negative for fracture. The examiner concluded there was no medical evidence documenting the Veteran incurred a left ankle fracture during service. See May 2017 VA medical opinion. Based on the foregoing medical opinion, it is not shown that the Veteran’s current left ankle disability had its onset in service, within one year of separation from service, or was otherwise caused by his service. As highlighted by the VA examiner, while he was treated for a swollen left ankle during his service, there was no fracture noted. Furthermore, the Veteran’s November 1953 Report of Medical Examination for purposes of separation is silent for any residuals of his left ankle injury. Although the Veteran argues he suffered an in-service injury that has resulted in continuous pain, the available VA treatment records show only a few notations regarding edema in the ankle and do not otherwise show that he has received medical care for arthritis, including pain, in his left ankle. To the extent the Veteran believes he has a current left ankle disability related to military service, he is not competent to provide a nexus opinion regarding this issue. Whether a current disability is related to a remote incidence in service involves medical questions and is not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In conclusion, the Board finds that there is no probative evidence to warrant service connection for a left ankle disability. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. Service connection for a left ankle disability is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). 3. Entitlement to service connection for residuals of tonsillitis At the October 2020 Board hearing, the Veteran testified that he suffers from residuals of his in-service diagnosis of tonsillitis. He stated that when he left the military, he suffered from an inability to talk and experienced his throat being irritated and clogged. He also reported that he suffered from these symptoms anytime the weather changed, particularly when he breathed air into his lungs, roughly two to three times a year. When this happens, he stated he will experience swelling and soreness. He reported that he did not seek medical care for these symptoms. Instead, he took medication to treat his throat problems himself, including throat lozenges and antiseptic. Service treatment records confirm the Veteran was treated for acute bilateral tonsillitis; organism undetermined, in February 1952. See STR. The condition was found to be acute in nature, but the Veteran argues he has experienced chronicity of those symptoms. However, contrary to the Veteran’s contention regarding chronic symptoms, his November 1953 Report of Medical Examination for purposes of separation noted the Veteran had “no significant medical history” and no signs, symptoms or diagnosis of tonsillitis were documented at separation. See STR. The Veteran’s post-service treatment records and VA examination report with corresponding medical opinion also do not support a finding that he has residuals of tonsillitis that is related to a military service injury. Notably, the May 2017 VA examiner diagnosed the Veteran with acute tonsillitis but noted the Veteran had not specified any complaint or condition related to his residuals of tonsillitis. In fact, the Veteran advanced no complaint at the date of the examination and his medical record revealed no ongoing treatment for a chronic pharyngeal condition. The examiner noted that the Veteran had received care for allergic rhinitis, but explained that the nasal did not share a pathophysiology with an acute infection of the posterior throat, like tonsillitis. Therefore, the examiner could not affirm the Veteran’s claim. See May 2017 VA examination and opinion. Based on the foregoing medical opinion, it is not shown that the Veteran suffers from any residuals of tonsillitis which had its onset in service or was otherwise caused by his service. As highlighted by the VA examiner, while he suffered tonsillitis during his service, the incident was acute in nature. The Veteran did not specify any complaints at his VA examination, nor has he received ongoing treatment for a chronic pharyngeal condition. Instead, it is noted that he has allergic rhinitis, for which he had received treatment, but the pathology of an acute infection of the throat, such as tonsillitis, is different from the nasal path involved with allergies. Although the Veteran argued at his Board hearing that he has suffered from residuals of tonsillitis following his service, as previously discussed, the available treatment records do not support his claim. He is also not competent to establish that the symptoms he described at the October 2020 hearing are residuals from his in-service tonsillitis, as the Veteran has not demonstrated the necessary medical expertise. Therefore, to the extent the Veteran believe he has current residuals of tonsillitis related to military service, he is not competent to provide a nexus opinion regarding this issue. Whether a current disability is related to a remote incidence in service involves medical questions and is not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In conclusion, the Board finds that there is no probative evidence to warrant service connection for residuals of tonsillitis. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. Service connection for residuals of tonsillitis is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for urethral stricture, to include as secondary to service-connected peptic ulcer disease, is remanded. As discussed previously, during the October 2020 hearing, the Veteran testified he suffers from a urethral stricture that has required surgery on more than one occasion. In addition to arguing his condition is directly related to his military service, he advanced the secondary causation theory that his urethral stricture is been caused or aggravated by his service-connected duodenal (peptic) ulcer. Considering the Veteran’s hearing testimony which advanced a secondary theory of causation, the Board finds VA’s duty to provide an examination has been triggered. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A remand is therefore required to obtain a VA examination prior to adjudicating this claim. 2. Entitlement to service connection for prostate cancer, to include as secondary to a urethral stricture, is remanded. The Veteran has been diagnosed with prostate cancer. At the October 2020 Board hearing, he testified that his doctors have told him that his prostate cancer is caused by “fooling with unclean women” during his service. He also advanced an alternative theory that his prostate cancer is secondarily cause by his urethral stricture, reporting that a doctor has also informed him his bladder, or his urethra caused his prostate cancer. See Hearing Transcript. The record does not include a medical opinion regarding the Veteran’s direct service connection claim for his prostate cancer, mainly, his argument that his cancer is caused by “fooling with unclear woman”. Additionally, because the Veteran has advanced a secondary theory of causation for his prostate cancer, a decision on the service connection for urethral stricture could significantly impact a decision on the issue of service connection for prostate cancer. Therefore, the issues are inextricably intertwined. A remand of the claim for this issue is required. 3. Entitlement to service connection for an acquired psychiatric disorder to include PTSD as secondary to service-connected peptic ulcer disease is remanded. Lastly, the Veteran also contends he suffers from an acquired psychiatric disorder, to include PTSD as a result of his service-connected peptic ulcer disease. Specifically, at the Board hearing, the Veteran clarified that he is not seeking service connection for his condition as a direct result of his military service. Instead, he testified that his current stress and anxiety is a result of his service-connected ulcers/nerves which cause him to feel anxious. He described his anxiety as manifesting in difficulties sleeping and feeling like his nerves are shot. He reported that he had been taking medication for anxiety for 40 years now. See Hearing Transcript and see VA Statement in Support of the Claim. Considering the Veteran’s hearing testimony which includes a newly advanced secondary theory of causation, the Board finds VA’s duty to provide an examination has been triggered. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A remand is therefore required to obtain a VA examination prior to adjudicating this claim. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his urethral stricture. The examiner must review the claims file and provide a response to the following: a) Is the urethral stricture at least as likely as not related to service? b) Is the urethral stricture at least as likely as not proximately due to his service-connected peptic ulcer disease or aggravated beyond its natural progression by the service-connected peptic ulcer disease? Provide a rationale to support the opinions. 2. Schedule the Veteran for a VA examination for his prostate cancer. The examiner must review the claims file and provide a response to the following: a) Is the prostate cancer at least as likely as not related to service, including “fooling with unclean woman”? b) Is the prostate cancer at least as likely as not proximately due to his urethral stricture or aggravated beyond its natural progression by the urethral stricture? Provide a rationale to support the opinions. 3. Schedule the Veteran for a VA examination for his acquired psychiatric disorder. The examiner must review the claims file and provide a response to the following: a) Does the Veteran have a diagnosis of an acquired psychiatric disorder? b) For any diagnosis rendered, is it at least as likely as not proximately due to the Veteran’s service-connected peptic ulcer disease or aggravated beyond its natural progression by the service-connected peptic ulcer disease? (Continued on the next page)   Provide a rationale to support the opinions. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.