Citation Nr: 21022416 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 20-13 826 DATE: April 15, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for bilateral hip disorders is reopened. New and material evidence having been received, the claim for entitlement to service connection for a left foot disability is reopened. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for radiculopathy of the left lower extremity is denied. Entitlement to service connection for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for left upper extremity cervical radiculopathy is remanded. Entitlement to service connection for a right upper extremity cervical radiculopathy is remanded. FINDINGS OF FACT 1. In a final October 2005 rating decision, the RO denied the Veteran’s claims for service connection for bilateral hip and foot disorders. 2. The evidence received since the October 2005 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claims for service connection for bilateral hip and left foot disorders. 3. The preponderance of the evidence is against finding that GERD began during active service or for many years thereafter, and the condition is otherwise shown to be related to service. 4. The Veteran’s right and left lower extremity radiculopathy were not incurred in service or for many years thereafter, they are not related to any aspect of service, nor are they shown to be secondary to a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for bilateral hip disorders is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received, and the claim for service connection for left foot disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty October 1960 to October 1963. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. New and Material Evidence Claims 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hip disorders 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left foot disability Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In an unappealed October 2005 rating decision, the RO denied service connection for bilateral hip and left foot disorders because the claimed conditions were not shown to be caused or aggravated by service. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the October 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the prior decision, the record included the service records which showed treatment for foot problems, including ingrown toenails. The records also documented a left sacroiliac contusion. Additionally, the Veteran’s personnel records show that he was awarded the Parachutist Badge. The evidence received since the October 2013 decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. In February 2021, the Veteran provided testimony regarding the in-service onset of his claimed disabilities and he related the claimed disorders to military parachuting duties. The credibility of this evidence is presumed for purposes of reopening these claims. See Justus, 3 Vet. App. at 513. Accordingly, the claims are reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for GERD The Veteran seeks service connection for GERD. At the Board hearing, the Veteran testified that he experienced some stomach problems in service, but he did not seek treatment at that time or until many years after service. Reportedly, he was diagnosed with GERD in 2004, many years after service. The service treatment records contain no complaints, history, or findings consistent with GERD. On separation from service in September 1963, the Veteran’s abdomen and gastrointestinal system were clinically evaluated as normal, and the Veteran denied a history of stomach trouble. It is important to note that at that point above it is the Veteran who provides evidence against the claim. After service, there is no evidence of treatment for, or a diagnosis of GERD prior to 2004. Thus, the evidence does not reflect GERD in service or within one year following discharge from service, or until more than four decades after discharge from service. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records. Thus, the Veteran has not adequately shown that GERD had onset in service and continued since service. Here, there is no competent and credible evidence of a nexus between the Veteran’s GERD and service. The only evidence of record in support of such a nexus is the Veteran’s lay opinion. To the extent the Veteran believes that his claimed disability is related to service, as a lay person, the Veteran does not have the specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The diagnosis and/or etiology of gastrointestinal disability requires medical testing and expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current claimed disorder, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s assertions regarding the etiology of GERD, diagnosed many years after service, and service, are of little probative value. In this regard, it is important for the Veteran to understand that the post-service treatment records provide particularly negative evidence against this case. A VA examination or medical opinion regarding the etiology of his GERD is not indicated as there is no suggestion that the Veteran’s claimed disorder may be associated with service. Moreover, there is no competent and probative evidence to show that the Veteran had GERD during or contemporaneous with service and no competent and probative evidence that his claimed disorder is related to his service. Given the foregoing, the Board finds that the preponderance of the evidence is against the claims for service connection for GERD, and that the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, supra. 4. Entitlement to service connection for radiculopathy of the left lower extremity 5. Entitlement to service connection for radiculopathy of the right lower extremity The Veteran seeks service connection for bilateral lower extremity radiculopathy as secondary to a spine disability. The service treatment records show that the Veteran incurred a left leg contusion in a motor vehicle accident in August 1962. The service treatment records contain no complaints, history, or findings consistent with a chronic leg disorder. On separation examination in September 1963, the Veteran’s feet, lower extremities, and neurologic systems were clinically evaluated as normal. After service, VA treatment records since 2016 noted an assessment of lumbar radiculopathy. An EMG/NVC study in April 2019, were suggestive of S1 radiculopathy of the right leg, along with clinical symptoms of foot drop related to long-standing back issues. Thus, the Board notes that the Veteran was not shown to have radiculopathy in service or within one year following discharge from service, as such, service connection cannot be established for radiculopathy on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran has not asserted, nor does the record reflect that either his radicular symptoms first manifested during service or were otherwise related to any aspect of his service. It has only been claimed that the disabilities are secondary to a spine disability. Here there is no competent medical evidence that associates the Veteran’s right or left lower extremity radiculopathy with the service connected neck disability. There is no competent and credible evidence of a nexus between the Veteran’s right or left lower extremity radiculopathy and service or a service-connected disability. The only evidence of record in support of such a nexus is the Veteran’s lay opinion. To the extent the Veteran believes that this problem is due to service or a service connected disability, as a lay person, the Veteran does not have the specialized training sufficient to render such an opinion. Jandreau, 492 F.3d at 1377. The diagnosis and/or etiology of radiculopathy require medical testing and expertise to determine. Thus, the Veteran’s assertions regarding the etiology of his right or left lower extremity radiculopathy, diagnosed many years after service, and service or a service-connected disability, are of little probative value. In this regard, it is important for the Veteran to understand that the post-service treatment records provide particularly negative evidence against this case. Additional VA examination or medical opinion regarding the etiology of right or left lower extremity radiculopathy is not indicated as there is no suggestion that the Veteran’s claimed disorders may be associated with service or a service-connected disability. Again, there is no competent evidence of right or left lower extremity radiculopathy in service or for many years following discharge from service. To the extent the medical evidence associates the radiculopathy of the lower extremities to a lumbar spine disability, service connection for a low back disability has not been established. As such, there is no factual or legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); See Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND 1. Entitlement to service connection for a left foot disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. 5. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he has a left foot disability due to injuries incurred in a motor vehicle accident (MVA) in August 1982. In the alternative, he asserts that he developed a left foot condition as a result of multiple parachute jumps during service. He also asserts that he developed right and left knee disorders, and right and left hip disabilities due to his military parachuting duties. At the February 2021 Board hearing, the Veteran asserted that due to multiple parachute jumps and the August 1982 MVA, his toes were mangled. As a result, his left foot would swell and he had calluses and hammertoes that required treatment, including surgeries. The Veteran’s service personnel records confirm that he was awarded the Parachutist Badge. The service records showed treatment for foot problems. In November 1961 was seen for bilateral ingrown toenails, not acute. In December 1961 a left sacroiliac contusion was noted after the Veteran was injured in a fall. On separation examination in September 1963, the Veteran’s feet, upper and lower extremities, were clinically evaluated as normal. The Veteran denied a history of trick or locked knee or foot trouble. Post-service treatment records after 2000, show extensive treatment for multiple foot problems, including painful elongated toenails, painful calluses, hammertoes, onychomycosis, tyloma, cavus foot and metatarsalgia. In October 2000, the Veteran was seen for right hip pain following an MVA two weeks earlier. Imaging studies of the hips and knees in 2009 revealed osteoarthritis. In 2016, he was seen for left sacroiliitis that required surgical treatment in 2017. The Veteran has not yet been afforded a VA examination in regard to his claims. Given the presence of current disabilities, the Veteran’s contentions, and the fact that he is the recipient of the Parachute Badge, the Board finds that the low threshold requirement has been met for a VA examination, and a remand is necessary for the VA to fulfill its duty to assist and afford the Veteran an examination to determine the nature and etiology of his left foot condition, bilateral knee disorders, and bilateral hips disabilities to his active service, to specifically include as due to his military parachuting duties and/or injuries incurred in service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 6. Entitlement to service connection for left upper extremity cervical radiculopathy is remanded. 7. Entitlement to service connection for a right upper extremity cervical radiculopathy is remanded. The Veteran seeks service connection for bilateral upper extremity radiculopathy as secondary to his service-connected neck disability. The record reflects conflicting evidence as to whether a diagnosis of radiculopathy of the upper extremities is warranted. VA care providers throughout the appeal have provided a diagnosis of cervical radiculopathy based on clinical observation and consideration of the Veteran’s reported symptomatology. Significantly, a September 2014 cervical spine MRI revealed moderate to severe degenerative change throughout the cervical spine with mild spinal cord compression, spinal cord edema/myelomalacia, moderate bilateral neural foraminal impingement and multilevel severe neural foraminal impingement. However, when objective testing was conducted by a VA examiner in November 2018, results were reported to be inconsistent with the diagnosis. The examiner noted that while the Veteran reported subjective complaints of left upper extremity radicular symptoms, there was no objective evidence found on exam to warrant a diagnosis of cervical radiculopathy. Examination and complete testing are required to clarify the diagnosis. In this regard, there is nothing in this record to suggest that the neck problem has caused any lower extremity problem. The matters are REMANDED for the following action: 1. Obtain all outstanding relevant VA treatment records. If possible, the Veteran should get any new records himself. 2. After the above development is completed, schedule the Veteran for a VA examination to ascertain whether the Veteran currently has disabilities of the left foot, knees and hips that that are due to service. The claims file must be reviewed by the examiner and the examination report should note that review. The examiner should specifically opine as to the following: a) Diagnose all left foot disorders found to be present, other than the service-connected left ankle disability. b) Diagnose all right and left knee disorders found to be present. c) Diagnose all right and left hip disorders found to be present. d) State whether it is at least as likely as not (50 percent probability or greater) that any current left foot, right knee, left knee, right hip and/or left hip disability, are related to the Veteran’s active service or to any incident of service, to include military parachuting duties and/or August 1962 MVA. (Continued on the next page)   In providing his or her opinion, the examiner should note the Veteran received a parachutist badge. The examiner should consider the Veteran’s statements regarding his symptoms in service and his statements of continuous symptoms after service. The report should include the complete rationale for all opinion(s) expressed. 3. Schedule the Veteran for an appropriate VA examination to determine if the Veteran has a diagnosis of radiculopathy in the upper extremities. The claims file should be made available for review by the VA examiner. All appropriate testing should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to determine whether the Veteran has ever had a diagnosis of right and/or left upper extremity radiculopathy throughout the period of the claim (from 2018 to the present). If none is found, the examiner must reconcile his or her finding with those findings in the VA treatment notes which show symptoms and a diagnosis of cervical radiculopathy. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.