Citation Nr: 21022646 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-26 464 DATE: April 16, 2021 ORDER New and material evidence having been received, the claim for service connection for Alzheimer’s disease and dementia is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for a right forearm fracture is denied. Entitlement to service connection for a right wrist fracture is denied. Entitlement to service connection for a renal cyst is denied. Entitlement to service connection for atherosclerosis is denied. REMANDED Entitlement to service connection for Alzheimer’s disease, to include dementia is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include emphysema is remanded. FINDINGS OF FACT 1. A July 2016 rating decision denied the Veteran’s claims for service connection for Alzheimer’s disease and dementia; the Veteran did not appeal the decision or submit new and material evidence within the appeal period, and the decision is final. 2. Evidence received since the July 2016 rating decision is new and relates to an unestablished fact necessary to substantiate the claims or raises a reasonable possibility of substantiating the claims for service connection for Alzheimer’s disease and dementia. 3. A right forearm fracture was not shown during service or currently, and there is no probative evidence suggesting any current right forearm symptomatology is related to service. 4. A right wrist fracture was not shown during service or currently, and there is no probative evidence suggesting any current right wrist symptomatology is related to service. 5. A renal cyst was not shown during service or for many years thereafter, and there is no probative evidence suggesting a current renal cyst is related to service. 6. Atherosclerosis was not shown during service or for many years thereafter, and there is no probative evidence suggesting the condition is related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for Alzheimer’s disease and dementia, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 2. The criteria to establish service connection for a right forearm fracture are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria to establish service connection for a right wrist fracture are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria to establish service connection for a renal cyst are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 5. The criteria to establish service connection for atherosclerosis are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1961 to March 1964. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran’s custodian testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim for service connection for Alzheimer’s disease and dementia Generally, if a claim for entitlement to 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 decision makers. 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. 38 C.F.R. § 3.156 (a). New and material evidence can be construed as that which contributes to a more complete picture of the circumstances surrounding the origin of a Veteran’s disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). A July 2016 rating decision denied the Veteran’s claims for Alzheimer’s disease and dementia on the basis that the evidence did not show the conditions were incurred in or caused by service. The RO considered the Veteran’s statements, service personnel, service treatment records and private treatment records. The Veteran did not perfect an appeal or submit new and material evidence during the appeal period, and the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In June 2018, the Veteran submitted a request to reconsider the claims for Alzheimer’s disease and dementia. In an August 2018 rating decision, the RO denied reopening the claims. Substantive evidence received since the July 2016 rating decision includes the Veteran’s statements, the January 2021 Board testimony, medical articles submitted by the Veteran, and VA and private treatment records. Some of this evidence is new. It is also material as it contributes to a more complete picture surrounding the origins of the claimed conditions. Accordingly, the Board finds that new and material evidence has been received, and the claims for service connection for Alzheimer’s disease and dementia are reopened. See 38 U.S.C. § 5108, 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110, at 117-120. 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. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and renal disease, or organic disease of the nervous system become manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 2. Entitlement to service connection for a right forearm fracture 3. Entitlement to service connection for a right wrist fracture During the January 2021 Board hearing, the Veteran was unable to provide testimony due to his medical conditions; however, his stepdaughter testified that the Veteran’s arm and wrist tremble and shake. She did not recall being told that the Veteran injured his right forearm or wrist during service and she had not been told by any clinician that the claimed conditions were related to service. The question for the Board is whether the Veteran is currently diagnosed with a right forearm fracture and/or right wrist fracture, or residual disability, and if so, whether the condition was incurred in or is related to service. After reviewing the record, the Board finds that the preponderance of competent and probative evidence is against the claims. VA and private treatment records during the pendency of the appeal, or proximate to the January 2018 claim for service connection, do not document a diagnosis of a right forearm fracture or right wrist fracture, or residual disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While a May 2017 VA treatment record notes “a historical right arm,” the clinician noted there was no current pain and physical examination of the extremities was normal. VA treatment records in January 2018, February 2018, July 2018, August 2018 and October 2019 do not document any findings or diagnosis pertaining to a right forearm or right wrist fracture, and examination of the extremities was normal. Further, while these medical treatment records reflect complaints of low back pain, they do not document complaints related to the forearm or wrist suggesting that the Veteran would have mentioned other musculoskeletal complaints, such as right forearm or right wrist problems, had such been occurring. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board acknowledges a December 2017 VA treatment record, which notes complaints of intermittent bilateral upper extremity postural and action tremors, and hand and arm shaking, had been witnessed by the stepdaughter; however, while a diagnosis of essential tremor by history was noted, the clinician indicated that no tremors were noted on examination and a current diagnosis of a forearm or wrist condition was noted rendered. To the extent the Veteran asserted that he suffers from current right forearm and right wrist disabilities that are related to service, he has not been shown to have the specialized training sufficient to diagnose or determine the etiology of such. See 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). Although the Veteran is competent to report pain and tremors, the diagnosis and etiology of forearm and wrist disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion is not competent medical evidence. Moreover, to the extent the Veteran has asserted that the claimed conditions were incurred during service, the Board finds the Veteran’s February 1964 separation examination, which showed the upper extremities and musculoskeletal examination were normal, to be more persuasive and probative than any lay assertion of an injury or disability occurring during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). As a final matter, the Board notes that a VA examination or opinion has not been obtained in this case. However, there is no competent and credible evidence of a right forearm or right wrist injury during service and no medical evidence suggesting any current complaints concerning the right forearm or wrist are related to service; thus, a VA examination or medical opinion is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would “eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran’s disability case”). 4. Entitlement to service connection for renal cyst 5. Entitlement to service connection for atherosclerosis A July 2014 CT scan found atherosclerotic changes of the aorta and a September 2014 ultrasound revealed a cystic lesion in the left kidney. Thus, current disabilities are shown. The question for the Board is whether the conditions are related to service. After reviewing the record, the Board finds that the preponderance of competent and probative evidence is against the claims. Service treatment records are negative for any renal or atherosclerotic complaints or findings. An April 2003 employment examination was negative for renal or atherosclerotic conditions as well. The first indications of these conditions in the record is in 2014. As there is no evidence of a renal condition or atherosclerosis during service or in the year following discharge from service, competent evidence linking those conditions to service is needed. However, there is no medical opinion of record even suggesting the current conditions are in any way related to service. While the Veteran has alleged the he was exposed to mustard gas during service, an inquiry to the Department of Defense database of known mustard gas testing participants did not confirm the Veteran participated in such testing. The Board notes that a VA examination or opinion has not been obtained on these claims. However, there is no competent and credible evidence of a renal cyst or atherosclerosis during service and no medical evidence even suggesting such conditions are related to service. Thus, a VA examination or medical opinion is not required. See 38 C.F.R. § 3.159(c); see also McLendon, 20 Vet. App. at 84; Waters, 601 F.3d at 1278). The Board is grateful for and values the Veteran’s service to this country. However, based on the record before it, the Board concludes that the preponderance of probative evidence is against the claims for service connection for a right forearm fracture, right wrist fracture, renal cyst, and atherosclerosis, and the claims are denied. In reaching these decisions, the Board considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claims, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 6. Entitlement to service connection for Alzheimer’s disease, to include dementia 7. Entitlement to service connection for COPD, to include emphysema The Veteran contends that the claimed Alzheimer’s disease, dementia, COPD and emphysema were caused by in-service exposures, to include asbestos. He has also alleged mustard gas exposure, but such exposure has not been established. From the description provided by his stepdaughter during the hearing, it appears the Veteran was likely referring to the gas chamber exercise during basic training. Moreover, the service treatment records indicate the Veteran appeared to have been diagnosed with an upper respiratory infection on August 16, 1961. The Board finds a medical opinion is warranted. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA respiratory examination to address the claim for service connection for COPD and emphysema. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and the results reported. If the Veteran’s medical conditions prevent him from being able to report to the examination, an opinion should still be requested based on file review. After reviewing the claims file and examining the Veteran, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the claimed COPD/emphysema is related to service, to include the in-service upper respiratory infection on August 16, 1961, a gas chamber exercise commonly occurring during basic training, or alleged asbestos exposure. The examiner should explain why or why not. 2. Schedule the Veteran for a VA neurological examination to address the claim for service connection for Alzheimer’s disease/dementia. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and the results reported. If the Veteran’s medical conditions prevent him from being able to report to the examination, an opinion should still be requested based on file review. After reviewing the claims file and examining the Veteran, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the claimed Alzheimer’s disease/dementia, is related to a gas chamber exercise commonly occurring during basic training or alleged asbestos exposure, or is otherwise related to service. The examiner should explain why or why not. 3. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.