Citation Nr: 21024590 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-33 779 DATE: April 23, 2021 ORDER New and material evidence to reopen the claims for entitlement to service connection for diabetes mellitus with paresthesia, hypertension, ischemic heart disease (IHD), and gastroesophageal reflux disease (GERD), has been received; thus, the claims are reopened. REMANDED In addition, entitlement to service connection for the following issues are remanded: diabetes mellitus with paresthesia, hypertension, IHD, GERD, and recurrent glottic squamous cell carcinoma (claimed as right vocal chord #1 and #2 well differentiated). FINDINGS OF FACT 1. In June 2011 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for diabetes mellitus with paresthesia, hypertension, IHD, and GERD. That rating decision was not appealed and became final. 2. Since the June 2011 rating decision, the Veteran has submitted new and material evidence sufficient to reopen his claims. CONCLUSIONS OF LAW 1. The June 2011 rating decision is final with respect to the Veteran’s claims to establish service connection for diabetes mellitus with paresthesia, hypertension, IHD, and GERD. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The additional evidence received since the June 2011 rating decision is new and material to the claims for entitlement to service connection for diabetes mellitus with paresthesia, hypertension, IHD, and GERD; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from September 1972 to September 1974. The Veteran and his spouse appeared and testified at a hearing before the undersigned Veteran’s Law Judge (VLJ) in February 2020. A transcript of the hearing is associated with the record. In a statement received February 2020, the Veteran appears to link a right ankle injury and psychological distress to his service. Should the Veteran desire service connection for those conditions, he should file a formal claim for service connection. New and Material Evidence 1. Whether new and material evidence to reopen the claims for entitlement to service connection for diabetes mellitus with paresthesia, hypertension, IHD, and GERD has been received Entitlement to service connection for diabetes mellitus with paresthesia, hypertension, IHD, and GERD was denied in June 2011, because the Veteran’s conditions were not one of the known conditions associated with exposure to herbicide agents. (The Board notes that the Veteran did not claim that his conditions were due to herbicide agents, but rather due to exposure to asbestos and his duty assignments). At that time, the Veteran’s claims file included service treatment records (STRs) and post-service treatment records. The Veteran did not appeal. Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. VA defines “new” evidence is existing evidence not previously submitted to agency decisionmakers. “Material” evidence is 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 neither be 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. See 38 C.F.R. § 3.156(a). Regardless of what action was taken by the agency of original jurisdiction, the Board is under a statutory obligation to conduct a de novo review of the new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id., at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Since the original denial, additional evidence was associated with the claims file, which includes private examinations, private treatment records, VA treatment records, and several lay statements, to include the Veteran’s testimony. The above evidence is “new,” as it was not before VA at the time of the June 2011 rating decision, and “material” as it raises the reasonable possibility of substantiating the previously-denied issue (i.e. clarifying the exposure events). Therefore, the Board finds that new and material evidence has been submitted sufficient to reopen the claims of service connection for diabetes mellitus with paresthesia, hypertension, IHD, and GERD. REASONS FOR REMAND 2. Entitlement to service connection for diabetes mellitus with paresthesia is remanded. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for IHD is remanded. 5. Entitlement to service connection for GERD is remanded. The Veteran contends that he should be awarded service connection for diabetes mellitus with paresthesia, hypertension, IHD, and GERD because he was exposed to asbestos and other environmental irritants during service. The Veteran does not assert he was exposed to herbicidal agents in service. Upon review of the file, it appears that the agency of original jurisdiction (AOJ) denied the Veteran’s current claim for service connection because the claimed conditions are not “associated with asbestos exposure.” It is unclear under what authority the AOJ made this determination because there is no statutory authority finding certain diseases are associated with asbestos exposure. A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board finds that the Veteran was exposed to asbestos as a result of the his military occupational specialty of combat engineer/carpenter. As the Veteran was exposed, he believes his conditions are related to asbestos, and no VA examination has been conducted, the Board finds that a remand for an examination is warranted in this case. 6. Entitlement to service connection for recurrent glottic squamous cell carcinoma (claimed as right vocal chord #1 and #2 well differentiated is remanded. The Veteran contends that he was exposed to contaminated water at Camp Lejeune and his carcinoma condition is related to that exposure. If a Veteran meets the requirements of 38 C.F.R. § 3.307(a)(7) related to contaminated water at Camp Lejeune (which this Veteran does), 38 C.F.R. § 3.309(f) allows service connection for certain diseases even though there is no record of such a disease during service. Recurrent glottic squamous cell carcinoma is not one of the listed diseases. Nevertheless, the Veteran (through his spouse) asserts that his carcinoma should be service-connected because the location of the Veteran’s carcinoma was in his throat and he drank the water (that went down his throat). The Veteran was not afforded a VA examination for his claim because his carcinoma is not a listed disease in 38 C.F.R. § 3.309(f). As explained above, when requirements are met, VA examinations are warranted. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, supra. Here, the Veteran was exposed to contaminated water; therefore, an examination and associated medical opinion should be obtained to address the relationship between contaminated water at Camp Lejeune and his carcinoma. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from April 2018 to the present. 2. Obtain a medical examination from an appropriately qualified medical professional on the Veteran’s diabetes mellitus with paresthesia condition. After a review of the pertinent records, the clinician should answer the following question: Is it at least as likely as not that the Veteran’s diabetes mellitus with paresthesia condition is etiologically related to service, to include as due to exposure to a) asbestos; b) fumes, dust, and steam associated with Navy ships; or c) tick or mosquito bites? The examiner is advised that a negative opinion cannot be based solely on the fact that the condition was not noted in the Veteran’s service records. The underlying reasons for the conclusions reached must be included in the opinion. 3. Obtain a medical examination from an appropriately qualified medical professional on the Veteran’s hypertension condition. After a review of the pertinent records, the clinician should answer the following question: Is it at least as likely as not that the Veteran’s hypertension is etiologically related to service, to include as due to exposure to a) asbestos; b) fumes, dust, and steam associated with Navy ships; or c) tick or mosquito bites? The examiner is advised that a negative opinion cannot be based solely on the fact that the condition was not noted in the Veteran’s service records. The underlying reasons for the conclusions reached must be included in the opinion. 4. Obtain a medical examination from an appropriately qualified medical professional on the Veteran’s ischemic heart disease (IHD). After a review of the pertinent records, the clinician should answer the following question: Is it at least as likely as not that the Veteran’s IHD is etiologically related to service, to include as due to exposure to a) asbestos; b) fumes, dust, and steam associated with Navy ships; or c) tick or mosquito bites? The examiner is advised that a negative opinion cannot be based solely on the fact that the condition was not noted in the Veteran’s service records. The underlying reasons for the conclusions reached must be included in the opinion. 5. Obtain a medical examination from an appropriately qualified medical professional on the Veteran’s gastroesophageal reflux disease (GERD). After a review of the pertinent records, the clinician should answer the following question: Is it at least as likely as not that the Veteran’s GERD is etiologically related to service, to include as due to exposure to a) asbestos; b) fumes, dust, and steam associated with Navy ships; or c) tick or mosquito bites? The examiner is advised that a negative opinion cannot be based solely on the fact that the condition was not noted in the Veteran’s service records. The underlying reasons for the conclusions reached must be included in the opinion. 6. Obtain a medical examination from an appropriately qualified medical professional on the Veteran’s recurrent glottic squamous cell carcinoma. After a review of the pertinent records, the clinician should answer the following question: Is it at least as likely as not that the Veteran’s recurrent glottic squamous cell carcinoma is etiologically related to service, to include as due to exposure to contaminants in the water during service at Camp Lejeune? The clinician should address the impact of consuming the water and the impact it has on the Veteran’s throat (where the vocal chords are located). The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed condition is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. The underlying reasons for the conclusions reached must be included in the opinion. The examiners are reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.