Citation Nr: 21028646 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-23 774 DATE: May 11, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for an ischemic heart disease (IHD) is granted. New and material evidence having been received, the petition to reopen the claim of service connection for hypertension is granted. New and material evidence having been received, the petition to reopen the claim of service connection for stroke with memory loss is granted. New and material evidence having been received, the petition to reopen the claim of service connection for peripheral neuropathy of the left upper extremity is granted. New and material evidence having been received, the petition to reopen the claim of service connection for peripheral neuropathy of the left lower extremity is granted. Service connection for non-ischemic cardiomyopathy and non-obstructive coronary artery disease (CAD) is granted. Service connection for diabetes mellitus type II (DM II) is granted. REMANDED The issue of service connection for hypertension is remanded. The issue of service connection for stroke with memory loss is remanded. The issue of service connection for peripheral neuropathy of the left upper extremity is remanded. The issue of service connection for peripheral neuropathy of the right upper extremity is remanded. The issue of service connection for peripheral neuropathy of the left lower extremity is remanded. The issue of service connection for peripheral neuropathy of the right lower extremity is remanded. The issue of service connection for a prostate disability is remanded. The issue of service connection for erectile dysfunction (ED) is remanded. FINDINGS OF FACT 1. In a March 2012 rating decision, a VA regional office (RO) denied service connection for IHD, hypertension, stroke, and peripheral neuropathy of the left lower and upper extremities. Although notified of the denial in a March 2012 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year. 2. Evidence associated with the file since March 2012, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for IHD, hypertension, stroke, and peripheral neuropathy of the left lower and upper extremities. 3. The Veteran's CAD is related to in-service exposure to Agent Orange. 4. The Veteran's DM II is related to in-service exposure to Agent Orange. CONCLUSIONS OF LAW 1. The March 2012 rating decision denying service connection for IHD, hypertension, stroke and peripheral neuropathy of the left lower and upper extremities is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103 (2019). 2. As pertinent evidence received since the March 2012 denial is new and material, the criteria for reopening the claims of service connection for IHD, hypertension, stroke and peripheral neuropathy of the left lower and upper extremities are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria to establish service connection for CAD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309 (e). 4. The criteria to establish service connection for DM II have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309 (e) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from August 1968 to April 1970. Effective October 2015, the Veteran's combined service-connected disability rating is 100%. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2015 decision of the Muskogee, Oklahoma, Regional Office (RO). In October 2019, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. New and Material Evidence Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The 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. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting 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 the claim). Whether new and material evidence has been received to reopen the claims of entitlement to service connection for IHD, hypertension, stroke, and peripheral neuropathy of the left lower and upper extremities. The claims of service connection for IHD, hypertension, stroke and peripheral neuropathy of the left lower and upper extremities were denied in an un-appealed January 2012 rating decision. Because new and material evidence has since been submitted, the claims will be reopened. In January 2012, the RO denied the Veteran's claims because the Veteran did not have diagnoses of IHD or peripheral neuropathy and there was no evidence of a in-service event that caused the Veteran's hypertension or stroke. Although notified of this decision by a March 2012 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In February 2015, the Veteran petitioned to reopen his claims of service connection for IHD, hypertension, stroke, and peripheral neuropathy of the left lower and upper extremities. Evidence submitted since the final 2012 rating decision consists of VA treatment records, private treatment records, and statements from the Veteran. The record includes medical findings of a diagnoses of IHD and peripheral neuropathy, the Veteran was exposed to Agent Orange, and the Veteran's statements that his stroke and peripheral neuropathy is due to a heart disability or DM II. Given the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the 2012 denial, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claims for service connection and raises a reasonable possibility of substantiating the claims. Thus, the claims of entitlement to service connection are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service connection for CAD and DM II Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, a veteran who served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). If a veteran was exposed to an herbicide agent during active service, certain diseases, including IHD and DM II, shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). IHD includes acute, subacute, and old myocardial infarction and coronary artery disease (CAD). Id. The RO has confirmed the Veteran served in the Korean DMZ during the relevant period. A March 2020 private treatment record states that the Veteran was diagnosed with non-ischemic cardiomyopathy and non-obstructive CAD. A September 2014 VA treatment record states the Veteran was diagnosed with DM II. As the Veteran has a history of CAD, he has IHD. His IHD and DM II are presumed to have been caused by his presumed exposure to herbicide agents. Therefore, service connection is warranted, and the claims are granted. REASONS FOR REMAND 1. The issue of service connection for hypertension is remanded. 2. The issue of service connection for stroke with memory loss is remanded. 3. The issue of service connection for peripheral neuropathy of the bilateral upper extremities is remanded. 4. The issue of service connection for peripheral neuropathy of the bilateral lower extremities is remanded. 5. The issue of service connection for a prostate disability is remanded. 6. The issue of service connection for ED is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran has not been afforded VA examination with respect to his claims of service connection for hypertension, stroke, a prostate disability, and ED. The Veteran has been diagnosed with hypertension, stroke, benign prostatic hypertrophy, and ED. In this decision, the Veteran has been granted service connection for CAD and DM II. The Board finds remand is required to afford the Veteran VA examination to determine the etiology of the Veteran's claimed disabilities. Regarding his claims for peripheral neuropathy, the Veteran was afforded VA examination in December 2011. The examiner determined the Veteran did not have a diagnosis of peripheral neuropathy. Since the December 2011 examination the Veteran has been diagnosed with peripheral neuropathy. The Veteran asserted this disability was caused by service, CAD, stroke, or DM II. Remand is required to obtain an opinion on the nature and etiology of the Veteran's peripheral neuropathy. The remand directives follow. 2. Schedule the Veteran for VA examinations by appropriate clinicians to determine the etiology of the Veteran's hypertension, stroke, peripheral neuropathy of the bilateral upper and lower extremities, prostate disability, and ED. The electronic file, including a copy of the Remand, must be reviewed by, the VA examiners. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: (a.) Whether the Veteran's hypertension, stroke, peripheral neuropathy of the bilateral upper and lower extremities, prostate disability and ED were caused or worsened by his military service, to include the conceded exposure to Agent Orange. (b.) The examiner should also opine whether the Veteran's hypertension, stroke, peripheral neuropathy of the bilateral upper and lower extremities, prostate disability and ED are proximately due to or aggravated (e.g. worsened, and if so, to what degree) by the Veteran's service-connected disabilities? The examiner is advised: He/she must fully explain the opinions. A summary conclusion is not sufficient under the law and the opinion will be returned for further clarification. The examiner must consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner's attention is drawn to the following: *Service treatment records are silent as to any complaints, treatments or diagnoses of hypertension, stroke, peripheral neuropathy of the bilateral upper and lower extremities, prostate disability, and ED. *The Veteran had conceded exposure to Agent Orange during service. *Service connection is currently in effect, per this decision, for CAD and DM II. 3. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.