Citation Nr: 21028771 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-29 437 DATE: May 12, 2021 ORDER Application to reopen a claim for entitlement to service connection for an aneurysm is granted. Entitlement to service connection for an aneurysm is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for emphysema, to include lung cancer is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for a heart disability (claimed as arterial blockage) is denied. Entitlement to service connection for prostate cancer is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. FINDINGS OF FACT 1. A July 2010 rating decision denied the Veteran's application to reopen the claim of service connection for an aneurysm, he did not appeal that decision, he did not thereafter submit new and material evidence within the one-year appeal period, and VA did not subsequently obtain and associate with the claim's file VA treatment records generated within the one-year appeal period. 2. Evidence received since the July 2010 rating decision is new, it is related to an unestablished fact necessary to substantiate the claim of service connection for a back disability, and it raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against finding that an aneurysm, emphysema, a heart disability, prostate cancer, back disability, bilateral knee disability, and bilateral lower extremity peripheral neuropathy began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The July 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for an aneurysm is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for an aneurysm, emphysema, a heart disability, prostate cancer, back disability, bilateral lower extremity peripheral neuropathy, and a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1971 to November 1975. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Application to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened, and the former disposition reviewed. 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). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156 (a) created a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156 (b) if they are new and material evidence. In Lang v. Wilkie, 971 F.3d 1348 (2020) the United States Court of Appeals for the Federal Circuit overruled, in pertinent part, Turner v. Shulkin, 29 Vet. App. 207 (2018), by holding that a VA adjudicator does not need actual knowledge of VA-generated medical records created within one year following a VA decision to establish constructive receipt for the purposes of applying 38 C.F.R. § 3.156 (b) because VA has constructive knowledge of these records. With the above criteria in mind, the record shows that a July 2010 rating decision denied the Veteran's application to reopen his claim for service connection for an aneurysm. The decision denied his claim because, in substance, there was no evidence linking his aneurysm disability to service. The Veteran did not appeal the July 2010 rating decision. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of the July 2010 rating decision. See 38 C.F.R. § 3.156 (b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the July 2010 rating decision that were new and material evidence. See Lang, supra; Turner, supra. Accordingly, the Board finds that the July 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final July 2010 rating decision, the Veteran and/or his representative has filed with VA statements in support of the claim and arguments which for the first time provided evidence that a current aneurysm could be due to the appellant's military service. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Therefore, because a link to service is a condition precedent for establish service connection (see 38 C.F.R. § 3.303 ) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that these statements and arguments are new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. Service Connection 1. Entitlement to service connection for an aneurysm, 2. Entitlement to service connection for emphysema, to include lung cancer 3. Entitlement to service connection for a heart disability 4. Entitlement to service connection for prostate cancer The Veteran is seeking service connection for an aneurysm, emphysema, heart disability, and prostate cancer, but notably has not provided an explanation on why he believes service connection is warranted. The competent evidence of record confirms that the Veteran has been diagnosed with an aneurysm, prostate cancer, a heart disability, and lung cancer. Therefore, the remaining question before the Board is whether an aneurysm, prostate cancer, a heart disability, and lung cancer are etiologically related to the Veteran's military service. The service treatment records contain no complaints, history, or findings consistent with an aneurysm, prostate cancer, a heart disability, or lung problems. On separation from service in November 1975, the Veteran denied a history of any aneurysms, prostate problems, heart problems, or lung problems. At this point, it is the Veteran himself that provides evidence against these claims. Likewise, the post-service record is negative for any complaints, diagnoses, or treatment of an aneurysm, prostate cancer, a heart disability, or lung problems until 18, 19, 34, and 42 years after the Veteran's discharge from service. A review of treatment records fails to indicate any association between these problem and service in the 1970's. The Board finds there is not competent medical evidence that relates aneurysm, prostate cancer, a heart disability, or lung problems to the Veteran's active duty service. The AOJ did not arrange for an examination or seek a medical opinion in relation to this claim, but absent any competent medical evidence suggesting that aneurysm, prostate cancer, a heart disability, or lung problems might be related to his service, an examination to secure a medical nexus opinion is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has considered the Veteran's general assertion that his aneurysm, prostate cancer, a heart disability, or lung problems is related to his service. However, because he is a layperson, he is not competent to opine on the etiology of his aneurysm, prostate cancer, a heart disability, or lung problems, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). In the absence of competent evidence linking the Veteran's aneurysm, prostate cancer, a heart disability, or lung problems to service, a preponderance of the evidence is against the claim. Accordingly, service connection for aneurysm, prostate cancer, a heart disability, or lung problems must be denied. 5. Entitlement to service connection for a back disability 6. Entitlement to service connection for peripheral neuropathy of the right lower extremity 7. Entitlement to service connection for peripheral neuropathy of the left lower extremity 8. Entitlement to service connection for a left knee disability 9. Entitlement to service connection for a right knee disability The Veteran contends his back, bilateral knee, and bilateral lower extremity peripheral neuropathy diagnoses began in service or are due to service. Initially, the record reflects the Veteran has current diagnoses of bilateral peripheral neuropathy of the lower extremities, degenerative joint disease bilaterally in the knees, lumbosacral strain, degenerative arthritis of the spine, and spondylolisthesis. See February 2018 VA Examinations. The Boards also finds that the Veteran is competent to report on the events he experienced while on active duty like manifestations of his disabilities, such as (for example) pain and numbness. See Davidson, supra. Service treatment records (STRs) show the Veteran was diagnosed with a mild lumbar strain in January 1972 and May 1975. Further, a January 1972 STR notes the Veteran complaining of numbness in his feet. It was also noted that the Veteran experienced bilateral knee pain and was diagnosed with a knee strain in November 1972. However, the Veteran reported normal back, knee, feet, and lower extremities in his separation examination, again providing evidence against his own claims. VA treatment records indicate the Veteran did not receive diagnoses of bilateral lower extremity peripheral neuropathy and his back conditions until February 2018, which is 43 years post-service. The Veteran was not diagnosed with a bilateral knee disability until August 2016, 41 years post-service. The record does not show any of these disabilities manifesting in the first year following his separation from his period of active duty service. Therefore, the Board finds that these presumptions do not help the Veteran establish service connection for them. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the Veteran is entitled to service connection for a back disability, bilateral knee disability, and bilateral lower extremity peripheral neuropathy due to continuity of symptomatology under 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (b). In this regard, the post-service record is negative for complaints, diagnoses, or treatment for back problems, bilateral knee disabilities, and lower extremity peripheral neuropathy until 2016 and 2018; over four decades after the Veteran's 1975 separation from active duty. Id. While the Board is certain that the Veteran believes that his back disability, bilateral knee disabilities, and bilateral lower extremity peripheral neuropathy are due to service (i.e., over 40 years ago) and continued to the current time, the Board nonetheless finds such claims incredulous given the fact that his problems with the these disorders do not appear in the record until, at the earliest, at least four decades after his 1975 separation from active duty. Therefore, the Board finds that Veteran's statements and recollections of events from so many years ago are simply not accurate based on the evidence. As noted above, at one point the Veteran denied having these problems at all. The fact that the Veteran has filed so many claims that are not indicated until many years after the Veteran's discharge from service, without any indication in the treatment records of problems that have existed since the 1970's, suggest that the Veteran's overall recollection of his problems than have been ongoing for nearly 50 years may not be accurate. At this point, the Board finds that the post-active duty medical records provide the most probative evidence of record and it is against finding continuity of symptomatology. See Owens, supra. The Veteran also underwent VA examinations for these conditions and the VA examiner offered negative nexus opinions finding it was less likely than not that they were due to service. Post-service treatment records only support this finding, indicating problems that began decades after service with no connection to service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a back disability, bilateral knee disabilities, and bilateral lower extremity peripheral neuropathy. 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity The Veteran underwent a VA examination in February 2018. The VA examiner diagnosed peripheral neuropathy; however, he did not offer an etiology opinion as to the left and right upper extremities. If the VA decides that a medical opinion is warranted, as in these issues, the Board must ensure that they answer the key question in this case: If the problem is related to service. Therefore, the Board finds a remand for an addendum opinion to obtain an etiology opinion is warranted. The appeal is REMANDED for the following actions: 1. Return the Veteran's file to the examiner who offered the February 2018 opinion (if available) regarding the etiology of the Veteran's peripheral neuropathy. The record, to include a copy of this Remand, must be made available and reviewed by the examiner. The examiner should provide an addendum opinion to clarify and opine on the following: Whether the Veteran's peripheral neuropathy of the left and right upper extremities is at least as likely as not due to an in-service event, injury, or illness. 2. If the February 2018 examiner is unavailable, the Veteran's file should be made available to an appropriate VA examiner who can offer an addendum opinion regarding the etiology of the Veteran's peripheral neuropathy of the upper extremities. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner and the examiner should offer an opinion as to the above, to the extent possible without a new examination. (Continued on the next page) 3. After undertaking any other appropriate development deemed necessary, readjudicate the issue on appeal based on the additional evidence of record. If the determination remains adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, Associate 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.