Citation Nr: 21029203 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 20-27 242 DATE: May 12, 2021 ORDER New and material evidence having been received, the request to reopen a claim for service connection for a nasal condition is granted. REMANDED Service connection for a nasal condition is remanded. Service connection for a heart condition is remanded. Service connection for a left hip condition is remanded. Service connection for cysts on both kidneys is remanded. FINDING OF FACT The additional evidence received since an August 2012 final decisions raises a reasonable possibility of substantiating the previously denied claim for service connection for a nasal condition and it is reopened. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a nasal condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to September 1968. The Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing in April 2021; a copy of the transcript is of record. At the outset, the Board notes that the Veteran originally filed his claim for service connection for residuals of a broken nose and a claim for ischemic heart disease. However, pursuant to the Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has re-characterized the issue on appeal as entitlement to service connection for a nasal condition and a heart condition. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. New and Material Evidence To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156 (a). To warrant reopening, the new evidence must 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Nasal Condition In an August 2012 rating decision service connection was denied for a broken nose. The decision became final when the Veteran did not appeal. The Board notes that its task is to first decide whether new material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. Pertinent evidence added to the record since the final August 2012 rating decision includes medical records, statements, and the Veteran's April 2021 hearing testimony. Thus, based on this newly added evidence, the Board finds that new and material evidence has been added to the record which relates to previously unestablished elements of the claim and the claim for service connection for a nasal condition is reopened. REASONS FOR REMAND Nasal Condition The Veteran underwent a VA examination in November 2019, prior to his April 2021 hearing testimony. In his hearing, the Veteran and his wife testified that the Veteran began having nasal symptoms and underwent a nasal surgery within close proximity to his separation from service. This medical history was not considered in the Veteran's VA examination; as such, the examination is inadequate for adjudication purposes. Heart Condition A VA examination in October 2018 did not provide an opinion as to the etiology of any diagnosed heart condition. As such, the examination is inadequate, and a new examination is warranted. Left Hip Condition Cysts on Kidneys Upon review of the record, the Board notes that no examinations of the claimed conditions have been afforded to the Veteran; remand is necessary as the low threshold for obtaining such an examination and medical opinion has been surpassed in this case. See 38U.S.C. §5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical treatment records for his claimed conditions. After securing the proper authorizations where necessary, arrange to obtain any and all records of treatment or examination from all the sources listed by the Veteran that are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making two efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After completion of directive 1, and after any outstanding records have been associated with the Veteran's file, schedule the Veteran for an examination by a physician (M.D.) to determine the nature and etiology of his nasal condition, heart condition, and left hip condition. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed nasal condition, heart condition, and left hip condition were incurred in, or due to, the Veteran's service. Specifically, as to the Veteran's heart condition, the examiner should opine if the condition is due to the Veteran's conceded exposure to herbicides while in-service. The Veteran's lay statements regarding onset and continuity of symptomology, specifically the April 2021 hearing testimony, should be recorded and considered. A rationale for all opinions must be provided. 3. After completion of directive 1, and after any outstanding records have been associated with the Veteran's file, schedule the Veteran for an examination by a nephrologist or a urologist (M.D.) to determine the nature and etiology of his diagnosed kidney condition. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed kidney condition was incurred in, or due to, the Veteran's service, to include the Veteran's conceded exposure to herbicides while in-service. The Veteran's lay statements regarding onset and continuity of symptomology, specifically the April 2021 hearing testimony, should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.