Citation Nr: 22015202 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 20-11 456 DATE: March 16, 2022 ISSUES 1. Whether new material evidence has been received to reopen a previously denied claim of entitlement to service connection for a low back disability. 2. Whether new material evidence has been received to reopen a previously denied claim of entitlement to service connection for type II diabetes mellitus due to herbicide exposure. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for type II diabetes mellitus due to herbicide exposure. 5. Entitlement to an initial disability rating in excess of 20 percent for lymphedema, right lower extremity. 6. Entitlement to an initial compensable disability rating for the scar, status post laceration, lower right leg. 7. Entitlement to an initial disability rating in excess of 30 percent for other specified trauma disorder. 8. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). ORDER New and material evidence has been received sufficient to reopen the previously denied claims for service connection for a low back disability and type II diabetes mellitus due to herbicide exposure, and the appeals are granted to this extent only. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for type II diabetes mellitus due to herbicide exposure is remanded. Entitlement to an initial disability rating in excess of 20 percent for lymphedema, right lower extremity is remanded. Entitlement to an initial compensable disability rating for the scar, status post laceration, lower right leg is remanded. Entitlement to an initial disability rating in excess of 30 percent for other specified trauma disorder is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. The claim for service connection for a lower back condition was denied in a November 2005 rating decision that was not appealed. 2. Evidence received since the November 2005 rating decision for the claim of service connection for a back disability includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. 3. The claim for service connection for type II diabetes mellitus due to herbicide exposure was denied in a March 2005 rating decision that was not appealed. 4. Evidence received since the March 2005 rating decision for the claim of service connection for type II diabetes mellitus due to herbicide exposure includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied and final claims of service connection for a back disability and type II diabetes mellitus due to herbicide exposure. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1966 to February 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Claim Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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 received 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). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Low Back Historically, the claim for service connection for a low back disability was denied in a November 2005 rating decision that was not appealed. This determination was based upon a finding that the evidence did not show he suffered a back injury or had a back problem while on active duty, and there was no evidence showing his back condition was incurred in or aggravated by military service. The evidence received in pertinent part since the November 2005 rating decision includes the Veteran's assertions that his back problems are related to a motor vehicle accident that happened in service, and a November 2017 VA examination, that will be addressed below. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for a low back disability is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Type II Diabetes Mellitus due to Herbicide Exposure Historically, the claim for service connection for type II diabetes mellitus due to herbicide exposure was denied in a March 2005 rating decision that was not appealed. This determination was based upon a finding that the evidence did not show that the disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection, and there was no evidence of exposure to herbicides during military service. The evidence received in pertinent part since the March 2005 rating decision includes the Veteran's assertions in October 2020 that he flew top secret aerial photography missions over the country of Vietnam, to include missions in UH-1 "Huey" aircrafts. He stated that once a month his missions were long enough to require refueling operations inside Vietnam at a secure base. When the aircraft landed, the Veteran would use the bathroom facilities or just get out to stretch. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for type II diabetes mellitus due to herbicide exposure is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board finds that additional evidentiary development is required before adjudication of the remaining issues on appeal. In regards to the claim for a low back disability, the Veteran was afforded a VA examination in November 2017 in which the examiner stated that there was no indication of back pain directly related to a motor vehicle accident (MVA). The examiner stated that service treatment record review mentioned back pain in June 1968 that was due to back aches from an illness, not injury. The separation examination noted no back pain. The examiner stated that there was no indication of back issues until the early 2000's, and there was no evidence to support ongoing back pain in service or directly afterwards. However, as noted by the Veteran's attorney, the Veteran sought treatment for his back in the 1980's as evidence by private treatment records associated with the electronic claims file, and not "until the early 2000's" as noted by the November 2017 examiner. As such, the Board finds that an addendum opinion should be sought on remand. In regards to the claim for service connection for type II diabetes mellitus due to herbicide exposure, as noted above, the Veteran's stated in October 2020 that he flew top secret aerial photography missions over the country of Vietnam, to include missions in UH-1 "Huey" aircrafts. He stated that once a month his missions were long enough to require refueling operations inside Vietnam at a secure base. When the aircraft landed, the Veteran would use the bathroom facilities or just get out to stretch. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was photo specialist, and he received the Vietnam Service Medal. The RO previously contacted the Air Force Historical Research Agency (USAFHRA) in an attempt to verify the Veteran's exposure to herbicides. However, in light of the new information provided by the Veteran, the Board finds that a new inquiry should be conducted on remand. The Veteran was last afforded VA examinations for his other specified trauma disorder in 2017; lymphedema right lower extremity in 2018; and scar, status post laceration, lower right leg in 2018. Subsequently, the Veteran asserted in August 2018 that his scar was painful, hurt more often than not, and had stabbing/tingling pain; the lymphedema caused swelling in the ankle, leg, and foot, and he experienced instability and falling; and the other specified trauma disorder caused an inability to do a lot of things he used to love doing due to paranoia of loud noises and crowds. As such, the Board finds that remand is warranted to assess the current severity of these service-connected disabilities. Concerning the claim for a TDIU listed on the cover page, a TDIU is part of an increased disability rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran stated in August 2018 that he could not work to include as due to the swelling and pain around his scar and ankle, and that he required isolation from others in order to work. The critical question is whether the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. The Board finds that, on remand, the VA examiner(s) should provide all information required for rating purposes for the service-connected other specified trauma disorder; lymphedema right lower extremity; and scar, status post laceration, lower right leg, to include a discussion of the functional and occupational impact of the disabilities. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § § 3.159 (e). 2. Send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with instructions to return the form. 3. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include requesting, with the Veteran's assistance, all records from his previous employers, including any medical records and/or administrative decisions pertaining to disability benefits. All actions to obtain the requested records should be fully documented in the electronic claims file. If they cannot be located or no such records exist, the Veteran and his attorney should be so notified in writing. 4. Undertake all appropriate effort to attempt to verify the Veteran's asserted exposure to herbicides. Specifically, contact the USAFHRA; and /or any other appropriate source to ascertain whether the Veteran would have been exposed to herbicides due to his assertions that he flew top secret aerial photography missions over the country of Vietnam, to include missions in UH-1 "Huey" aircrafts that required refueling operations inside Vietnam at a secure base in which the Veteran would use the bathroom facilities or just get out to stretch. All actions to obtain the requested information should be fully documented in the electronic claims file. If the information cannot be located or no such documentation exist, the Veteran and his attorney should be so notified in writing. 5. If, and only if, the Veteran's exposure to herbicides is conceded, afford him a VA examination to determine the nature and etiology of his claimed type II diabetes mellitus. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The examiner should opine whether it is at least as likely as not that any type II diabetes mellitus diagnosed during the pendency of this claim had onset in service or is otherwise related to service, to include as related to any conceded herbicide exposure. A full and complete rationale for all opinions expressed must be provided. 6. Provide the Veteran's claims file to the November 2017 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran's claimed low back disability. An examination is only required if deemed necessary by the examiner. The examiner should opine whether it is at least as likely as not that any low back disability diagnosed during the pendency of this claim had their onset in service or are otherwise related to service, to include the noted MVA and complaint of back pain in June 1968. The examiner is reminded that private treatment records in the 1980's show that the Veteran complained of back problems. A full and complete rationale for all opinions expressed must be provided. 7. Arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected lymphedema, right lower extremity. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The RO should ensure that the examiner provides all information required for rating purposes. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's disability, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. The examiner must include a discussion of the functional and occupational impact of the disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 8. Arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected scar, status post laceration, lower right leg. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The RO should ensure that the examiner provides all information required for rating purposes. The examiner must include a discussion of the functional and occupational impact of the disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 9. Arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected other specified trauma disorder. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The RO should ensure that the examiner provides all information required for rating purposes. The examiner must include a discussion of the functional and occupational impact of the disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 10. Review the record to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.