Citation Nr: 22017017 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-12 928 DATE: March 23, 2022 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for gynecomastia. Entitlement to service connection for ectopic atrial rhythm is granted. Entitlement to service connection for gynecomastia is granted. Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for iliotibial band syndrome (ITBS) of the left knee is remanded. Entitlement to service connection for ITBS of the right knee is remanded. FINDINGS OF FACT 1. In April 2009, the VA denied entitlement to service connection for gynecomastia; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. New evidence received since the April 2009 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for the claimed gynecomastia. 3. The Veteran's ectopic atrial rhythm began during active service. 4. The Veteran's gynecomastia disability began during active service. 5. The Veteran's headaches began during active service. CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied entitlement to service connection for gynecomastia is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for ectopic atrial rhythm are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303(a). 3. The criteria for service connection for gynecomastia are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2003 to November 2008, including in Iraq. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in July 2021; a transcript has been associated with the record. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. 1. New and material evidence has been received to reopen a claim of entitlement to service connection for gynecomastia. In an April 2009 rating decision, VA denied entitlement to service connection for gynecomastia. The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In March 2015, the Veteran requested to reopen his claim for gynecomastia. In an April 2015 rating decision, VA determined that new and material evidence had not been received to reopen a claim of service connection for gynecomastia. However, the Veteran submitted new and material evidence within the one-year appeal period following the April 2015 denial and in a February 2016 rating decision, VA confirmed and continued the previous denial. See 3.156(b). The Veteran disagreed with the decision and perfected this appeal. Considering the procedural history, the Board finds the April 2009 rating to be the last final decision. Relevant evidence added to the record since the final April 2009 rating decision includes a January 2019 correspondence from the Veteran and the July 2021 hearing transcript. This evidence is new as it was not previously considered. During the July 2021 hearing the Veteran asserted that his gynecomastia condition began in service and that he has experienced recurrent symptoms since that time. He also asserted that he had surgery to remove the additional breast tissue in 2015 and has symptoms to include painful scars and a loss of sensation in both nipples. These new assertions are material in that they relate to an unestablished fact and raise a reasonable possibility of substantiating the service connection claim. The Board thus reopens the Veteran's claim of entitlement to service connection for a gynecomastia for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted when "the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service." 38 C.F.R. § 3.303(a). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). As the Board is granting this claim on direct service connection, it is not necessary to address other theories of service connection herein. Service connection is established on a direct basis when there is competent, credible, evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease of injury. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d 1372. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to service connection for atrial fibrillation and atrial flutters. The Veteran was diagnosed with premature atrial contractions in October 2004 while in service. The Veteran was then diagnosed with atrial fibrillation and atrial flutters in a September 2017 private treatment record. This is sufficient to establish a current disability, satisfying the first element of service connection. The Veteran asserts that his irregular heartbeat began in service and has continued to the present time. The Veteran's entrance examination from June 2004 indicated he did not have any current heart issues, nor did he report a history of heart conditions. The Veteran has consistently reported and testified that his heart condition began in service. The Veteran's service treatment records show the Veteran was diagnosed with an abnormal heart rate during an emergency room visit while in service in June 2004. The Veteran asserts, and the record reflects, that he was never given a separation examination prior to his release from active-duty service. However, the Veteran has consistently reported that his heart condition began in October 2004. See 10/27/2015 fully developed claim. In a January 2019 correspondence from the Veteran, he again asserted that in 2004, he was hospitalized and diagnosed with a heart condition. He also asserts that an EKG was taken in April 2004 which showed "premature ventricular irregularities." This assertion is supported by the Veteran's service treatment records. He further asserts that he had, "suffered multiple episodes since then" and was diagnosed with ventricular irregularities again in 2017. He was admitted to the emergency room in September 2017 due to an "episode" and asserts his condition is "chronic." During the July 2021 hearing, the Veteran continued to assert that his in service diagnosis of a heart condition incurred coincident with his active-duty service. He again asserted that his heart condition was first diagnosed during an emergency room visit in service and has continued to the present time. The Veteran also submitted private medical treatment records from his September 2017 emergency room visit. Here, as stated above, the Veteran was diagnosed with atrial fibrillation and atrial flutter. The Veteran reported a "very fast, irregular heartbeat" with his "heartbeat frequently alternat[ing] between racing and slow." The Veteran stated that the first instance of "AFib" he experienced was during an episode of meningitis in 2004. He denied having palpitations, "AP symptoms," or dyspnea. The Veteran's service treatment records show a diagnosis of a heart condition while in service and he is competent to report his symptoms capable of lay observation. As a result, the Veteran is competent to report a history of an irregular heartbeat, such as a racing heart, that began in service. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno, 6 Vet. App. 465. Furthermore, in its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of a heart condition symptoms. His account is internally consistent and consistent with medical evidence. Specifically, the Veteran sought treatment for an abnormal heart rate in September 2017 and was diagnosed with atrial fibrillation and atrial flutters. At the September 2017 emergency room visit the Veteran reported the first instance of a heart condition in 2004 with multiple episodes since that time. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, the Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his heart condition began during his military service and have continued to the present time. As there is no evidence of record to the contrary, the only probative evidence regarding the onset of the Veteran's heart condition is the competent and credible lay evidence provided by the Veteran. The Board thus finds that the Veteran's competent and credible lay evidence is sufficient to establish that his heart condition began in service. As the facts, shown by evidence, establish that the Veteran's heart condition was incurred coincident with service, service connection is warranted. 38 C.F.R. § 3.303(a). The claim is granted. 3. Entitlement to service connection for gynecomastia. The Veteran asserts that his gynecomastia began in service while deployed in Iraq and has continued to the present time. The Veteran asserts he received surgery to correct the issue in May 2015 but continues to have issues regarding painful scars and a loss of sensation in his nipples. The Veteran was first diagnosed with gynecomastia during a March 2009 VA examination, only 4 months after his separation from active-duty service. The Veteran underwent surgery for gynecomastia in May 2015 in which his pre-operative and post-operative diagnosis was gynecomastia. As the Veteran was diagnosed with gynecomastia relative to the period on appeal and continues to suffer from symptoms of the condition, the first element of service connection, a current disability, has been met. Additionally, the Veteran's military personal records show he served in Iraq from June 2005 to May 2006. The Veteran's June 2004 entrance examination does not note any issues regarding the Veteran's chest nor gynecomastia. The Veteran was not offered a separation examination upon his discharge from active-duty service. The Veteran's service treatment records do not indicate treatment for gynecomastia while in service. However, the Veteran has consistently reported that his gynecomastia began in service with recurrent symptoms since that time. The Veteran underwent a VA examination in connection with his original claim for entitlement to service connection for gynecomastia in March 2009. The Veteran reported the onset of his condition in 2005 while on active-duty service. The Veteran reported symptoms of "disfigurement." The examiner noted "redundant underlying breast tissues." No nexus opinion was provided by the VA examiner. The Veteran's private medical records from May 2015 show the Veteran underwent surgery for gynecomastia. In the operative report the provider indicated gynecomastia as the pre-operative and post-operative diagnosis. The total removal was 600 CCs of extra breast tissue. In the Veteran's May 2016 notice of disagreement, he again asserts that his condition began while stationed in Iraq. While there he, "noticed the breast started enlarging but went undiagnosed until [his] [2009] VA exam" and indicated he had surgery on May 5, 2015. In a January 2019 correspondence, the Veteran again asserted that his condition began in service in 2005. He stated the condition began in 2005 and "was continuous until surgical removal" in 2015. He stated that he, "was embarrassed of [his] condition which is why [he] was reluctant to come forward" and simply hoped the issue would resolve on its own. The Veteran reported this condition was never evaluated as he was not provided a separation examination at the time of his discharge. Finally, during the July 2021 hearing the Veteran stated his condition began in service and developed over the year long period he was deployed. He also asserts gynecomastia was not diagnosed until four months after his separation. The Veteran believes that had he been afforded a separation examination at the time of his discharge, his condition would have been diagnosed then. He also asserts he was "embarrassed" by this condition and attempted to hide his chest from others so his condition would not show. The Veteran further asserted that his 2015 surgeon indicated the Veteran's exposure to burn pits and additional carcinogens could have resulted in his gynecomastia. He asserted that since the surgery he continues to have issues regarding his chest to include two painful scars and a loss of sensation in both nipples. While the Veteran's service treatment records are negative for complaints of gynecomastia, he is competent to report his symptoms capable of lay observation. As a result, the Veteran is competent to report a history of gynecomastia that began in service. 38 C.F.R. § 3.159(a)(2); Washington, 19 Vet. App. 362; Layno, 6 Vet. App. 465. Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render it inherently uncredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of gynecomastia. His account is internally consistent and consistent with other evidence of record. Specifically, the Veteran filed a claim and sought treatment for gynecomastia in March 2009, only 4 months after his separation from service, where he was then diagnosed with gynecomastia. At the March 2009 VA examination and the May 2015 surgical appointment, he reported he has had symptoms of gynecomastia since his 2005 deployment to Iraq. See Rucker, 10 Vet. App. 67 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, the Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his gynecomastia symptoms began during his military service and have continued to the present time. As stated above, the Veteran underwent a VA examination in March 2009 for gynecomastia. However, the examiner did not provide a statement indicating if the Veteran's gynecomastia was related to his active-duty service. As there is no additional evidence to the contrary, the only probative evidence regarding the onset of gynecomastia is the competent and credible lay evidence provided by the Veteran. The Board thus finds that the Veteran's competent and credible lay evidence is sufficient to establish gynecomastia began in service. As the facts, shown by evidence, establish that gynecomastia was incurred coincident with service, service connection is warranted. 38 C.F.R. § 3.303(a). The claim is granted. 4. Entitlement to service connection for residuals of meningitis, to include headaches. The Veteran asserts that the residuals of his in-service diagnosis of meningitis incurred coincident with service and he has had recurrent symptoms since that time. The Veteran was first diagnosed with meningitis in service in October 2004. The Veteran was taken to the emergency room for complaints of severe headaches and stomach issues when he was diagnosed with meningitis. The provider was uncertain if the meningitis was viral or bacterial but still ordered the Veteran to isolate. In August 2021 the Veteran was admitted to the emergency room again complaining of severe headaches. The provider here diagnosed the Veteran with "recurrence of meningitis" with symptoms including a 1-to-2-day headache. He did not have a current diagnosis of meningitis at that time. This is sufficient to establish a current disability, satisfying the first element of service connection. The Veteran's June 2004 entrance examination does not indicate any prior history of meningitis nor headaches. However, after the Veteran's initial meningitis diagnosis in service in October 2004, the Veteran continued to report headaches in February 2005. Additionally, in the Veteran's May 2016 notice of disagreement, he again asserts that he was diagnosed and treated for meningitis while in service. In his January 2019 correspondence the Veteran stated he has had recurrent symptoms from his meningitis condition since service. He continues to experience headaches requiring both prescribed and over the counter medication to control. He also has to wear sunglasses in daylight and "computer glasses to reduce the onset of headaches caused by residuals of meningitis." During the July 2021 hearing the Veteran clarified that he did not have an active diagnosis of meningitis but rather was claiming the residuals of his in-service diagnosis to include headaches. He again asserts that the residuals began at the time of his original diagnosis in 2004 when he was taken to the hospital for a severe headache and stomach issues. His headaches began in 2004 and he asserts the same severity of headaches he experienced in service have persisted to the present time. The Veteran's service treatment records show a diagnosis of meningitis in service with symptoms including severe headaches. The Veteran is competent to report his symptoms capable of lay observation. As a result, the Veteran is competent to report the onset of his headaches beginning at the time of his in-service meningitis diagnosis and their continued history since then. 38 C.F.R. § 3.159 (a)(2); Washington, 19 Vet. App. 362; Layno, 6 Vet. App. 465. Furthermore, in its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of the residuals of meningitis to include headaches. His account is internally consistent and consistent with medical evidence. No VA examination was provided for this issue. As there is no evidence to the contrary, the only probative evidence regarding the onset of the residuals of meningitis to include headaches is the competent and credible lay evidence provided by the Veteran. The Board thus finds that the Veteran's competent and credible lay evidence is sufficient to establish that headaches began in service. As the facts, shown by evidence, establish that headaches were incurred coincident with service, service connection is warranted. 38 C.F.R. § 3.303(a). The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for ITBS of the left knee. 2. Entitlement to service connection for ITBS of the right knee. The Veteran asserts that his left and right knee conditions began in service and have continued to the present time. The Veteran asserts that due to the significant amount of running required, he was diagnosed with ITBS while in service and has had recurrent symptoms of instability and pain since that time. No VA examination has been provided for this claim. The Board finds that the duty to assist is triggered and a VA examination is needed for this claim. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (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) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). In May 2015, the Veteran was seen for a follow up appointment for his ITBS. The examiner indicated, "resolved IT band syndrome" due to the Veteran's extensive reduction in physical activities but still noted the Veteran has some laxity in both knees. This is competent evidence of persistent or recurrent symptoms of a current left and right knee disability. The Veteran was first diagnosed with ITBS in service in January 2004. The Veteran reported range of motion with pain on movement and on palpitation. The Veteran reported his left knee giving way in February 2004. As stated above, the Veteran's record shows he was diagnosed with and treated for ITBS in service. This is evidence of injury or disease in service. The Veteran asserts his current knee condition began in service as a result of extensive running and his January 2004 ITBS diagnosis. Additionally, the Veteran reported issues with his knees giving way in service and additional issues with laxity in 2015. The May 2015 examiner indicated that ITBS was resolved but only due to reduction in activity, suggesting that the condition would flare up again if normal activity resumed. As there is evidence of a current disability, an in-service diagnosis, and an indication that the current disability may be associated with the in-service diagnosis, remand for a VA examination is required as there is insufficient medical evidence of record to make a decision on the claim. McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left and right knee ITBS. The examiner must review the entire claims file. Because the Veteran resides outside the U.S., this examination should be completed via telehealth if possible. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. a) Is the Veteran's current left and right knee condition related to extensive running in service and/or his in-service diagnosis of ITBS? Why or why not? (Continued on the next page) Provide a thorough rationale to support the opinion. Please address the Veteran's lay reports of recurrent symptoms of instability and pain since the diagnosis of ITBS in service. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.