Citation Nr: 22035239 Decision Date: 06/16/22 Archive Date: 06/16/22 DOCKET NO. 18-49 091 DATE: June 16, 2022 ORDER The claim to reopen the previously denied claim of entitlement to service connection for hypertension is granted. The claim is reopened. The claim to reopen the previously denied claim of entitlement to service connection for a back disorder is granted. The claim is reopened. REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for hypertension, to include as due to military environmental exposure or secondary to service-connected coronary artery disease, is remanded. Entitlement to service connection for squamous cell carcinoma of the left tonsil, to include as due to military environmental exposure, is remanded. Entitlement to service connection for a lung disorder, to include as due to military environmental exposure, is remanded. FINDINGS OF FACT 1. A February 2006 rating decision denied service connection for hypertension, back cramps/spasms, and lumbar degenerative disc disease. The Veteran did not appeal, no new and material evidence was received within one year after the February 2006 decision, and no new and relevant service department records have been added to the claims file since February 2006. 2. New evidence has been received since the February 2006 rating decision that relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for hypertension. 3. New evidence has been received since the February 2006 rating decision that relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for a back disorder. CONCLUSIONS OF LAW 1. The February 2006 rating decision denying service connection for hypertension and a back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for hypertension. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156. 3. New and material evidence has been received to warrant reopening of the claim of service connection for a back disorder. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from December 1966 to February 1969, with service in the Republic of Vietnam during the Vietnam War. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2016 and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2022 and a transcript of the proceeding is of record. The Veteran claimed service connection for chronic obstructive pulmonary disease and a lung condition, and the record reflects both COPD and lung nodule. When a claimant makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has broadly construed the Veteran's claim as reflected on the title page of this document. New and Material Evidence Service Connection In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, service connection for certain chronic diseases, including degenerative arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. The previously denied claim of entitlement to service connection for hypertension is reopened. In a February 2006 rating decision, the RO denied service connection for hypertension because the available evidence did not show that hypertension had onset in service, or that the Veteran's currently diagnosed hypertension was etiologically related to service or any military environmental exposure. The Veteran did not appeal that decision nor submit new and material evidence within one year. VA treatment records constructively of record within one year of the February 2006 rating decision show an ongoing diagnosis of hypertension, but they did not contain any information regarding an in-service onset or a nexus between the current hypertension and the Veteran's period of service. No new and relevant service department were received since the February 2006 decision. The February 2006 rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 2006 decision included the Veteran's claim, VA treatment records, and service treatment records (STRs). Those records indicated the Veteran served in Vietnam and had a current diagnosis of hypertension. Since the 2006 rating decision, service connection has been granted for arteriosclerotic heart disease/coronary artery disease. At the February 2022 hearing, the Veteran asserted that his coronary artery disease caused his hypertension, and the Board notes that 38 C.F.R. § 3.309 recognizes that hypertension is an early symptom preceding the development of more obvious cardiovascular disease. The Board also takes judicial notice of a 2018 National Academy of Sciences (NAS)/Institute of Medicine (IOM), Veterans and Agent Orange report update that now shows hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. New and material evidence has been presented. The evidence, NAS update and hearing testimony are both new, and relate to unestablished facts necessary to establish the claim - evidence of a potential nexus between hypertension and the Veteran's military environmental exposure in Vietnam, and evidence that hypertension may be secondary to a service-connected disability. See 38 C.F.R. § 3.303(a), 3.310; Shedden, 381 F.3d at 1167. The evidence is neither cumulative nor redundant, and it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, the claim is reopened. 2. The previously denied claim of entitlement to service connection for a back disorder is reopened. The February 2006 rating decision denied service connection for back cramps, back spasms, and lumbar spine degenerative disc disease because the available evidence did not show a back condition in service, or a nexus between a current back condition and the Veteran's period of service. The Veteran did not appeal that decision nor submit new and material evidence within one year. VA treatment records constructively of record within one year of the February 2006 rating decision show an ongoing diagnosis of degenerative joint and disc disease of the spine, but they did not contain any information regarding an in-service onset or a nexus between the current back condition and the Veteran's period of service. No new and relevant service department were received since the February 2006 decision. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 2006 decision included the Veteran's claim, VA treatment records, and STRs. Those records show the Veteran denied recurrent back pain on his report of medical history at separation, that in April 2002 he reported intermittent low back pain for the past 30 years, and that he had diagnoses of low back pain, sciatica, and degenerative joint and disc disease of the lumbar spine. Evidence submitted after the February 2006 decision includes September 2016 VA treatment records noting the Veteran's report of low back pain since 1969 that he related to carrying crates in service, and the Veteran's report of a history of chiropractic care in approximately 1969. At the February 2022 hearing, the Veteran testified that he injured his back in service when he fell from a pole, but he did not seek treatment in service because they were in a combat situation and nothing could be done. New and material evidence has been presented. The VA treatment records and hearing testimony are new, and they relate to unestablished facts necessary to establish the claim - evidence that a chronic back condition may have had onset in service or within a year of separation, and evidence of an in-service back injury. See 38 C.F.R. § 3.303(a), 3.307, 3.309; Shedden, 381 F.3d at 1167. The evidence is neither cumulative nor redundant and it is presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, the evidence raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a thoracolumbar spine disorder is remanded. This issue is remanded to obtain a VA examination and opinion. VA's duty to assist includes providing a medical examination and opinion when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran is diagnosed with multilevel degenerative changes of the thoracolumbar spine. See e.g. March 2014 and September 2016 VA imaging studies. The Veteran testified that when he was deployed to Vietnam as a field wireman, he fell off a pole and injured his back. He reported he laid there for 10 minutes before getting up to finish his job. He explained he did not seek treatment because when he finished the job, there were incoming mortar rounds and he had to go to a bunker. He said there was only a medic available so he felt there was nothing that could be done about the back pain, but that he had chronic back pain since that incident. He also reported seeking chiropractic treatment shortly after separation in 1969, which is also consistent with information he gave to his VA treatment providers. The evidence indicates that a currently diagnosed chronic back condition may have had onset in service, within a presumptive period, or may otherwise be etiologically related to an in-service injury. Thus, remand for a medical examination and opinion is necessary. 2. Entitlement to service connection for hypertension, to include as due to military environmental exposure or secondary to service-connected coronary artery disease, is remanded. This issue is remanded for a medical examination and opinion. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. None is of record and the available evidence triggers VA's duty to assist in obtaining one to decide the claim. The record reflects the Veteran is diagnosed with hypertension, he is presumed exposed to herbicides from his deployment to Vietnam, and service-connection is in effect for coronary artery disease. Veterans exposed to herbicide agents are not precluded from establishing service connection with proof that a herbicide agent such as Agent Orange actually caused a disability that is not included on the presumptive list of associated diseases at 38 C.F.R. § 3.309 (e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (d). The NAS update indicates hypertension may be etiologically related to the Veteran's military environmental exposure, and there is also an indication hypertension may be caused or aggravated by coronary artery disease. On remand, VA should obtain medical opinions regarding whether the current hypertension is directly related to service, to include as due to military environmental exposure, or secondary to service-connected coronary artery disease. 3. Entitlement to service connection for squamous cell carcinoma of the left tonsil, to include as due to military environmental exposure, is remanded. This issue is remanded for a VA examination and opinion. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. The record shows the Veteran has a diagnosis of squamous cell carcinoma of the left tonsil and he is presumed exposed to herbicides. At the February 2022 hearing, the Veteran's representative asserted that the Veteran's military environmental exposure predisposed him to developing squamous cell carcinoma of the left tonsil in light of recent medical studies. The evidence is sufficient to trigger VA's duty to obtain a medical examination and opinion. 4. Entitlement to service connection for a lung disorder, to include as due to military environmental exposure, is remanded. This issue is remanded to secure an addendum opinion. The Veteran underwent a VA examination in March 2022. That examiner noted diagnoses of COPD and left lung nodule. The examiner opined that lung cancer was not related to service because lung cancer had not been diagnosed. The examiner did not provide an opinion as to whether the diagnosed lung nodule could be etiologically related to service, thus an addendum is required. Also, the Veteran asserts COPD is directly related to service because tobacco abuse had onset in service. For claims received by VA after June 9, 1998, as is the case here, a disability that results from injury or disease attributable to a veteran's use of tobacco products during service will not be considered service-connected. See 38 C.F.R. § 3.300 (a). Thus, COPD cannot be granted as directly related to the in-service tobacco use. Alternatively, the Veteran asserts that COPD is due to tobacco abuse, and that tobacco abuse is secondary to his service-connected posttraumatic stress disorder (PTSD). He explains that he began smoking during his deployment to Vietnam to cope with the stress, and that he continued to smoke/use tobacco to cope with chronic stress related to PTSD. Essentially, his contention is that tobacco abuse is an intermediate step between PTSD and the development of COPD. Precedent has established that obesity may serve as an intermediate step between a service-connected disability and a current disability for purposes of secondary service connection. Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020); Marcelino v. Shulkin, 29 Vet. App. 155 (2018); VAOPGCPREC 1-2017 (obesity may be an intermediate step in a service connection claim). Unlike obesity, however, smoking/tobacco abuse has not been expressly recognized by VA or the U.S. Court of Appeals for Veterans Claims as an "intermediate step" in determining whether secondary service connection is warranted. In the absence of any precedent or law creating an exception to the prohibition on service connection for a disability related to use of tobacco products, the Board does not find that any development is warranted in response to this theory. 38 C.F.R. § 3.300 (a). The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his claimed thoracolumbar spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether a diagnosed thoracolumbar spine disability had onset in, or is otherwise related to, active military service. Why or why not? (b.) The examiner must provide an opinion regarding whether symptoms of arthritis of the thoracolumbar spine manifested in service, or within a year of separation from service. Why or why not? (c.) The examiner should address the Veteran's competent assertions of an in-service fall with back injury that is consistent with the nature of his duties; the consistent lay testimony of chronic, intermittent back pain since an in-service onset; and the Veteran's testimony that he received chiropractic care in 1969 but those records are no longer available. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether hypertension is related to active military service, to include military environmental exposure/herbicide agents. Why or why not? (b.) The examiner must provide an opinion regarding whether hypertension is caused by service-connected coronary artery disease. Why or why not? (c.) The examiner must provide an opinion regarding whether hypertension is aggravated by service-connected coronary artery disease. Why or why not? (d.) The examiner must specifically address the 2018 NAS/IOM, Veterans and Agent Orange report update that now shows hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed squamous cell carcinoma of the left tonsil. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether squamous cell carcinoma of the left tonsil is related to active military service, to include military environmental exposure/herbicide agents regardless of whether it is a presumptive condition. Why or why not? 4. After any additional records are associated with the claims file, obtain an addendum opinion on the etiology of the Veteran's claimed lung disorder. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. (a.) The examiner should identify all lung disorders that have been present at any time since March 2017. (b.) Is any identified lung disorder, including the diagnosed lung nodule, related to active military service, to include military environmental exposure/herbicide agents? Why or why not? LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.