Citation Nr: 18131304
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 18-13 322
DATE:	August 31, 2018
ORDER
The application to reopen the previously denied claim of entitlement to service connection for gout is granted.  
The application to reopen the previously denied claim for entitlement to service connection for degenerative joint disease (DJD) of the cervical spine is granted.  
The application to reopen the previously denied claim for entitlement to service connection for a right knee disability, to include DJD and chondromalacia of the right knee, is granted.  
The application to reopen the previously denied claim for entitlement to service connection for a left knee disability, to include DJD of the left knee, is granted.  
The application to reopen the previously denied claim for entitlement to service connection for pes planus is granted.  
REMANDED
Entitlement to service connection for gout is remanded.  
Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine is remanded.  
Entitlement to service connection for a right knee disability, to include DJD and chondromalacia of the right knee, is remanded.  
Entitlement to service connection for a left knee disability, to include DJD of the left knee, is remanded.  
Entitlement to service connection for pes planus is remanded.  
Entitlement to service connection for a right testicular varicocele is remanded.  
Entitlement to service connection for colorectal adenocarcinoma is remanded.
FINDINGS OF FACT
1. In an August 1977 rating decision, the RO denied entitlement to service connection for a right knee disability.  The appellant was notified of the RO’s decision and his appellate rights in a March 1978 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of the decision.  
2. In a May 1986 rating decision, the RO denied entitlement to service connection for pes planus.  The appellant was notified of the RO’s decision and his appellate rights in a May 1986 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of the decision.  
3. In an August 2008 rating decision, the RO denied entitlement to service connection for right and left knee disabilities.  The appellant was notified of the RO’s decision and his appellate rights in an August 2008 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of the decision.  
4. In a September 2010 rating decision, the RO denied entitlement to service connection for a cervical spine disability.  The appellant was notified of the RO’s decision and his appellate rights in a September 2010 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of that decision. 
5. In an April 2014 rating decision, the RO denied entitlement to service connection for gout, entitlement to service connection for a cervical spine disability, entitlement to service connection for a right knee disability, and entitlement to service connection for a left knee disability.  The appellant was notified of the RO’s decision and his appellate rights in an April 2014 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of that decision.  
6. Evidence received since the last final decisions in May 1986 and April 2014, denying entitlement to service connection for a right knee disability, pes planus, a left knee disability, a cervical spine disability, and gout, is related to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the service connection claims.  
CONCLUSIONS OF LAW
1. The August 1977 rating decision denying the claim of entitlement to service connection for a right knee disability is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
2. The May 1986 rating decision denying the claim of entitlement to service connection for pes planus is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
3. The August 2008 rating decision denying the claim of entitlement to service connection for a right knee disability and a left knee disability is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
4. The September 2010 rating decision denying the claim of entitlement to service connection for a cervical spine disability is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
5. The April 2014 rating decision denying the claim of entitlement to service connection for gout, a cervical spine disability, a right knee disability, and a left knee disability is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
6. New and material evidence has been received to warrant the reopening of the previously denied claims of entitlement to service connection for gout, a cervical spine disability, a cervical spine disability, a right knee disability, a left knee disability, and pes planus.  38 U.S.C. §§ 5107, 5108; 38 C.F.R. §3.156.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant served in the United States Marine Corps from May 1960 to May 1964.  
New and Material Evidence
1. The application to reopen the previously denied claims for entitlement to service connection for gout, DJD of the cervical spine, a right knee disability, a left knee disability, and pes planus, is granted.  
In general, decisions of the RO and the Board that are not appealed in the prescribed period are final.  See 38 U.S.C. 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103.  Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.
For claims such as this one, filed on or after August 29, 2001, 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.
To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  In Justus v. Principi, the Court held that in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.  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.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, 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.  Id. at 118.
In an August 1977 rating decision, the RO denied entitlement to service connection for a right knee disability because there was no evidence of an in-service injury or an in-service incurrence of the disability.  The RO noted that the service treatment records were entirely negative for complaints or treatment for a right knee disability and no disabilities were identified at the appellant’s discharge examination.  The appellant was notified of the RO’s decision and his appellate rights in a March 1978 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of the decision.  
In a May 1986 rating decision, the RO denied entitlement to service connection for a foot disability because there was no evidence of an in-service injury or an in-service incurrence of the disability.  The appellant was notified of the RO’s decision and his appellate rights in a May 1986 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of the decision.  
In an August 2008 rating decision, the RO denied entitlement to service connection for the appellant’s left knee disability because the record contained no evidence showing that the disability began during service or was caused by service.  The RO also denied the appellant’s claim to reopen his claim for entitlement to service connection for a right knee disability as the evidence submitted since the prior final rating decision was not determined to be new and material.  The RO noted that the record continued to lack evidence showing that a right knee disability began during service or that a current right knee disability was related to service.  The RO noted that the service treatment records were negative for notations of right or left knee complaints and that there was no evidence linking any current right knee disabilities to service.  The appellant was notified of the RO’s decision and his appellate rights in an August 2008 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of the decision.  
In a September 2010 rating decision, the RO denied entitlement to service connection for a cervical spine disability because there was no evidence of an in-service injury or incurrence of the disability.  The RO noted that the service treatment records showed no complaints or findings of a neck disability and that although the post-service treatment records showed arthritis of the cervical spine, there was no indication that the disability had manifested to a compensable degree within one year of separation or was otherwise related to service.  The appellant was notified of the RO’s decision and his appellate rights in a September 2010 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of that decision.  
In an April 2014 rating decision, the RO denied entitlement to service connection for gout as there was no evidence of an in-service injury or incurrence of the disability.  The RO noted that the service treatment records were negative for notations of gout and that there was no evidence of a link between any current gout and service.  The RO also denied the request to reopen the appellant’s claims for entitlement to service connection for a cervical spine disability, entitlement to service connection for a right knee disability, and entitlement to service connection for a left knee disability because the evidence submitted since the prior final rating decisions was not new and material.  The RO noted that the record continued to lack evidence of an in-service incurrence and evidence linking a current disabilities to service.  The appellant was notified of the RO’s decision and his appellate rights in an April 2014 letter, but he did not appeal within the applicable period, nor was new and material evidence received in the year following notification of that decision.  
In October 2016, the appellant filed a claim to reopen his previously denied claims for entitlement to service connection for gout, a cervical spine disability, a right knee disability, a left knee disability, and for pes planus.  In developing the claim, the appellant requested a hearing on the issues.  At his June 2018 hearing, the appellant presented testimony about a training accident where a fellow recruit slipped running up a hill and knocked him over.  The appellant asserts this is the in-service event which caused his cervical spine disability and his right and left knee disabilities.  He also claimed that his gout was the result of repeated beatings he received in basic training from his drill instructors.  The Board notes that the appellant is already service connected for posttraumatic stress disorder (PTSD) in relation to this claim of physical assault while in service.  He further claimed that his pes planus, which the Board observes is a preexisting condition, noted on the appellant’s entrance exam, was aggravated by all the marching and training he did during his time in the Marine Corps.  
As the appellant’s claims were denied because there was no evidence of an in-service injury or incurrence of disability, the Board finds that his testimony is evidence that is both new, as it was not previously of record, and material, as it relates to an unestablished fact, an in-service injury.  The Board presumes the evidence presented at the hearing is credible for determining whether new and material evidence has been presented.  See Justus 3 Vet. App. at 513.  As such, the Board finds that the claims for entitlement to service connection for gout, a cervical spine disability, a right knee disability, a left knee disability, and pes planus are reopened.  As discussed below, the Board finds that remand is necessary prior to adjudicating these claims.  
REASONS FOR REMAND
1. Entitlement to service connection for gout is remanded.
The appellant asserts that his gout is related to receiving regular beatings during his basic training from his drill instructors.  The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the appellant’s gout is the result of being the victim of personal assault while in service.  As such, remand is required to obtain a VA examination on the issue.  The appellant’s medical treatment records indicate his gout is primarily present in his right great toe.
2. Entitlement to service connection for DJD of the cervical spine is remanded.  
The appellant asserts that he has had neck pain since his time in active service, after a training accident during which a fellow recruit knocked him down while they were running up a hill.  The appellant’s medical treatment records indicate that he has DJD of the cervical spine.  The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the appellant’s cervical spine DJD is related to his active service, particularly this incident, or as generally related to his duties training in the United States Marine Corps.  As such, remand is required to a obtain a VA examination on the issue.  

3. Entitlement to service connection for a right knee disability, to include DJD and chondromalacia of the right knee, is remanded.  
The appellant asserts that he has had right knee pain since basic training, after a training accident during which a fellow recruit knocked him down while they were running up a hill.  The appellant’s medical treatment records indicate that he has DJD and chondromalacia of the right knee.  The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the appellant’s right knee DJD and chondromalacia are related to his active service, particularly this incident, or as generally related to his duties training in the United States Marine Corps.  As such, remand is required to obtain a VA examination on the issue.  
4. Entitlement to service connection for a left knee disability, to include DJD of the left knee, is remanded.  
The appellant contends that he has had left knee pain since his basic training after a training accident during which a fellow recruit knocked him down while they were running up a hill.  The appellant’s medical treatment records indicate that he has DJD of the left knee.  The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the appellant’s left knee DJD is related to his active service, particularly this incident, or as generally related to his duties training in the United States Marine Corps.  As such, remand is required to obtain a VA examination on the issue.
5. Entitlement to service connection for aggravation of pes planus, a noted pre-existing condition, is remanded.  
As a preliminary matter, the Board notes that the appellant’s pes planus was noted on his entrance examination.  Thus, the claim is considered on the basis of aggravation, as clarified by the appellant at his June 2018 Board hearing.  
The appellant asserts that his pes planus, which was noted as “asymptomatic” and of “Class 1” severity on his entrance examination, was aggravated by the marching and training he did while in the United States Marine Corps.  He contends that he should have never been cleared for duty because of the disability.  He also claims that this aggravation has led to more issues with his feet, particularly bunions, and hallux valgus.  The appellant has also been noted to have gout in his right great toe.  
The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the appellant’s pes planus was aggravated by his active service.  As such, remand is required to obtain a VA examination on the issue.  
6. Entitlement to service connection for a right testicular varicocele is remanded.
The appellant asserts that he has testicular pain related to an in-service physical assault.  As a preliminary matter, the Board notes that this issue was previously considered as secondary to PTSD.  The appellant at his June 2018 hearing clarified that he did not intend for the issue to be considered as directly caused by his psychiatric illness, but rather, as caused by the events which constituted his in-service stressor, the regular pattern of in-service physical assault he endured during basic training.  The appellant, at his hearing and in statements to the VA, contends that he was frequently struck in the testicles by his drill instructors as part of systematic and repetitive personal assaults he endured during basic training.  This contention was not considered at the appellant’s VA examination.  
The Board notes that the appellant, upon examination, was found to have a varicocele on his right testicle.  As such, on remand, the examiner should render an opinion on whether this pathology is the cause of the appellant’s claimed testicular pain.  Further, the examiner should opine as to whether the appellant’s testicular pain and right testicular varicocele are the result of repeated strikes to the testicles while the appellant was in active service.  The Board notes the appellant has already been service connected for PTSD based on credible statements of in-service physical assault.  

7. Entitlement to service connection for colorectal adenocarcinoma is remanded.
The appellant asserts that his current colorectal adenocarcinoma, diagnosed in 2016, is related to his active service, particularly repetitive personal assault he experienced in basic training.  The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the appellant’s colorectal adenocarcinoma is related to his active service.  As such, remand is necessary in order to obtain a VA examination on this issue.  
The matter is REMANDED for the following action:
1. Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of his gout.  The examiner must opine whether it is at least as likely as not related to an in-service injury or disease, including an in-service personal assault (which has resulted in service-connected PTSD), or an in-service training accident where the appellant recalls falling down a hill after colliding with another recruit.  
The examiner should also opine whether it at least as likely as not the appellant’s gout (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.
The examiner should also opine as to whether it is at least as likely as not the appellant’s gout is (1) proximately due to a service-connected disability, to include the appellant’s pending claim for aggravation of pes planus, or (2) aggravated by his pes planus.
2. Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of his cervical spine DJD, his right knee DJD and chondromalacia, and his left knee DJD.  The examiner must opine whether it is at least as likely as not these disabilities are related to an in-service training accident where the appellant fell down a hill after colliding with another recruit, or to the significant physical demands of training for the United States Marine Corps. 
The examiner should also opine as to whether it at least as likely as not that the appellant’s cervical spine DJD, right knee DJD and chondromalacia, and left knee DJD (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.
3. Schedule the appellant for an examination by an appropriate clinician to determine whether it is at least as likely as not that the appellant’s pes planus, noted as Class 1 and asymptomatic upon his entry into service, was aggravated during service, to include by the training and marching he did while in active service in the United States Marine Corps.  
The examiner should also opine whether the appellant’s pes planus was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress.  
4. Obtain an addendum opinion from an appropriate clinician regarding whether the appellant’s right testicular pain and right testicular varicocele are at least as likely as not related to his reported claims of in-service physical assault, which he has testified included regular striking of his genitals.  
5. Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of his anorectal adenocarcinoma.  The examiner must opine whether it is at least as likely as not related to an in-service injury or disease, including his reports of in-service physical assault.  
The examiner should also opine whether it at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.

 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Kleponis, Associate Counsel