Citation Nr: 1336951 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-07 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a heart disability to include status post myocardial infarction. 4. Entitlement to service connection for gastroesophageal reflux disease. 5. Entitlement to service connection for a gastric ulcer. 6. Entitlement to service connection for a liver disability. 7. Whether new and material evidence has been received to reopen a claim of service connection for a kidney disorder to include kidney stones, and if so, whether service connection is warranted. 8. Whether new and material evidence has been received to reopen a claim of service connection for bronchial asthma. 9. Whether new and material evidence has been received to reopen a claim of service connection for allergies. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to November 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of the Manila, Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which denied the claims for service connection and determined that new and material evidence had not been received to reopen the claim for service connection for allergies and asthma. The Board notes that a total rating based upon individual unemployability due to service-connected disabilities has been in effect from September 13, 1995. In a March 1981 Board decision, the Board denied service connection for a kidney disorder on the basis that there was no evidence of a current diagnosis of a kidney disorder. The Veteran was notified of this decision, but he did not file a timely appeal. The March 1981 Board decision to deny service connection for a kidney disorder is final. The Veteran filed a claim to reopen service connection for a kidney disorder in May 2008. The RO adjudicated the claim for service connection on the merits and did not discuss whether new and material evidence was received to reopen this claim. Before reaching the merits of the claim for service connection for a kidney disorder, the Board must first rule on the matter of reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). This issue has been recharacterized as an application to reopen as listed on the title page. The Veteran requested a videoconference hearing before the Board in July 2011. A hearing was scheduled in October 2013, but he failed to report to the hearing without explanation. Accordingly, the Board will proceed as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2013). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. Since the issuance of the most recent June 2011 supplemental statement of the case, additional VA treatment records dated from 2009 to March 2012 and VA examination reports and VA medical opinion reports dated in March 2012, April 2013, and June 2013, were associated with the claims file. The newly submitted evidence was associated with the record after 90 days from the date the appeal was certified and transferred to the Board. The newly submitted evidence was associated with the claims file in connection with claims for service connection and increased ratings for knee disabilities. The VA treatment records are cumulative of evidence already in the claims folder and the VA examination reports and medical opinions do not address the disabilities currently before the Board on appeal but address the unrelated knee disabilities. Thus, these submissions do not constitute additional pertinent evidence. The Board also notes that the June 2011 supplemental statement of the case considered the VA treatment records dated to June 2011. An additional remand to the RO specifically for consideration of that evidence is unnecessary. 38 C.F.R. § 20.1304 (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Sinusitis first manifested many years after active service and is not caused by any in-service event, is not related to active service, and is not caused or aggravated by a service-connected disability. 2. No disease or chronic symptoms of hypertension were manifested during service. 3. The Veteran did not continuously manifest symptoms of hypertension in the years after service. 4. Hypertension was not manifested to a degree of ten percent within one year of service separation. 5. Hypertension first manifested many years after active service and is not caused by any in-service event, is not related to active service, and is not caused or aggravated by a service-connected disability. 6. The Veteran does not have a current cardiovascular disorder other than hypertension and he did not have a myocardial infarction. 7. Gastroesophageal reflux disease first manifested many years after active service and is not caused by any in-service event, is not related to active service, and is not caused or aggravated by a service-connected disability. 8. The Veteran does not have a current diagnosed gastric ulcer. 9. The Veteran does not have a current diagnosed liver disability. 10. In a July 1997 decision, the RO denied service connection for asthma and allergies on the basis that there was no evidence of a medical nexus between the asthma and allergies and a service-connected disability and medications used to treat the service-connected disabilities. The Veteran was notified of this decision, but he did not file a timely appeal. 11. The evidence received since the July 1997 decision is either cumulative or, in conjunction with previously considered evidence, does not relate to an unestablished fact of nexus to a service-connected disability that is necessary to substantiate the claim for service connection for asthma and allergies. 12. In a March 1981 decision, the Board denied service connection for a kidney disorder on the basis that there was no evidence of a current diagnosed kidney disorder. The Veteran was notified of this decision, but he did not file a timely appeal. 13. The evidence received since the March 1981 decision is new, and in conjunction with previously considered evidence does relate to an unestablished fact that is necessary to substantiate the claim for service connection for a kidney disorder. 14. No disease or chronic symptoms of calculi of the kidney were manifested during service. 15. The Veteran did not continuously manifest symptoms of calculi of the kidney in the years after service. 16. A calculi of the kidney was not manifested to a degree of ten percent within one year of service separation. 17. The kidney disorder manifested by kidney stones is not caused by any in-service event, is not related to active service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 3. The criteria for service connection for a heart disability to include myocardial infarction are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 4. The criteria for service connection for gastroesophageal reflux disease are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 5. The criteria for service connection for a gastric ulcer are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 6. The criteria for service connection for a liver disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 7. The July 1997 decision to deny service connection for asthma and allergies is final. 38 U.S.C.A. §7105 (West 2002); 38 C.F.R. §§ 20.1103, 20.1104 (2013). 8. The evidence received subsequent to the July 1997 decision is not new and material to reopen service connection for asthma and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 9. The evidence received subsequent to the July 1997 decision is not new and material to reopen service connection for allergies and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 10. The March 1981 Board decision to deny service connection for a kidney disability is final. 38 U.S.C.A. §7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2013). 11. The evidence received subsequent to the March 1981 Board decision is new and material to reopen service connection for a kidney disability and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 12. The criteria for service connection for a kidney disability to include kidney stones are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For applications to reopen a claim based on new and material evidence, VA has a duty to notify the claimant of the definition of new and material evidence set forth in 38 C.F.R. § 3.156 and the basis upon which the claim for service connection had been previously denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As the Board is reopening the claim for service connection for a kidney disorder, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367- 68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). The Board notes that the RO adjudicated the claim for service connection for a kidney disorder on the merits and as discussed below, the Veteran received proper VCAA notice for the service connection claims. In this case, the RO provided a VCAA notice letter to the Veteran in April 2008, prior to the initial adjudication of the claims. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection and to reopen a claim based upon new and material evidence, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The April 2008 letter notified the Veteran of the definition of new and material evidence set forth in 38 C.F.R. § 3.156. The letter did not inform the Veteran of the basis for the denial of service connection for allergies or asthma but he was notified of the elements that he had to substantiate in order to establish service connection including that he needed to submit information or evidence which substantiated a nexus to service or a service-connected disability. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board finds the duty to notify provisions of the VCAA have been fulfilled. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran's service treatment records are associated with the claims folder. VA treatment records from the VA facilities in Seattle, Manila, Fresno, Puget Sound, and Fayetteville dated from 1989 to October 2011 are associated with the claims folder. The Veteran did not identify any treatment outside of the VA healthcare system. VA has not afforded the Veteran a medical examination or nexus opinion relating to his claims for service connection. See 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that such a VA examination and medical opinion are not necessary to render a decision under the circumstances of this case. Regarding the claims for service connection for a heart disorder to include a myocardial infarction, gastric ulcer, and a liver disorder, there is no competent evidence of a current diagnosis of the claimed disabilities or current symptoms. For this reason, the Board finds that referral of this claim for a VA examination or to obtain a medical opinion would be a useless act. The duty to assist is not invoked, even under McLendon, as here the evidence does not establish a current disability or current symptoms. Because "no reasonable possibility exists that such assistance would aid in substantiating the claim," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). Regarding the claims for service connection for sinusitis, hypertension, gastroesophageal reflux disease, and a kidney disorder, there is no indication that the claimed disorders may be associated with the Veteran's service-connected disabilities or the medications used to treat the service-connected disabilities. There is no competent evidence of these disorders in service. For these reasons, the Board finds that the duty to assist is not invoked, even under McLendon. For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claims and VA met its duty to assist the Veteran. II. Service Connection Claims Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, cardiovascular disease and calculi of the kidney are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular disease or calculi of the kidney become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. Id. Service connection can be granted for a disability that is aggravated by a service-connected disability. Compensation can be paid for any additional impairment resulting from the service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Except as provided in 38 C.F.R. § 3.300(c) (claims for secondary service connection based on the effects of tobacco products received after June 9, 1998), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level." Id. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3, 4.7. Analysis: Service connection for sinusitis, hypertension, and gastroesophageal reflux disease The Veteran contends that his current sinusitis, hypertension, and gastroesophageal reflux disease are caused by the medications he takes for his service-connected disabilities. At the time he filed his claim for disability compensation, service connection was in effect for the following disabilities: thrombophlebitis of the right leg with residual inguinal pain secondary to vein stripping which was rated at 60 percent from September 13, 1995; low back strain which was rated at 10 percent from September 13, 1995; dysthymic disorder rated at 30 percent from September 13, 1995; and residuals of bunionectomy of the right foot which was rated at 10 percent from September 13, 1995. A total rating based upon individual unemployability due to service-connected disabilities has been in effect from September 13, 1995. There is competent evidence of current diagnoses of sinusitis, gastroesophageal reflux disease (GERD) and hypertension. A June 1996 VA examination report indicates that the Veteran has sinusitis since the 1980's. VA treatment records dated in January 1997 note GERD as an active problem. A June 2003 VA treatment record notes that hypertension was recently diagnosed. The Board finds the weight of the competent and credible evidence shows that the sinusitis, GERD, and hypertension are not proximately due to or aggravated by the service-connected disabilities to include medications used to treat such disorders. There is no competent evidence which establishes such relationship. The VA treatment records show that the Veteran underwent periodic reviews of his medications in May 2009, July 2009, January 2010, July 2010, October 2010, December 2010, and February 2011. The proper use of the medications was reviewed and side effects were considered. There was no mention in the records that the medications caused any of the claimed disabilities. The Veteran has not submitted any competent evidence to support his contentions. The Veteran himself has related his claimed disabilities to the medications used to treat his service-connected disabilities and to the service-connected thromboplebitis of the right leg. In a March 2008, he contends that he was told by his doctor that all of the problems were caused by his pain medications. As noted, the Veteran, as a lay person, is competent to describe observable symptoms such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of sinusitis, hypertension, and GERD, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Lay testimony on the question of relating the current sinusitis, hypertension, and GERD to a specific type of medication is not competent in the present case, because the Veteran is not competent to render an opinion as to whether a certain medication may cause a certain disease or disability. See Davidson v. Shinseki, 581 F.3d 1313, 316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). An opinion of etiology would require medical and scientific knowledge that the Veteran does not have. The Veteran assets that his doctors have told him that his medications caused all of his problems or claimed disabilities. However, the VA treatment records do not reveal any statements from treating physicians or health care providers relating the onset of the claimed sinusitis, hypertension, or GERD to the Veteran's medications. As noted above, the VA treatment records show that the Veteran undergoes periodic review of his medications; he underwent 8 reviews from May 2009 to February 2011. A medical relationship between the medications and the claimed disorders has not been documented in the VA treatment records. The record contains many medical treatment notations regarding the sinusitis, hypertension, and GERD and the medications prescribed to the Veteran but at no time did a physician or other medical professional express an opinion regarding a link between the claimed disorders and the service-connected disabilities or the medications prescribed to the Veteran. As such, service connection for sinusitis, hypertension, and GERD as secondary to the service-connected disabilities is denied. 38 C.F.R. § 3.310; Allen, supra. The Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for sinusitis, hypertension, and GERD on a direct or presumptive basis. Service treatment records show no complaints, treatment, or diagnosis of sinusitis, hypertension, or GERD in active service. A February 1958 discharge and reenlistment examination and an October 1959 separation examination indicates that physical examination of the nose and sinuses, heart and vascular system, and abdomen and viscera was normal. The Veteran separated from active service in November 1959. The Veteran was afforded a VA examination in August 1960, within a year of service separation. The VA examiner determined that the Veteran did not have heart disease. Sinusitis, hypertension, and GERD were not diagnosed or detected. The evidence of record shows that the sinusitis first manifested in the 1980's, over 20 years after service separation. The evidence of record shows that GERD was noted in the 1990's, over 30 years after service separation. Hypertension first manifested in about 2003, over 40 years after service separation. The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that hypertension did not manifest to a compensable (10 percent) degree within a year of service separation. As noted above, the August 1960 VA examination did not detect heart disease. There is no competent evidence of record showing a diagnosis of hypertension compensable to 10 percent within one year form service separation. The Board also finds that the Veteran did not experience continuous symptoms of hypertension in service or since service separation. The Veteran has not presented any competent evidence of hypertension symptoms since separation from service until the time of the diagnosis of hypertension in 2003. There is no competent medical evidence of record indicating that the current sinusitis, hypertension, or GERD are related to injury or other event in active service. The record contains many medical treatment and medical examination notations regarding treatment for these disorders and at no time did a physician or other medical professional express an opinion regarding a link between these disabilities and any injury or event in active service. The Board finds the weight of the competent and credible evidence shows that the sinusitis, hypertension, and GERD did not manifest in service, first manifested over 20 years after active service and are not related to active service. Thus, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for sinusitis, hypertension, and GERD on a direct basis. Analysis: Service connection for a heart disability to include myocardial infarction, gastric ulcer, and a liver disability The weight of the competent and credible evidence shows that the Veteran does not have current diagnoses of a heart disability other than hypertension, a gastric ulcer, or a liver disability. VA treatment records and VA examination reports do not show diagnoses of these disorders. Regarding the claimed heart disorder other than hypertension, the Veteran asserts that he had a myocardial infarction. He also asserts that his service-connected disabilities affected his ability to exercise and this caused a heart disability. There is no competent evidence of a heart disorder other than hypertension. The Veteran was afforded a VA examination in August 1960 within one year of service separation. The August 1960 VA examination report indicates that there was no evidence of heart disease. VA treatment records dated in December 1989 indicate that the Veteran was seen regarding an echocardiogram (ECG) and chest x-ray. The Veteran expressed concern over an abnormal ECG. The record shows that the Veteran's ECG report noted a normal sinus rhythm and inferior infarct age undetermined. The record further indicates that a VA physician reviewed the ECG results, consulted with another physician, and concluded that the diagnosis of a myocardial infarction could not be justified by the minimal Q waves in the inferior leads. Chest x-ray was negative. The remaining medical evidence of record does not establish a diagnosis of myocardial infarction or other heart disorder other than hypertension. The Veteran only identified treatment at VA. The VA treatment records and examination reports do not document or establish a diagnosis of a heart disorder other than hypertension. The record shows that the Veteran seeks medical treatment frequently at VA and at no time was a heart disability diagnosed. The Veteran made general assertions that he had a myocardial infarction in the past. He does not provide any specific information about this event; he does not provide a date of this incident or indicate where he sought medical treatment. The weight of the medical evidence is against the Veteran's lay assertions that he had a myocardial infarction in the past. While the Veteran is competent to state that he has observable symptoms such as chest pain, he is not competent to render a medical diagnosis. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). The weight of the evidence establishes that the Veteran did not have a myocardial infarction in the past and he does not have a current diagnosis of a heart disability other than hypertension. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim of service connection for myocardial infarction and a heart disability other than hypertension is denied. The Veteran has made general assertions that he has a liver disorder and a gastric ulcer due to the medications he takes for his service-connected disabilities. The weight of the competent and credible evidence shows that the Veteran does not have current diagnoses of a liver disorder or a gastric ulcer. VA treatment records and VA examination reports do not show diagnoses of these disorders. The Veteran has not submitted any competent evidence to establish a diagnosis of these disorders. The Veteran indicated that he received his medical treatment at VA. The VA treatment records and examination reports do not document or establish a diagnosis of a liver disorder or a gastric ulcer. The record shows that the Veteran seeks medical treatment on a fairly regular basis at VA and at no time was a liver disorder or gastric ulcer diagnosed. These disorders are not listed as active or past medical issues. The weight of the medical evidence is against the Veteran's lay assertions that he had a liver disorder or gastric ulcer. While the Veteran is competent to state that he has observable symptoms such as pain, he is not competent to render a medical diagnosis. See Jandreau; supra; see also Jones, supra. Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra. Accordingly, on this record, the evidence is found to preponderate against the claim that the Veteran has a current diagnosis of a liver disorder or a gastric ulcer. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert; supra. Accordingly, the claim of service connection for a liver disorder and a gastric ulcer is denied. III. Claims to Reopen Service Connection Reopening Legal Authority Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Analysis: Claims to reopen service connection for bronchial asthma and allergies In this case, the RO issued a decision in July 1997 which denied service connection for allergies and asthma on the merits on the basis that there was no evidence of a medical nexus between the claimed disorders and the service-connected disability or active service. The Veteran was notified of the decision, but he did not perfect a timely appeal; therefore, the July 1997 decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The evidence of record at the time of the July 1997 decision included the Veteran's service treatment records; VA examination reports dated in August 1960, July 1965, November 1971, October 1979, June 1996, December 1996, and May 1997; VA hospital records dated in 1960, 1965, 1966, 1967, 1968, 1969, 1972, and 1990; VA treatment records from Seattle dated in May 1966, 1989 to 1990, and in 1995 to May 1997. The Veteran's service treatment records are negative for complaints, treatment, or diagnosis of allergies or asthma. A June 1996 VA examination report indicates that the Veteran had allergies since the 1980's and asthma was diagnosed in the early 1980's. A December 1996 VA examination report indicates that the VA physician considered whether the current asthma was caused by the service-connected thromboplebitis of the right leg and the medications used to treat the thromboplebitis. The VA physician concluded that the asthma was not caused by the phlebitis or medications used for the phlebitis. The VA examiner noted that the Veteran had multiple allergies to medications. The July 1997 decision denied service connection for allergies and asthma on the merits on the basis the evidence did not show that allergies or asthma were related to the service-connected right leg thromboplebitis nor was there any evidence of these disabilities during military service. The RO indicated that an allergy to medications was not a disability subject to service connection. In March 2008, the Veteran applied to reopen service connection for allergies and asthma. In a decision dated in August 2008, the RO denied reopening service connection for allergies and asthma. The evidence received since the last final decision dated in July 1997 includes VA treatment records from Manila dated from 2002 to June 2011; VA treatment records from Fayetteville dated from December 2003 to June 2011; VA treatment records from Fresno dated in 2002; and VA examination report dated in December 2010. The VA treatment records are new evidence because this evidence was not part of the record at the time of the July 1997 decision. However, this evidence is not material because this evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection for asthma and allergies. The VA treatment records show that the Veteran continued to be treated for allergies and asthma. However, this additional evidence does not tend to show a medical relationship or proximate cause between the allergies and asthma and the service-connected disabilities including the medication used to treat the disabilities. A November 2004 VA treatment record notes that the Veteran claimed that his allergies were due to anti-inflammatories but the treating physician noted that he questioned this assertion. This evidence tends to show that there is no relationship between the allergies and anti-inflammatories. This evidence does not raise a reasonable possibility that the Veteran has current allergies and asthma that is secondary to a service-connected disability. Significantly, the evidence on the service connection element missing at the time of the July 1997 decision continues to be absent and there remains no competent and credible evidence tending to show that the Veteran's allergies and asthma are related to service-connected disabilities. The newly submitted VA treatment records indicate that the Veteran had allergies to certain medications including naproxen, oxycodone, and aspirin. See the VA treatment records showing periodic reviews of the Veteran's medications in May 2009, July 2009, January 2010, July 2010, October 2010, December 2010, and February 2011. The Board notes that in the July 1997 decision, the RO considered that the Veteran had allergies to medications and indicated that an allergy to medications was not a disability subject to service connection. Thus, the Board finds that this evidence is not new and material. This evidence is cumulative of the evidence that was part of the record at the time of the July 1997 decision and it does not relate to an unestablished fact necessary to substantiate the claim, and it does not raise a reasonable possibility of substantiating the claim. The VA examination report dated in December 2010 does not address the allergies and asthma disabilities; the genitourinary system was examined. This evidence is not material because it is not relevant or pertinent to the claim to reopen, it does not relate to an unestablished fact necessary to substantiate the claim, and it does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received to reopen service connection for allergies and asthma. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Analysis: Claims to reopen service connection for a kidney disorder to include kidney stones In this case, the RO issued a decision in March 1980 which denied service connection for a kidney disorder on the merits on the basis that there was no evidence of a current diagnosis of a kidney disorder and the findings of blood in urine in and of itself was not a disability. The Veteran was notified of the decision, but he perfected a timely appeal. A March 1981 Board decision denied service connection for a kidney disorder on the merits on the basis that there was no evidence of a current diagnosis of a kidney disorder. The March 1981 Board decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The evidence of record at the time of the March 1981 included the Veteran's service treatment records; VA examination reports dated in August 1960, July 1965, November 1971, and October 1979; VA hospital records dated in 1960, 1965, 1966, 1967, 1968, 1969, and 1972; and VA treatment records dated in May 1966. The Veteran's service treatment records are negative for complaints, treatment, or diagnosis of a genitourinary or kidney disorder. An August 1960 VA examination report indicates that that x-ray examination of the kidneys was normal. An October 1979 VA examination report indicates that the examiner concluded that the Veteran had painless microhematuria. The examiner noted that he had reviewed the Veteran's treatment records and noted that in September 1979, serial intravenous pyelogram, cystogram, renal arteriogram, and ultrasound studies were negative. The March 1981 Board decision denied service connection for a kidney disorder on the merits on the basis that the evidence did not demonstrate a kidney disorder microhematuria was not in of itself chronic kidney disease. In May 2008, the Veteran applied to reopen service connection for a kidney disorder. In a decision dated in August 2008, the RO denied service connection for a kidney disorder on the merits. The RO adjudicated the claim for service connection on the merits and did not discuss whether new and material evidence was received to reopen this claim. As noted in the introduction, before reaching the merits of the claim for service connection for a kidney disorder, the Board must first rule on the matter of reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson, 265 F.3d at 1369. The evidence received since the last final Board decision dated in March 1981 includes VA examination reports dated in June 1996, December 1996, and May 1997; VA hospital records dated in 1989 and 1990; VA treatment records from Seattle dated in 1995 to May 1997; VA treatment records from Manila dated from 2002 to June 2011; VA treatment records from Fayetteville dated from December 2003 to June 2011; VA treatment records from Fresno dated in 2002; and a VA examination report dated in December 2010. The VA treatment records from Manila dated in August 2005, June 2007, and May 2008 show that the Veteran had diagnoses of kidney stones. This evidence is new because this evidence was not part of the record at the time of the March 1981 Board decision. This evidence is material because this evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a kidney disorder which is whether there is evidence of a current kidney disability. This medical evidence shows that the Veteran had a kidney disorder, which was kidney stones. The Board concludes there is sufficient evidentiary basis to reopen the Veteran's claim on appeal. The Board finds the newly submitted evidence to be both new and material and the Veteran's claim for service connection for a kidney disorder is reopened. 38 U.S.C.A. § 5108 (West Supp. 2010); 38 C.F.R. § 3.156 (2013). The Board will now consider whether service connection is warranted for a kidney disorder on a direct or secondary basis. The Veteran contends that his current kidney disorder, manifested by kidney stones, is caused by the medications he takes for his service-connected disabilities. As noted above, there is competent evidence of a current kidney disorder. The VA treatment records from Manila dated in August 2005, June 2007, and May 2008 show that the Veteran had diagnoses of kidney stones. The December 2010 VA examination report indicates that the Veteran had a history of urinary tract stones. The Board finds the weight of the competent and credible evidence shows that the kidney stone disorder is not proximately due to or aggravated by the service-connected disabilities to include medications used to treat such disorders. There is no competent evidence which establishes that such relationship. The VA treatment records show that the Veteran underwent periodic reviews of his medications in May 2009, July 2009, January 2010, July 2010, October 2010, December 2010, and February 2011. The proper use of the medications were reviewed and side effects were considered. There was no mention in the records that the medications caused the claimed disability. The Veteran has not submitted any competent evidence to support his contentions. The VA treatment records from Manila dated in August 2005, June 2007, and May 2008 which show treatment for kidney stones do not relate the kidney stones to the service-connected disabilities and do not address the etiology or the cause of the kidney stones. The Veteran's own assertions of a relationship between the claimed kidney stone disorder and the service-connected disabilities are not competent because the Veteran does not have the medical expertise to render a medical opinion on etiology. See Jandreau, supra. See also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran asserts that his doctors have told him that his medications caused all of his problems or claimed disabilities. However, review of the VA treatment records do not reveal any statements from treating physicians or health care providers relating the onset of the kidney stones to the Veteran's medications. As noted above, the VA treatment records show that the Veteran undergoes periodic review of his medications; he underwent 8 reviews from May 2009 to February 2011. A medical relationship between the medications and the claimed disorder has not been documented in the VA treatment records. There is no competent medical evidence of record indicating that the current kidney disorder to include kidney stones was caused or aggravated by the service-connected disabilities or the medications used to treat the service-connected disabilities. As such, service connection for a kidney disorder to include kidney stones as secondary to the service-connected disabilities is denied. 38 C.F.R. § 3.310; Allen, supra. The Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a kidney disorder on a direct or presumptive basis. Service treatment records show no complaints, treatment, or diagnosis of a kidney disorder or kidney stones in active service. A February 1958 discharge and reenlistment examination and an October 1959 separation examination indicates that physical examination of the genitourinary system was normal. The Veteran separated from active service in November 1959. The Veteran was afforded a VA examination in August 1960, within a year of service separation. A kidney disorder was not diagnosed or detected. An August 1960 VA examination report indicates that that x-ray examination of the kidneys was normal. An October 1979 VA examination report indicates that the examiner concluded that the Veteran had painless microhematuria. The examiner noted that he had reviewed the Veteran's treatment records and noted that in September 1979, serial intravenous pyelogram, cystogram, renal arteriogram, and ultrasound studies were negative. The earliest evidence of kidney stones is in 2005, over 40 years after service separation. VA treatment records from Manila dated in August 2005 show treatment for kidney stones. The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that kidney stones did not manifest to a compensable (10 percent) degree within a year of service separation. As noted above, the August 1960 VA examination did not detect a kidney disorder or kidney stones. There is no competent evidence of record showing a diagnosis of a calculi of the kidneys compensable to 10 percent within one year from service separation. The Board also finds that the Veteran did not experience continuous symptoms of kidney stones in service or since service separation. The Veteran has not presented any competent evidence of kidney stone symptoms since separation from service until the time of the diagnosis in 2005. The Board finds that the calculi of the kidney is a "chronic disease" listed under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b) are applicable. See Walker, supra. However, the Board finds that the weight of the competent and credible evidence establishes that the calculi of the kidney was not compensable to a degree of 10 percent within one year of service separation, the Veteran did not experience "chronic" symptoms of kidney stones during service, he did not have continuous or chronic kidney stone symptoms since service, and the kidney stones first manifested many years after service separation and are not related to disease or injury in service. Thus, presumptive service connection for calculi of the kidney under the provisions of 38 C.F.R. § 3.303(a) and (b) is not warranted. There is no competent medical evidence of record indicating that the kidney stones are related to injury or other event in active service. The Board finds the weight of the competent and credible evidence shows that the kidney disorder manifested by kidney stones did not manifest in service, first manifested over 40 years after active service and is not related to active service. Thus, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a kidney disorder to include kidney stones on a direct basis. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for a kidney disorder to include kidney stones as a presumptive disease, on a direct basis, and on a secondary basis, and the claim must be denied. ORDER Service connection for sinusitis on a direct and secondary basis is denied. Service connection for hypertension on a direct and secondary basis is denied. Service connection for a heart disability to include myocardial infarction on a direct and secondary basis is denied. Service connection for gastroesophageal reflux disease on a direct and secondary basis is denied. Service connection for a gastric ulcer on a direct and secondary basis is denied. Service connection for a liver disorder on a direct and secondary basis is denied. New and material evidence having not been received, the appeal to reopen service connection for allergies is denied and the claim is not reopened. New and material evidence having not been received, the appeal to reopen service connection for asthma is denied and the claim is not reopened. New and material evidence having been received, the appeal to reopen service connection for a kidney disorder is granted and the claim is reopened. Service connection for a kidney disorder on a direct and secondary basis is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs