Citation Nr: 1802263 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-19 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hypertension, and if so, whether service connection is warranted. 2. Entitlement to service connection for type II diabetes mellitus. 3. Whether new and material evidence has been received to reopen a claim for service connection for unspecified joint pain (to include as due to undiagnosed illness), and if so, whether service connection is warranted REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to March 1992. This matter comes before the Board of Veterans' Appeals (the Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for unspecified joint pain (to include as due to undiagnosed illness) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not submit a timely notice of disagreement to the April 2009 rating decision denying service connection for hypertension; therefore it became final. 2. Additional evidence, considered with the record as a whole, is cumulative or redundant of the evidence of record at the time of the last prior final denial and does not raise a reasonable possibility of substantiating the claim for service connection for hypertension. 3. The Veteran did not file a notice of disagreement, nor submit any new and material evidence within a year following the August 2002 rating decision; therefore it became final. 4. Additional evidence, considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial and raises a reasonable possibility of substantiating the claim for service connection for unspecified joint pain. 5. The preponderance of the evidence is against a finding that the Veteran has type II diabetes mellitus which is causally related to, or aggravated by, an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The original April 2009 rating decision denying the claim for service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the April 2009 rating decisions is not new and material to reopen the claim for service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The original August 2002 rating decision denying the claim for service connection for unspecified joint pain, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. Evidence received since the time of the last prior final denial is new and material to reopen the claim for service connection for unspecified joint pain. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2016). 5. The criteria for service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). I. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. 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 received 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, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. The Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Hypertension The Veteran's claim for service connection for hypertension was originally denied by the RO in April 2009. The RO denied the claim on the basis that the Veteran's service treatment records showed no evidence of complaints, treatment, or diagnosis of hypertension, now shown by the record, while in service. The Veteran prematurely filed a notice of disagreement in April 2009, nine days before the rating decision denying the claim was issued. The Veteran was notified in a letter by the RO of this error and provided 10 days to submit a new notice of disagreement. The Veteran did not submit a timely notice of disagreement; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. In July 2011, the Veteran attempted to reopen his claim for service connection for hypertension. The RO denied reopening the claim in an August 2013 rating decision on the basis that no additional evidence had been received to show that the Veteran's hypertension was related to service. The Veteran was on medication for hypertension while in prison. See May 2000 Correctional Facility Outpatient Services Initial Encounter Form. This evidence was of record at the time of the last final prior denial. At the time of the April 2009 rating decision, the evidence of record included the Veteran's service treatment records, VA medical records, outpatient clinic records from January 2008 to June 2008, and correctional facility records, none of which establish a nexus between the Veteran's hypertension and service. As such, there is no competent, credible evidence establishing an in-service event or other indication, besides the Veteran's lay statements, that his hypertension may be related to service. As to the lay statements made by the Veteran concerning the etiology of his hypertension, lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, hypertension is a disability with a diagnosis that is confirmed only with specific diagnostic testing and is not readily observable to a lay individual without training or credentials. Notably, 38 C.F.R. § 4.104, Diagnostic Code 7101 indicates that a diagnosis of hypertension can only be made after certain blood pressure findings. As this matter falls outside the realm of common knowledge of a lay person, the Veteran's statements therefore do not constitute competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For the foregoing reasons, the Board finds that since April 2009, the Veteran has not submitted new or material evidence that establishes that his hypertension is causally related to, or aggravated by, an event, injury, or disease in service. To the extent that the evidence of record received since the April 2009 decision could be deemed new, it could not, when considered by itself or with previous evidence of record, reasonably substantiate the claim were the claim to be reopened. Specifically, there is no new evidence containing a competent opinion that the Veteran's current hypertension is related to his active duty service. Therefore, on this record, new and material evidence has not been submitted to reopen the previously denied claim for service connection for hypertension, and this claim must be denied. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 110. Unspecified Joint Pain The Veteran filed a claim for service connection for joint pain due to an undiagnosed illness in June 2001. The RO denied the Veteran's claim in an August 2002 rating decision on the basis that the Veteran's service treatment records did not show a chronic joint problem. The Veteran did not file a notice of disagreement, nor submit any new and material evidence within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In January 2007, the Veteran submitted a request to reopen his claim for entitlement to service connection for unspecified joint pain. The RO denied reopening the claim in a November 2008 rating decision on the basis that no additional evidence had been received to show that the Veteran's unspecified joint pain was related to service. The Veteran did not file a notice of disagreement, nor submit any new and material evidence within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In July 2011, the Veteran submitted a request to reopen his claim for entitlement to service connection for unspecified joint pain. The RO denied reopening the claim in an August 2013 rating decision on the basis that no additional evidence had been received to show that the Veteran's unspecified joint pain was related to service. The Board finds that evidence has been received to reopen the Veteran's claim for service connection for unspecified joint. As noted above, for a claim to be reopened from a final, unappealed, decision, new and material evidence must be provided. 38 C.F.R. § 3.156(a). Review of the record shows that the Veteran contends that his exposure to various toxins such as depleted uranium, fuel, and oil fires, while stationed in the Gulf caused his undiagnosed illness manifested by joint pain. See August 2011 Claim; see also November 2017 Informal Hearing Presentation. This evidence is both new and material to the Veteran's claim for service connection for unspecified joint pain. This evidence was not before the RO since the last final denial and it is not cumulative or redundant evidence then of record. It raises a reasonable possibility of substantiating the Veteran's claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Board finds that new and material evidence has been added to the record and the claim for service connection for unspecified joint pain (to include as due to undiagnosed illness) must be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). A nexus between the current disability and service may be established by evidence of continuity of symptomatology since service for a listed chronic disability. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan, 451 F.3d at 1337. For Veterans with 90 days or more of active service during a war period or after December 31, 1946, some chronic diseases such as hypertension and type II diabetes mellitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, the Veteran served from February 1987 to March 1992. However, the Veteran is not entitled to presumptive service connection because there is no competent, credible medical evidence of record that reflects a diagnosis of diabetes mellitus within a year of separation from active duty. Notably, the earliest evidence of a diagnosis of diabetes mellitus is in June 2010. See August 2010 Primary Care Progress Note. In addition, there is no competent medical evidence of the disability in service. The Board recognizes that the Veteran has not had an examination to obtain a medical opinion regarding a direct connection between diabetes mellitus and service. However, the Board finds that an examination is not required. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an 'in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is sufficient evidence to decide the claims because there is no evidence establishing an in-service event or other indication, besides the Veteran's lay statements, that the disability might be related to service. As to the lay statements made by the Veteran concerning the etiology of his diabetes mellitus, lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, diabetes mellitus is a disability with a diagnosis that is confirmed only with specific diagnostic testing and is not readily observable to a lay individual without training or credentials. Notably, 38 C.F.R. § 4.119, Diagnostic Code 7913 refers to glucose testing for type II diabetes mellitus. All of these matters fall outside the realm of common knowledge of a lay person, and the Veteran's statements therefore do not constitute competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because the preponderance of the evidence is against the claim, the benefit of-the-doubt doctrine does not apply, and the claim for service connection for type II diabetes mellitus must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER As new and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension, the appeal is denied. New and material evidence having been received, the claim of entitlement to service connection for unspecified joint pain (to include as due to undiagnosed illness) is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for diabetes mellitus is denied. REMAND Having reopened the Veteran's claim, the Board must now determine whether the claim of entitlement to service connection for unspecified joint pain (to include as due to undiagnosed illness), may be granted on the merits de novo. The Board finds that further development is necessary prior to appellate review. The Veteran essentially contends that his joint pain is due to service in the Persian Gulf. Service connection may be established for a qualifying chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A "qualifying chronic disability" includes: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2)(B); 38 C.F.R. § 3.317. The Veteran's personnel and service treatment records verify that he has qualifying active service in the Southwest Asia theater of operations during the Persian Gulf War. Therefore, on remand, the Veteran should be afforded a Gulf War examination for this disability. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). While on remand, the RO also should attempt to obtain the Veteran's updated VA treatment records and any relevant private medical records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim, including any private treatment records following proper VA procedures. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) (2017). 2. Afford the Veteran a VA medical examination to address the nature and etiology of his claimed symptoms, to include unspecified joint pain. The examiner must review the Veteran's electronic records, including this Remand. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be used. After conducting a thorough examination of the Veteran and performing any clinically indicated diagnostic testing, the examiner should answer the following questions: a.) Does the Veteran suffer from chronic symptomatology associated with joint pain? If so, are any of the symptoms attributable to a known clinical diagnosis? Please name all appropriate diagnoses. If no diagnosis can be made based on testing and the evidence, but there is chronic symptomatology, please so state. Also, if there is no disability which is chronic in nature, please so state. The examiner is advised that he or she is expected to record all noted signs and reported symptoms, document clinical findings, and provide a diagnosis where possible. As this is an examination concerning undiagnosed illnesses due to service in the Gulf War, if the signs and symptoms are not characteristic of a known clinical diagnosis, or are not chronic in nature, then please so state. b.) After thoroughly addressing the above questions, the examiner must opine whether any current diagnoses, if made, are at least as likely as not (a 50 percent or greater probability) etiologically related to service. A complete rationale for any opinion provided is requested. The absence of evidence of treatment for joint pain in the Veteran's service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. Finally, after completing the above actions, as well as any other development that may be warranted, the RO must readjudicate the Veteran's claim in light of all the evidence of record. If any benefit on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs