Citation Nr: 18140060 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-16 843 DATE: October 2, 2018 ORDER Service connection for a low back disorder is reopened. To this extent only, the appeal is allowed. Service connection for a left leg disorder is reopened but remains denied. Service connection for a right leg disorder is denied. Service connection for an eye disorder claimed as glaucoma is denied. Service connection for a heart disorder is denied. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), dyslexia, and alcohol/drug dependency/drug use, is denied. FINDINGS OF FACT 1. The RO last denied service connection for a low back disorder in April 2009 and notified the Veteran of its decision and of his right to appeal it within 1 year thereof in May 2009. The Veteran did not appeal, nor was new and material evidence received within one year of the notification of the decision at the time. 2. Since the final April 2009 decision denying service connection for a low back disorder, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. 3. The RO last denied service connection for a left leg disorder in April 2009 and notified the Veteran of its decision and of his right to appeal it within 1 year thereof in May 2009. The Veteran did not appeal, nor was new and material evidence received within one year of the notification of the decision at the time. 4. Since the final April 2009 decision denying service connection for a left leg disorder, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. 5. The Veteran’s current left leg disorder was not manifest in service or, for arthritis, to a degree of 10 percent within 1 year of separation, and is unrelated to service. 6. Any current right leg disorder was not manifest in service and is unrelated to service. 7. Any current glaucoma was not manifest in service and is unrelated to service. The Veteran’s presbyopia is refractive error of the eye which is not subject to service connection. 8. The Veteran’s only current heart disorder is hypertension which was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 9. The Veteran does not have PTSD. Any current mood or depressive disorder was not manifest in service and is unrelated to service. No compensation can be paid for the Veteran's alcohol and drug abuse or dependence disorders on a direct basis. The Veteran’s intellectual development disorder is a mental deficiency which is not a disease or injury within the meaning of VA compensation law. CONCLUSIONS OF LAW 1. The April 2009 RO decision denying service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim for service connection for a low back disability based on new and material evidence are met. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156 (a). 3. The April 2009 RO decision denying service connection for a left leg disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The criteria to reopen the claim for service connection for a left leg disorder based on new and material evidence are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for a left leg disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for service connection for a right leg disorder are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 7. The criteria for service connection for an eye disorder claimed as glaucoma have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 8. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 9. The criteria for service connection for a psychiatric disorder, to include PTSD, dyslexia, and/or alcohol/drug dependency/drug use have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January to May 1980. He appeals from August 2010 and May 2013 rating decisions denying service connection for the disabilities at issue. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Hypertension is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Prior unappealed RO rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. Applicable 38 C.F.R. § 3.156 provides that new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Service connection for a low back disorder The RO last denied service connection for a low back disability in April 2009 and notified the Veteran of its decision and of his right to appeal it within 1 year in May 2009. No appeal was filed and no new and material evidence was received within 1 year of the May 2009 notice. The Veteran had reported in March 2010 that he got a bad back in service, but this is cumulative of evidence previously considered, rather than new and material evidence. Accordingly, the RO decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The basis of the decision was that new and material evidence with respect to the back disability claim was not shown and there was no competent medical evidence or opinion that related a chronic leg condition to service. Since that decision, new and material evidence has been submitted, including a February 2014 VA examination report. Accordingly, the claim is reopened. As the record needs further development, this issue is being remanded. 2. Service connection for a left leg disorder The RO last denied service connection for a left leg disorder in April 2009 and notified the Veteran of its decision and of his right to appeal it within 1 year in May 2009. No appeal was filed and no new and material evidence was received within 1 year of the May 2009 notice. Accordingly, the RO decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The basis of the decision was that a nexus between in service symptomatology and current left leg disability was not shown. Since that decision, new and material evidence has been submitted, including a February 2014 VA examination report. Accordingly, the claim is reopened. As the RO addressed the claim on the merits in a May 2015 statement of the case, the Board may address the claim on the merits without prejudice to the Veteran. On its merits, the claim should be denied, as the preponderance of the evidence indicates that the Veteran's current left ankle and knee arthritis were not manifest in service or to a degree of 10 percent within 1 year of separation and are unrelated to service. Service treatment records show that the Veteran complained of a pulled left leg muscle from running, in April 1980. At the time, after evaluation, the assessment was myalgia, possible due to injury. Post-service, the Veteran was seen privately for left ankle degenerative joint disease in October 2008. An August 2012 VA medical record shows that he reported having chronic left ankle pain after a fracture in 2002. The 2014 VA examination report noted no signs or symptoms of radicular pain or radiculopathy in the left leg. At the time of a VA examination in February 2014, the Veteran reported a long history of left knee pain and he was also found to have left knee osteoarthritis. The examiner noted that he had had complaints of left leg pain due to a pulled muscle when running, in April 1980. The examiner found that it is less likely than not that the Veteran's current left knee osteoarthritis originated or was incurred in service. The reasons were that since the Veteran's service discharge in May 1980, he had sustained several documented lower extremity injuries, including most recently in 2010 when he jumped over a fence carrying a microwave and landed on concrete. The examiner found that this injury was the likely cause of his current left knee condition with swelling, and that his left ankle disorder was due to this jumping injury also. The Board notes that the in service problem concerned leg muscle, which is soft tissue, whereas the Veteran now has arthritis, which is a disease of hard tissue (the bones in a joint). There is no indication of a chronic muscle disorder currently, and his arthritis was first manifest many years after service and is reportedly due to an injury in 2002. 3. Service connection for a right leg disorder Based on the evidence, the Board concludes that service connection is not warranted for a right leg disorder. The preponderance of the evidence indicates that a right leg disorder was not manifest in service and that the Veteran does not have a current right leg disorder. The 2014 VA examination report noted no signs or symptoms of radicular pain or radiculopathy in the right leg. Service treatment records are silent for reference to right leg problems, and no right leg disorder is currently diagnosed. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). 4. Service connection for an eye disorder claimed as glaucoma Based on the evidence, the Board concludes that service connection is not warranted for an eye disorder claimed as glaucoma. The preponderance of the evidence indicates that an eye disease including glaucoma was not manifest in service. Also, it is unclear that the Veteran has glaucoma currently. It appears that he is glaucoma suspect, which means that he has normal visual fields (not occluded by glaucoma) but with slightly suspicious findings. Even if he has glaucoma, as reported in a September 2011 VA medical record, there is no competent evidence of record that it was manifest in service or is related to service. The possibility of glaucoma was first presented many years after service, and no medical evidence relates it to service. The Veteran has argued that he has glaucoma due to getting metal in his eyes in service. However, service treatment records do not show that he got metal in his eyes (or any eye disorder), and the Veteran is not competent to indicate the origin of his glaucoma, as he lacks the medical training to opine on this complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence does show that the Veteran has presbyopia, but this amounts to refractive error of vision due to aging, and is not considered to be a disability for VA compensation purposes. See 38 C.F.R. § 3.303(c). 5. Service connection for a heart disorder Based on the evidence, the Board concludes that service connection is not warranted for a heart disorder/hypertension. The preponderance of the evidence indicates that the Veteran's only heart disorder -- hypertension -- was not manifest in service or to a degree of 10 percent within 1 year of service and is unrelated to service. Service treatment records, while containing the Veteran's May 1980 report that he has a weak heart and had been feeling bad pains in his upper chest area, do not show hypertension. It was not shown until in or about September 2009, which was many years after service, and no competent evidence of record relates it to service. The evidence indicates that the Veteran had atypical chest pain which resolved in 2011, and a VA examiner considered his history and examined him in February 2014 and found that he has no heart disease and that any cardiac symptoms over the course of the appeal were less likely than not related in any way to his military service. The Veteran indicated in March 2010 that he got a bad heart in service, but he is not competent to indicate this. Medical expertise is necessary to opine on this complex medical matter. Jandreau. 6. Service connection for a psychiatric disorder, to include PTSD, dyslexia, and/or alcohol/drug dependency/drug use. Based on the evidence, the Board concludes that service connection is not warranted for a psychiatric disorder. Service treatment records are silent for reference to a psychiatric disorder. In 1980, after service, psychological testing revealed a personality disorder, which is not a ratable disability for VA compensation purposes, and intellectual functioning limitations. The Veteran claims service connection for PTSD. However, the preponderance of the evidence indicates that he does not have PTSD. A VA examiner examined him in February 2014 and found that he does not have PTSD, stating that he does not meet the diagnostic criteria. In February 2015, the Veteran stated that he has PTSD. However, he is not competent to indicate this. Medical expertise is required. See Jandreau. If the Veteran has a mood or depressive disorder, as suggested by January 2013 and November 2014 VA medical records, there is no competent evidence of record that it was manifest in service or is related to service, and so the preponderance of the evidence is against service connection. The Veteran is shown to have an alcohol/substance use/abuse/dependence disorder, including by the February 2014 VA examination report. However, the provisions of 38 U.S.C. § 1131 indicate that no compensation shall be paid on a direct basis when a disability is a result of the Veteran's own abuse of alcohol or drugs. The Veteran also seeks service connection for dyslexia. The VA examiner in February 2014 diagnosed intellectual disability (intellectual development disorder, which can include dyslexic symptoms such as the Veteran reported in January 2015 that he had in service). This type of mental disorder diagnosis is not a disease or injury within the meaning of VA compensation law, and so it cannot be service connected. See 38 C.F.R. §3.303(c). The Veteran testified in May 2018 that he felt that his disabilities happened in service. However, the preponderance of the evidence is against service connection for the disabilities being denied in this decision. While the Board is unable to grant those benefits, it would like to thank the Veteran for his service, and wishes him well in the future. REMANDED Service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran’s active service started on January 4, 1980. There is no active service entrance examination report of record showing that the Veteran's low back disorder existed prior to active service. Accordingly, the Veteran’s low back is presumed to have been normal on service entrance. A March 1980 service treatment record is the earliest record showing back problems. It reports complaints of back pain for 2 weeks only. Back pain with function was assessed. The Veteran is currently diagnosed with lumbosacral strain/sprain. The VA examiner in February 2014 indicated that it was less likely than not due to the Veteran's complaints of back pain in service because there appeared to have been a fall from a ladder prior to the Veteran's service. However, while the Veteran may have fallen from a ladder prior to service, as history suggests, the evidence is not clear and unmistakable that he had lumbosacral strain or sprain prior to service. Remand is necessary for another VA examination as indicated below. 1. Obtain all outstanding treatment records related to the Veteran’s back, including updated VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his currently diagnosed lumbosacral strain/sprain disability. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's current lumbosacral strain/sprain is related to service, including the manifestations shown in March 1980. The examiner should take as fact that the Veteran’s back was sound at service entrance. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an   explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lawson, Counsel