Citation Nr: 18140119 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-16 903 DATE: October 2, 2018 ORDER The petition to reopen the claim of service connection for a skin disorder is denied. The petition to reopen the claim of service connection for diabetes mellitus is denied. The petition to reopen the claim of service connection for diabetic peripheral neuropathy of the bilateral lower extremities is denied. Service connection for diabetic peripheral neuropathy of the bilateral upper extremities is denied. Service connection for coronary artery disease due to exposure to herbicide agents is denied. Service connection for loss of vision is denied. Service connection for erectile dysfunction is denied. Service connection for vertigo is denied. FINDINGS OF FACT 1. In November 2006, the Veteran filed claims for service connection for a skin disorder, diabetes mellitus, and lower extremity peripheral neuropathy due to exposure to herbicide agents, and these claims were denied in a March 2007 rating decision. 2. The Veteran did not file new and material evidence or a notice of disagreement within one year of the 2007 rating decision and the decision became final. 3. Since the March 2007 rating decision, new and material evidence has not been associated with the claims file that suggests the Veteran was exposed to herbicide agents in service or that the claimed disorders are otherwise related to service. 4. Service connection is not warranted for diabetic peripheral neuropathy of the bilateral upper extremities because it manifested many years after service and was caused by his nonservice-connected diabetes mellitus. 5. The Veteran was not exposed to herbicide agents in service, his coronary artery disease did not manifest in service or shortly after service, and there was no continuity of symptomatology. 6. The Veteran’s vision problems, to include legal blindness and retinopathy, manifested many years after separation from service and are caused by his nonservice-connected diabetes mellitus. 7. The Veteran’s erectile dysfunction manifested many years after separation from service and is caused by his nonservice-connected diabetes mellitus. 8. The Veteran’s vertigo manifested many years after separation from service and is otherwise unrelated to service. CONCLUSIONS OF LAW 1. The March 2007 rating decision denying the claims of service connection for a skin disorder, diabetes mellitus, and bilateral lower extremity peripheral neuropathy is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100 (2017). 2. The criteria to reopen the claim of service connection for a skin disorder have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to reopen the claim of service connection for diabetes mellitus have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria to reopen the claim of service connection for diabetic peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for diabetic peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 6. The criteria for service connection for coronary artery disease due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1110, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for loss of vision have not been met. 38 U.S.C. §§ 1110, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 8. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 9. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. The petitions to reopen the claims of service connection for a skin condition, diabetes mellitus, and diabetic peripheral neuropathy of the bilateral lower extremities are denied. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105(c) (West 2014); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100, 20.1103, 20.1104 (2015). If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. See id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; 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, 117-120 (2010). The RO denied service connection for a skin disorder, diabetes mellitus, and lower extremity peripheral neuropathy in March 2007 because the evidence did not show that the Veteran was exposed to herbicide agents in service or that the disorders began in or were otherwise related to service. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At that time, the evidence included the Veteran’s statements, service treatment records, a service department memorandum finding no record of herbicide agent exposure or service in the Republic of Vietnam, and VA medical records. His service records showed that he had active duty service from May 18, 1965 to February 20, 1967. However, in-service exposure to herbicide agents is presumed for a veteran who served in a unit determined to have operated in or near an area of the Korean demilitarized zone where herbicides are known to have been applied between April 1, 1968, and August 31, 1971. 38 C.F.R. § 3.307(a). The Veteran’s service ended prior to this time period. The Veteran filed petitions to reopen these claims in April 2012. The only new evidence received includes VA medical records, the Veteran’s translated February 2016 statement, and his hearing testimony, none of which constitute new evidence suggesting the Veteran was exposed to herbicide agents in service. Specifically, the Veteran contends that he was exposed to herbicide agents while serving in the Korean demilitarized zone as a cook. The Veteran did not serve in the Korean demilitarized zone during the requisite period for presumed exposure to herbicide agents and he has not submitted new and competent evidence that reasonably suggests he was exposed. While he stated in February 2016 that “we spent long hours exposed to herbicides under the sun and at times in the rain,” his statement alone is not competent evidence of herbicide agent exposure. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence to establish that such an event occurred during service). He testified that his service took him to or near the Korean demilitarized zone. However, since his service concluded prior to the time period where VA presumes herbicide use in that area, he would have to submit evidence that factually shows he was exposed to herbicides. He has not. Accordingly, his petitions to reopen the claims of service connection for a skin disorder, diabetes mellitus, and lower extremity peripheral neuropathy are denied. The Veteran also testified during the Board hearing that his skin “itched” during service. To the extent he is claiming his skin disorder began in service, this does not constitute new and material evidence sufficient to reopen his claim. The RO denied his initial service connection claim because there was no evidence he was exposed to herbicide agents in service and there was no evidence his psoriasis began in service. As the Veteran has not provided new and material evidence to support his claim that it began in service, the petition to reopen the claim of service connection for a skin disorder remains denied. 2. Service connection for diabetic peripheral neuropathy of the bilateral upper extremities is denied. The Veteran seeks service connection for his upper extremity peripheral neuropathy. His service treatment records are negative for relevant complaints and diagnoses and he was not diagnosed until August 2012, at which time a VA examiner diagnosed him with diabetic peripheral neuropathy. His VA medical records similarly show treatment for diabetic neuropathy. Because the evidence shows that his upper extremity peripheral neuropathy manifested many years after service and is caused by his nonservice-connected diabetes, service connection is not warranted and the claim is denied. 3. Service connection for coronary artery disease due to exposure to herbicide agents is denied. The Veteran seeks service connection for his coronary artery disease solely based on exposure to herbicide agents in service. Specifically, the Veteran contends that he was exposed to herbicide agents while serving in the Korean demilitarized zone as a cook. His service records and testimony show, however, that he only had active duty service from May 18, 1965 to February 20, 1967. In-service exposure to herbicide agents is presumed for a veteran who served in a unit determined to have operated in or near an area of the Korean demilitarized zone where herbicides are known to have been applied between April 1, 1968, and August 31, 1971. See 38 C.F.R. § 3.307(a). Thus, the Veteran did not serve in the Korean demilitarized zone during the requisite period for presumed exposure to herbicide agents and VA issued a memorandum in February 2007 stating there is no record of herbicide agent exposure or service in the Republic of Vietnam for the Veteran. Further, the Veteran has not submitted evidence that competently suggests he was otherwise exposed to herbicide agents in service. While he stated in February 2016 that “we spent long hours exposed to herbicides under the sun and at times in the rain,” his statement alone is not competent evidence of herbicide agent exposure. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence to establish that such an event occurred during service). As noted above, since his service concluded prior to the time period where VA presumes herbicide use in the Korean demilitarized zone, he would have to submit evidence that factually shows he was exposed to herbicides. He has not done so. Finally, the Veteran’s service treatment and separation records are negative for heart disease and post-service medical records show that he was diagnosed with coronary artery disease in 2008, more than 40 years after separation from service. Accordingly, he is not entitled to presumptive service connection afforded to chronic diseases under 38 C.F.R. § 3.309 because there is no evidence of the disease in service, shortly after service, or a continuity of symptomatology from service to diagnosis. Because there is no evidence of exposure to herbicide agents and his coronary artery disease manifested many years after separation from service, the claim is denied. 4. Service connection for loss of vision is denied. The Veteran seeks service connection for loss of vision. The Board finds, however, that his vision loss manifested many years after separation from service and is caused by his nonservice-connected diabetes. The Veteran’s service records are negative for vision problems, and his separation reports of medical history and examination do not document vision problems. In November 1999, he filed for nonservice-connected pension based on diabetes and loss of vision, and he was afforded a general medical examination to assess his current condition. It was noted that he was diagnosed with diabetes and diabetic retinopathy in 1996 following an ophthalmology examination. He was also afforded a VA eye examination in November 1999 and he was diagnosed with proliferative diabetic retinopathy only. He was granted entitlement to nonservice-connected pension in March 2000. He was afforded a second VA eye examination in October 2006, during which he complained of poor left eye vision beginning in approximately 2001. After examination, he was diagnosed with refractive error (hypermetropia, astigmatism, and presbyopia), profound left eye visual imparity, bilateral senile cataracts, combined senile/diabetic bilateral cataracts, proliferative diabetic retinopathy inactive, and legal blindness. The examiner opined that his loss of vision, including cataracts, was caused by his diabetes mellitus. Another VA examination was scheduled for August 2012 but the report documents that it was canceled. VA medical records from 2012 show, however, that he was being treated for legal blindness and proliferative diabetic retinopathy. The Board finds that the evidence overwhelmingly shows that his vision problems, to include retinopathy and legal blindness, manifested many years after service and are caused by his nonservice-connected diabetes. Importantly, the Veteran did not argue an alternative basis for service connection during the Board hearing. Accordingly, service connection is not warranted and the claim is denied. 5. Service connection for erectile dysfunction is denied. The Veteran seeks service connection for erectile dysfunction. The Board finds, however, that his erectile dysfunction manifested many years after separation from service and is caused by his nonservice-connected diabetes. The Veteran’s service records are negative for erectile dysfunction, including his separation reports of medical history and examination, and he did not report experiencing erectile dysfunction until approximately 2009. He was afforded a VA examination in August 2012 to assess his erectile dysfunction, at which time the examiner concluded it was caused by his diabetes mellitus. The Veteran testified during his Board hearing that he began experiencing erectile dysfunction after incurring a sexually transmitted disease in service. While records show that he was treated for gonorrhea in June 1966, the records do not show subsequent treatment for gonorrhea or complaints of erectile dysfunction, and the separation examination and report of medical history were negative for relevant complaints. Moreover, his testimony regarding onset conflicts with his statements made to the August 2012 examiner that the condition began in 2009. The Board thus finds that the Veteran’s testimony regarding onset in service is not credible. The Board further finds that his service treatment records, statements made to the August 2012 VA examiner, and the VA examiner’s opinion are probative in determining whether erectile dysfunction began in service and the etiology of his erectile dysfunction. As the weight of the evidence shows it did not begin in service and is related to his nonservice-connected diabetes, service connection is not warranted and the claim is denied. 6. Service connection for vertigo is denied. The Veteran seeks service connection for vertigo. The Board finds, however, that his vertigo manifested many years after separation from service and is otherwise unrelated to service. The Veteran’s service treatment records are negative for complaints of dizziness or vertigo, his separation examination was normal, and he denied dizziness or fainting spells on his separation report of medical history. Importantly, the claims file first shows complaints of dizziness in December 1999 during a VA general medical examination, but he was not diagnosed with vertigo at that time. The claims file does not document vertigo until an October 2006 VA aid and attendance examination, at which time and examiner noted that the Veteran experiences occasional vertigo episodes. Further, VA medical records associated with the claims file show that the Veteran’s complaints of dizziness are addressed during cardiology visits as symptoms of his cardiovascular disorders. For example, in June and July 2011, during a description of relevant symptomatology, it was noted that the Veteran “referred orthostatic hypotension and frequent dizziness upon waking.” The Veteran testified during his Board hearing that he began experiencing vertigo in service. The Board finds, however, that this testimony is outweighed by the contemporaneous service treatment records that do not show treatment for vertigo and the Veteran’s report of medical history in which he denied experiencing dizziness. His contentions are further outweighed by current medical records which document complaints of dizziness or vertigo many years after separation from service and do not otherwise relate his disorder to service. On his VA Form 9, the Veteran suggested his vertigo was the result of acoustic trauma from exposure to concussions from canons firing. First, as a cook, there is nothing to suggest any such acoustic trauma would have been consistent with his MOS. Second, there is no suggestion in the medical evidence that his vertigo is due to acoustic trauma, and his opinion on this matter is not competent evidence. As the weight of the evidence shows it did not begin in service, began many years after service, and is otherwise not related to service, an examination was not warranted and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel