Citation Nr: 18143035 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-26 093 DATE: October 18, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for arthritis of the back and arms is denied. Service connection for a muscle disorder of the legs, arms, and back is denied. Service connection for a respiratory disorder is denied. Service connection for diabetes mellitus is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran served on active duty from October 1980 to May 1982. 2. A final January 1983 rating decision denied a service connection claim for arthritis; evidence received since that time does not raise a reasonable possibility of substantiating the claim. 3. The Veteran has not been diagnosed with a muscle disorder during the pendency of this appeal. 4. A respiratory disorder, diabetes mellitus, and hypertension were not caused by or permanently worsened in severity by service-connected posttraumatic stress disorder (PTSD) and were not diagnosed within one year of service separation. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for arthritis of the back and arms. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. A muscle disorder of the legs, arms, and back has not been shown. 38 U.S.C. §§ 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). 3. A respiratory disorder is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 4. Diabetes mellitus is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 5. Hypertension is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedurally, the Veteran testified during a July 2018 travel board hearing. A transcript of this proceeding has been associated with the record. Reopen Claim Based on New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, this claim was denied in a January 1983 rating decision. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period. Accordingly, the January 1983 rating decision became final. The Veteran subsequently requested to reopen the claim. The Board must now determine whether new and material evidence has been submitted since the January 1983 rating decision sufficient to reopen the claim. In this respect, evidence considered at the time of the January 1983 rating decision included service treatment records (STRs), a July 1982 VA general examination, and August 1982 VA treatment records. Evidence added to the claims file since that time includes additional STRs, service personnel records, VA treatment records through February 2015, private treatment records, multiple lay statements, a May 2015 VA arthritis examination, and July 2018 hearing testimony. This evidence is new as it was not of record at the time of the final January 1983 rating decision. However, this new evidence does not raise a reasonable possibility of substantiating the claim. First, a May 2015 VA examiner concluded that no nexus between service and arthritis was present but rather attributed arthritis to age-related factors. This evidence does not support reopening. Additionally, extensive VA and private treatment records do not offer an etiology of the Veteran’s arthritis. Thus, the only evidence tending to support the claim is the Veteran’s July 2018 hearing testimony and other lay statements. However, she lacks the medical expertise to provide a competent opinion regarding the etiology of her arthritis. Thus, taken in combination, the newly submitted evidence does not raise a reasonable possibility of substantiating the claim. As the evidence is not both new and material, the application to reopen the claim for arthritis is denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Muscle Disorder First, the Veteran is pursuing service connection for a muscle disorder. As she has not offered a theory of secondary service connection nor is such a theory supported by the record, the Board will limit its analysis accordingly. Here, the record does not indicate that the Veteran has been diagnosed with a muscle disorder at any time during the pendency of this appeal. Specifically, VA and private treatment records are silent for a diagnosis associated with the reported muscle pain. Moreover, a May 2015 VA examiner did not diagnose a muscle disorder but instead attributed her symptoms to arthritic conditions. Thus, the medical evidence does not support the claim. Respiratory, Diabetes, and Hypertension The Veteran is also seeking service connection for a respiratory disorder, diabetes mellitus, and hypertension on the basis that these disorders are causally related to her service-connected PTSD. As above, the Board will limit its analysis accordingly. Here, VA treatment records reflect active diagnoses of obstructive sleep apnea, diabetes mellitus, and hypertension. Ongoing treatment for these conditions, including the use of a CPAP machine and various oral medications, is also noted throughout these records. Thus, the first element of secondary service connection—a current disorder—has been met. Next, the Veteran is currently service-connected for PTSD, such that the second element of secondary service connection—a service-connected disability—has also been met. Accordingly, the appeals may be granted upon evidence of a causal link between the Veteran’s non- and service-connected disorders. However, the medical evidence does not support such a finding. Instead, extensive VA and private treatment records are silent for such a link with respect to these appeals. Moreover, a March 2009 private evaluation indicated no nexus between the Veteran’s psychiatric symptoms and treatment and the claimed diabetes and hypertension. In this respect, a private physician noted a history of sleep disturbances; however, this symptom was attributed to the Veteran’s psychiatric disability and not to any secondary disorder of obstructive sleep apnea. Additionally, sleep impairment is a symptom contemplated in the 70 percent rating currently assigned to the Veteran for her service-connected PTSD. Thus, the only evidence indicative of a link is the personal testimony offered by the Veteran. However, she lacks the medical expertise to offer a competent opinion regarding the etiology of her respiratory disorder, diabetes, and hypertension. See Layno, 6 Vet. App. at 469. Accordingly, greater probative value is offered to the medical evidence of record, which establishes no nexus in this case. Therefore, the evidence does not support the claims for secondary service connection, and the appeals are denied. The Board has also considered the application of presumptive service connection to the diabetes and hypertension appeals. However, the evidence, to include a July 1982 VA examination, does not establish that the Veteran’s disorders were diagnosed within one year of her separation from service. As such, presumptive service connection is not warranted. The Board further acknowledges the Veteran’s request for VA examinations in connection with these appeals. Although the record establishes the existence of the claimed disorders, there is no evidence to suggest that they are related to PTSD and related treatment other than her own testimony. As noted above, she lacks the requisite training and expertise to offer competent evidence regarding the etiology of the claimed disorders. As such, her assertions alone do not warrant the need for VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board has considered the Veteran’s lay statements that her disorders were was caused by service. She is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not competent to offer an opinion as to the etiology of her currents due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Additionally, the Board has considered the Veteran’s testimony regarding ongoing muscle pain. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). However, the reported pain appears to be attributable to unrelated arthritic disorders and their associated joint pain rather than to current muscle conditions, as per the May 2015 VA examiner. As such, the evidence does not demonstrate functional impairment due to muscle pain so as to warrant the finding of a current disability in this case. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to her statements. As the preponderance of the evidence weighs against the claims, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel