Citation Nr: 18144096 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 18-04 516 DATE: October 23, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus, type II, is denied. REMANDED Entitlement to a compensable rating for left little finger contracture of proximal interphalangeal (PIP) joint is remanded. Entitlement to an initial rating in excess of 10 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. In a final rating decision issued in June 2006, the Agency of Original Jurisdiction (AOJ) denied service connection for hypertension as secondary to service-connected diabetes mellitus, type II. 2. Evidence associated with the record since the final June 2006 denial is cumulative or redundant of the evidence of record at the time of the rating decision and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied service connection for hypertension as secondary to service-connected diabetes mellitus, type II, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005) [(2017)]. 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970 and from January 1991 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2016 by a Department of Veterans Affairs (VA) Regional Office. While additional evidence was associated with the record after the issuance of the November 2017 statement of the case, such is irrelevant to the instant matters. 38 C.F.R. 20.1304(c). Therefore, there is no prejudice to the Veteran in the Board proceeding with the adjudication of such claims at this time. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension secondary to service-connected diabetes mellitus, type II. By way of background, in a June 2006 rating decision, the AOJ considered the evidence of record, to specifically include an August 2005 VA examination, denied service connection for hypertension as secondary to service-connected diabetes mellitus, type II. Specifically, the AOJ found that the evidence did not show that hypertension was related to the Veteran’s service-connected diabetes mellitus, type II, or his military service. In this regard, it was noted that the August 2005 VA examiner found that the Veteran’s arterial hypertension was not likely related to his diabetes mellitus, type II, because there was no evidence of proteinuria. Later that month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement. Additionally, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. In this regard, while additional service treatment and personnel records were associated with the record subsequent to the issuance of the June 2006 rating decision, such are irrelevant to the Veteran’s claim as they do not show any findings referable to a diagnosis of hypertension. Therefore, the June 2006 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this regard, VA received the Veteran’s application to reopen his previously denied claim for service connection for hypertension in September 2015. At such time, he claimed service connection for such disorder solely on the basis that such is secondary to his diabetes mellitus, type II. Furthermore, at no time pertinent to the pendency of his claim has he offered, nor has the newly received evidence raised, an alternate theory of entitlement. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). Since the issuance of the June 2006 rating decision, additional evidence consisting of VA treatment records, VA examination reports, and lay statements has been received. In this regard, VA treatment records reflect a diagnosis of hypertension; however, such fact was previously of record at the time of the prior decision. Similarly, the lay statements reflect the Veteran’s continuing belief that his hypertension is related to his diabetes mellitus, type II, which are duplicative of the statements of record at the time of the June 2006 rating decision. Furthermore, the VA examiners have uniformly found that the Veteran’s hypertension is not a complication of, or caused or aggravated by, his diabetes mellitus, type II, and there is no medical opinion to the contrary. Therefore, the Board finds the evidence associated with the record since the final June 2006 denial is cumulative or redundant of the evidence of record at the time of the rating decision and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus, type II. Consequently, new and material evidence has not been received to reopen the claim. REASONS FOR REMAND 2. Entitlement to a compensable rating for left little finger contracture of PIP joint. 3. Entitlement to an initial rating in excess of 10 percent for left upper extremity peripheral neuropathy. 4. Entitlement to an initial rating in excess of 10 percent for right upper extremity peripheral neuropathy. 5. Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy. 6. Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy. The Board observes that VA last examined the Veteran in October 2015 for his service-connected left little finger disability and in September 2017 for his service-connected peripheral neuropathy of the bilateral upper and lower extremities. In his January 2018 substantive appeal, the Veteran asserted that his conditions had worsened, and he requested new examinations to determine the current severity of such disabilities. In a September 2018 Appellant’s Brief, his representative argued the respective VA examiners did not adequately assess the severity of the Veteran’s service-connected disabilities. Therefore, as the evidence suggests the Veteran’s associated symptomatology may have increased in severity since the VA examinations, remand is necessary to schedule him for appropriate VA examinations to assess the current nature and severity of the service-connected disabilities on appeal herein. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Further, with regard to the Veteran’s left little finger disability, the examination should be conducted in compliance with the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following actions: 1. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected left little finger contracture or proximal interphalangeal joint. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s service-connected left little finger disability. (B) The examiner should record the range of motion of the left little finger observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his left little finger, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. (E) Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should also comment upon the functional impairment resulting from the Veteran’s left little finger disability. All opinions expressed must be accompanied by supporting rationale. 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected peripheral neuropathy of the bilateral upper and lower extremities. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. For all extremities, the examiner should identify the nature and severity of all manifestations of the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities, to include any neurological impairment and/or resulting limitation of motion. The examiner should indicate whether such disabilities more nearly approximate mild, moderate, or severe incomplete paralysis or complete paralysis of the nerves involved, previously identified as the median nerve and sciatic nerve, respectively. The examiner also should specifically indicate whether the Veteran has foot drop in either lower extremity. The examiner should also comment upon the functional impairment resulting from the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities. All opinions expressed must be accompanied by supporting rationale. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel