Citation Nr: 18144719 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-17 618 DATE: October 25, 2018 ORDER New and material evidence has been received, the claim for entitlement to service connection for coronary artery disease (previously claimed as arteriosclerosis), now claimed as enlargement of the heart, is reopened. New and material evidence has not been received to reopen the claim for entitlement to service connection for hypertension. Entitlement to service connection for coronary artery disease, claimed as enlargement of the heart is denied. Entitlement to service connection for mature cataract (claimed as blurring of vision), now claimed as loss of eyesight, is denied. Entitlement to service connection for diabetes mellitus, type 2 is denied. Entitlement to service connection for residuals of a hernia operation is denied. FINDINGS OF FACT 1. In a February 2002 rating decision, the RO denied entitlement to service connection for arteriosclerosis. 2. The evidence received since the prior denial is not cumulative or redundant of the evidence of record at the time of the prior denial and does establish a fact necessary for entitlement to service connection for coronary artery disease (previously claimed as arteriosclerosis), now claimed as enlargement of the heart. 3. In a February 2002 rating decision, the RO denied entitlement to service connection for hypertension. 4. The evidence received since the prior final denial is cumulative or redundant of the evidence of record at the time of the prior denial and does not establish a fact necessary for entitlement to service connection for hypertension. 5. The weight of the evidence is against the finding that the Veteran’s coronary artery disease (previously claimed as arteriosclerosis), now claimed as enlargement of the heart, either began during, was manifest within one year after discharge from active service or was otherwise caused by his military service. 6. The weight of the evidence is against the finding that the Veteran’s mature cataract (claimed as blurring of vision), now claimed as loss of eyesight, either began during or was otherwise caused by his military service. 7. The weight of the evidence is against a finding that the Veteran’s diabetes mellitus, type 2 either began during service, was manifest within one year after disability from active service or was otherwise caused by his military service. 8. Disability manifested by residuals of a post-service hernia operation did not have its onset in service and is not otherwise related to service. CONCLUSIONS OF LAW 9. The February 2002 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.110 (2017). 10. New and material evidence has been received to reopen the claim of service connection for coronary artery disease (previously claimed arteriosclerosis), now claimed as enlargement of the heart. 38 U.S.C. 5108 (2012); 38 C.F.R. 3.156 (2017). 11. New and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 12. The criteria for service connection for coronary artery disease have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 13. The criteria for service connection for mature cataract have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 14. The criteria for service connection for diabetes mellitus, type 2 have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 15. The criteria for service connection for residuals of hernia operation have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1968 to August 1968. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2016 statement that was submitted in May 2016, the Veteran withdrew his Board hearing request. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (e) (2017). 1. Claims to Reopen previously denied claims of entitlement to service connection for coronary artery disease and hypertension Legal Criteria Where a service connection claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C. § 5108. The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal regardless of the RO’s determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). VA regulations define “new” evidence 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 cannot be cumulative or redundant and must raise a reasonable possibility of substantiating the claim. Id. If new and material evidence is received prior to the expiration of the appeal period following a particular rating decision, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). A. Coronary Artery Disease/Arteriosclerosis/Enlargement of the Heart The Board finds that the Veteran has submitted new and material evidence to warrant the reopening his previously denied claim for service connection for coronary artery disease (previously claimed arteriosclerosis), now claimed as enlargement of the heart. In a February 2002 rating decision, the RO denied the claim for entitlement to service connection for arteriosclerosis. The RO found that the Veteran did not have a definite diagnosis of arteriosclerosis. Also, the RO found that the Veteran did not have a condition that existed at that present time that was possibly related to his military service. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the February 2002 rating decision became final. Evidence of record at the time of the February 2002 rating decision included the following: service personnel records; the Veteran’s service treatment records (STRs) showing no treatment, complaints, or diagnosis of a heart condition; an October 2001 VA examination report revealing that the Veteran did not have a diagnosis of arteriosclerosis; and the Veteran’s lay statements indicating that his arteriosclerosis was related to his military service. Since the previous denial, the evidence submitted includes an additional August 2002 VA examination report, showing a finding of arteriosclerotic cardiovascular disease; an April 20014 letter from Dr. A.S.D.V., indicating that the Veteran was diagnosed with coronary artery disease; and the Veteran’s lay statement indicating that his heart condition was related to his military service. The evidence received since the final rating decision provided new evidence indicating that the Veteran had a current heart disability. The Board is not conducting an assessment of the probative value of the new lay and medical evidence. Nevertheless, it can be fairly said that the new evidence tends to support elements of the claims necessary for a service connection finding. Further, for the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Thus, assuming its credibility for the purpose of this analysis, the Board finds that the new evidence tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for coronary artery disease (previously claimed as arteriosclerosis), now claimed as enlargement of the heart. Shade v. Shinseki, 24 Vet. App. 110 (2010). The newly received evidence raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim of entitlement to service connection for coronary artery disease (previously claimed as arteriosclerosis), now claimed as enlargement of the heart, is reopened. The issue of entitlement to service connection for coronary artery disease will be addressed below. B. Hypertension The Board finds that the Veteran has not submitted new and material evidence to warrant reopening his previously denied claim for entitlement to service connection for hypertension. In a February 2002 rating decision, the RO denied the claim for entitlement to service connection for hypertension. The RO found that the Veteran’s hypertension was not incurred in or aggravated by his military service. The RO indicated that the evidence of record did not establish a link between his hypertension to an event, injury, or illness to his military service. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the February 2002 rating decision became final. Evidence of record at the time of the February 2002 rating decision included the following: service personnel records; the Veteran’s STRs showing no treatment, complaints, or diagnosis of hypertension; an October 2001 VA examination report noting a history of hypertension diagnosed in 1993, and the Veteran’s blood pressure readings; a November 2001 letter from Dr. M.T. indicating that the Veteran was diagnosed with hypertension and was treated for this condition since January 20, 1995; and the Veteran’s lay statements indicating that his hypertension was related to his military service. Since the previous denial, the Veteran has submitted evidence to include an August 2002 VA examination report, showing a finding of hypertension; and an April 2014 letter from Dr. A.S.D.V., indicating that the Veteran was diagnosed with hypertension. Although this evidence is new it is not material to establish a fact necessary for the claim for entitlement to service connection. The evidence is cumulative and redundant of facts already established. The evidence indicates a diagnosis of hypertension, a fact which was previously considered. The Veteran’s assertion that hypertension is related to service is also cumulative. The new evidence does not establish a fact necessary to link the Veteran’s hypertension to his military service. Therefore, the Board finds that although this evidence is new, it is cumulative and it is not material. Accordingly, the Board concludes that new and material evidence has not been presented. Therefore, the claim may not be reopened. II. Service Connection Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with diabetes mellitus and cardiovascular-renal disease by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. No VA examination was requested in relation to the issues of service connection for coronary artery disease (previously claimed as arteriosclerosis), now claimed as enlargement of the heart, mature cataract (loss of vision), diabetes mellitus, type 2 (diabetes mellitus), and residuals of hernia operation. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d) and 38 C.F.R. § 3.159 (c)(4). The third factor is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claims for coronary artery disease (previously claimed and rated as arteriosclerosis), now claimed as enlargement of the heart, mature cataract (loss of vision), diabetes mellitus, and residuals of hernia operation. See 38 U.S.C. § 5103A (a). The weight of evidence is against a finding that for coronary artery disease, mature cataract (loss of vision), diabetes mellitus, and disability manifested by residuals of hernia operation had their onset in service or within one year of separation from active service or that the disabilities may be associated with service. Beyond the Veteran’s statements, no evidence is of record to suggest that the claimed disabilities, which were diagnosed years after service, either began during or was otherwise caused by his active service. As such, element (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred during service are absent. The U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274(Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case These statements alone are insufficient to trigger VA’s duty to provide an examination. Therefore, VA has no duty to provide a VA examination or obtain an opinion. A. Coronary Artery Disease/Arteriosclerosis/Enlargement of the Heart In the March 2014 claim, the Veteran asserts that he had heart problems that were related to his military service. The Veteran’s STRs donot contain any complaints, treatment, or diagnosis of a heart condition. On November 1967 enlistment examination, the Veteran had a normal clinical evaluation. The Veteran wrote that he was in excellent health. Post-service treatment records documented that the Veteran was diagnosed in 2002 with arteriosclerotic cardiovascular disease. An August 2002 VA examination report documented the findings of arteriosclerotic cardiovascular disease. An April 2014 letter from Dr. A.F.C.S indicated that the Veteran was diagnosed and treated for coronary artery disease. As noted, there is no evidence of an in-service diagnosis of a heart condition nor evidence demonstrating that his heart condition manifested to a compensable degree within one year following separation from active service. As such, a continuity of symptomatology of a heart condition is not shown. Thus, there is no basis for service connection. The Board has considered the Veteran’s contentions that his current heart condition is related to his period of active service. However, as to the specific issue in this case, the etiology of the Veteran’s heart condition falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A heart condition is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). B. Mature Cataract/ Loss of Vision/Blurred Vision In the March 2014 claim, the Veteran asserts that he had blurred vision claimed as mature cataract that was related to his military service. The Veteran’s STRs do not contain any complaints, treatment, or diagnosis of an eye condition. On November 1967 enlistment examination, the Veteran had a normal clinical evaluation. The examiner indicated that the Veteran had normal eyes and assessed the Veteran with normal vision. The Veteran wrote that he was in excellent health. Post-service treatment records documented that the Veteran was treated in 2013 for complaints of blurred vision. A May 2014 letter from Dr. A.F.C.S indicated that the Veteran was seen in April 2013 and November 2013. The Veteran complained of blurred vision and was diagnosed with mature cataract. A May 2015 S. Eye Clinic document, indicated that the Veteran had cataract surgery performed in January 2015 and February 2015. As noted, there is no evidence of an in-service diagnosis of an eye condition and no competent or probative evidence demonstrating that an eye condition had its onset in service or is related to service. The Board has considered the Veteran’s contentions that his current mature cataract/ loss of vision/ blurred vision is related to his period of active service. However, as to the specific issue in this case, the etiology of the Veteran’s mature cataract/ loss of vision falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Mature cataract disability is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the preponderance of the evidence is against the claim and it must be denied. C. Diabetes Mellitus, Type 2 In the Veteran’s March 2014 claim, the Veteran asserts that his diabetes mellitus is related to his active service. The Veteran’s STRs do not contain any complaints, treatment, or diagnosis of diabetes. On November 1967 enlistment examination, the Veteran had a normal clinical evaluation. The examiner noted that lab testing was negative for sugar. The Veteran wrote that he was in excellent health. Post-service treatment records revealed that the Veteran was treated since 2012 for his condition. An April 2014 letter from Dr. A.S.D.V. indicated the Veteran was a patient of his since September 15, 2012. Dr. A.S.D.V. wrote that the Veteran was diagnosed and treated for diabetes mellitus. As noted, there is no evidence of an in-service diagnosis of diabetes mellitus and no evidence demonstrating that his diabetes mellitus manifested to a compensable degree within one year following separation from active service. As such, a continuity of symptomatology of diabetes mellitus is not shown. Thus, there is no basis for service connection. Consideration has been given to the Veteran’s assertion that his diabetes mellitus is due to his service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of diabetes, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Diabetes mellitus, type 2 is not the type of condition that is readily amenable to lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations, that include objective medical testing such as blood glucose tests, are needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly, the criteria for service connection have not been met for diabetes mellitus, type 2. Therefore, the claim is denied. D. Residuals of Hernia Operation In July 2015, the Veteran filed a claim for residuals of a hernia operation. The Veteran’s STRs are negative for any findings that indicate that the Veteran suffered from any symptoms or manifestations of a hernia. There is no indication of a hernia operation in the STRs. Post-service treatment records revealed that the Veteran had a mesh herniorrhaphy procedure in January 2015. A January 2015 B.F.D.G. Hospital treatment record documented that the Veteran was admitted on January 27, 2015 due to inguinal pain. The Veteran underwent a herniorrhaphy and stayed at the hospital for 3 days. The Veteran was discharged on January 29, 2015. The Veteran had a mesh herniorrhaphy procedure done and was diagnosed with an indirect inguinal hernia, reducible. The evidence of record indicates that the Veteran underwent a hernia operation after service in 2015. The Veteran has not submitted any medical evidence that would suggest that he now suffers from the residuals of a hernia that is etiologically related to his military service. As noted, the Veteran’s STRs do not demonstrate that the Veteran began suffering from symptoms indicative of a hernia while he was on active duty. It was not until many years later evidence demonstrates that the Veteran is diagnosed with an inguinal hernia. The Veteran is not competent to provide an opinion as the etiology of a disability manifested by residuals of a hernia operation falls outside the realm of common knowledge of a lay person. Thus, the Board finds that service connection for the residuals of a hernia operations is not warranted, because the weight of the most probative evidence of record is against such a finding. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel