Citation Nr: 18146124 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-35 538 DATE: October 30, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for glaucoma is granted. Entitlement to service connection for glaucoma is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for diabetes mellitus type II (diabetes) is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In an unappealed February 1998 rating decision, the RO denied service connection for glaucoma because the evidence failed to demonstrate that the Veteran suffered from glaucoma. 2. Evidence received since the February 1998 rating decision includes information that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for glaucoma. 3. The Veteran failed to appear for an October 2016 VA examination to assess the nature and cause of his glaucoma. 4. The preponderance of the evidence indicates that the Veteran does not suffer from a right hip disability due to his service. 5. The preponderance of the evidence indicates that the Veteran does not suffer from diabetes due to his service. 6. The preponderance of the evidence indicates that the Veteran does not suffer from bilateral lower extremity peripheral neuropathy due to his service. CONCLUSIONS OF LAW 1. The February 1998 rating decision that denied service connection for glaucoma became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received after the February 1998 rating decision is new and material to reopen the claim of entitlement to service connection for glaucoma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Entitlement to service connection for glaucoma is denied. 38 C.F.R. § 3.655. 4. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for bilateral lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to August 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 rating decision. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to the duty to assist). The application to reopen the previously denied claim of entitlement to service connection for glaucoma is granted. The Board is required to determine whether new and material evidence has been received before it may reopen a claim. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, VA shall reopen and review an adjudicated claim when a veteran submits new and material evidence that raises a reasonable possibility of substantiating the adjudicated claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the veteran’s claim. 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 (2010). The Regional Office (RO) with prior jurisdiction over the Veteran’s claim denied service connection for glaucoma in a February 1998 rating decision because the evidence of record failed to demonstrate that the Veteran suffered from glaucoma. The record reveals that the Veteran did not appeal the February 1998 rating decision, and the rating decision became final. In April 2014, the Veteran filed an application to reopen the previously denied claim of entitlement to service connection for glaucoma. In August 2014, the RO declined to reopen the Veteran’s glaucoma claim for lack of new and material evidence. The August 2014 denial is now before the Board for adjudication. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; Young v. Shinseki, 22 Vet. App. 461, 468 (2011). The additional evidence received since the February 1998 rating decision includes VA treatment records. These treatment records describe the Veteran as suffering from glaucoma. This evidence is new because it was not previously of record. The Board finds that this new evidence is also material because it raises a reasonable possibility of substantiating the Veteran’s claim. Therefore, this new and material evidence is sufficient to reopen the previously denied claim of entitlement to service connection for glaucoma. See 38 C.F.R. § 3.156. Service Connection Claims Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Service connection on a secondary basis requires evidence of a current disability and evidence that the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for glaucoma is denied. The Veteran contends that he suffers from glaucoma as a result of his service. Unfortunately, the Board must deny the Veteran’s claim as a matter of law. Under 38 C.F.R. § 3.655, when a claimant does not report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). In this case, the claim on appeal is not an original claim for compensation as contemplated by C.F.R. § 3.655. Rather, the claim on appeal is a reopened claim. See 38 C.F.R. § 3.160(b). An October 2016 VA Compensation and Pension Exam Inquiry indicates that the RO scheduled the Veteran for a VA examination to assess the nature and cause of his glaucoma, following the Veteran’s April 2014 application to reopen the previously denied claim of entitlement to service connection for glaucoma. The Veteran did not attend the scheduled examination. A VA examination was necessary to determine the nature and cause of the Veteran’s glaucoma. He was scheduled for an examination, did not appear, and has not provided good cause for his failure to appear of the examination. Under 38 C.F.R. § 3.655, the Board must deny the Veteran’s claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Entitlement to service connection for a right hip condition is denied. The Veteran contends that he suffers from a right hip condition as a result of his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran does suffer from a right hip disability, the preponderance of the evidence does not indicate that the Veteran suffers from a right hip disability that began during service or is otherwise related to an in-service injury, event, or disease. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records do not note the Veteran as suffering from a right hip disability or right hip symptomatology during his service. VA treatment records show that the Veteran fractured his right femur in or about 2011, and that he underwent surgery for a “[t]itanium rod placement []from his R hip to his knee[.]” The medical evidence of record reveals that his right hip disability was diagnosed following a “[m]echanical fall,” which occurred decades after his separation from service. The record indicates that the Veteran did not receive a VA examination to determine the nature and cause of his right hip disability. VA’s duty to assist requires that it provide an examination or obtain a medical opinion if the information and evidence of record does not contain sufficient medical evidence to decide the claim, but contains: competent lay or medical evidence of a current disability; establishes that the Veteran suffered an event, injury or disease in service; and indicates that the claimed disability or symptoms may be associated with an established event, injury or disease. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79(2006). The threshold for finding a link between a current disability and service is low. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The evidence of record indicates that the Veteran suffers from a current disability, but does establish that the Veteran suffered an in-service event, injury or disease related to his current right hip disability. As such, VA was not required to obtain an examination to determine the nature and cause of the Veteran’s right hip disability. Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board notes that the Veteran has not submitted lay evidence or medical evidence that describes a causal relationship between his current right hip disability and his service, nor has the Veteran submitted lay or medical evidence that suggest he incurred his right hip disability during his service. The passage of time between the Veteran’s discharge and when his symptoms first manifested also weighs against the Veteran’s claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving claim, but not the sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board’s denial of service connection where the Veteran had failed to account for a lengthy time period between service and initial manifestation of disability). As such, the preponderance of the evidence indicates that the Veteran is not entitled to service connection for his right hip disability. 3. Entitlement to service connection for diabetes is denied. The Veteran contends that he suffers from diabetes as a result of his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran does suffer from diabetes, the preponderance of the evidence does not indicate that the Veteran suffers from diabetes that began during service or is otherwise related to an in-service injury, event, or disease. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records do not note the Veteran as suffering from diabetes, sugar in his urine, or other symptomatology suggestive of diabetes, during his service. VA treatment records show that the Veteran was diagnosed with diabetes in January 2014, decades after his separation from service. The record indicates that the Veteran did not receive a VA examination to determine the nature and cause of his diabetes. VA’s duty to assist requires that it provide an examination when the record contains competent lay or medical evidence of a current disability and establishes that the Veteran’s claimed disability may be associated with an established in-service event, injury or disease. See 38 U.S.C. § 5103A(d). The evidence of record indicates that the Veteran suffers from a current disability, but does establish that the Veteran suffered an in-service event, injury or disease related to his current diagnosis of diabetes. As such, VA was not required to obtain an examination to determine the nature and cause of the Veteran’s diabetes. See McLendon, 20 Vet. App. at 83. Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board notes that the Veteran has not submitted lay evidence or medical evidence that describes a causal relationship between his diabetes and his service, nor has the Veteran submitted lay or medical evidence that suggest that he incurred diabetes during his service. The passage of time between the Veteran’s discharge and when his symptoms first manifested also weighs against the Veteran’s claim. See Maxson, 230 F.3d at 1333. As such, the preponderance of the evidence indicates that the Veteran is not entitled to service connection diabetes. 4. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied. The Veteran contends that he suffers from bilateral lower extremity peripheral neuropathy as a result of his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran does suffer from bilateral lower extremity peripheral neuropathy, the preponderance of the evidence does not indicate that the Veteran suffers from bilateral lower extremity peripheral neuropathy that began during service or is otherwise related to an in-service injury, event, or disease. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records indicate that he suffered from “cramps in legs after hard exercise,” and that he suffered from a hamstring pull following an incident in which he was not able “to support his weight due to his legs being ‘asleep’,” but do not note the Veteran as suffering from bilateral lower extremity peripheral neuropathy or symptomatology suggestive of bilateral lower extremity peripheral neuropathy during his service. VA treatment records show that the Veteran was diagnosed with peripheral neuropathy in January 2014 due to diabetes, decades after his separation from service. The record indicates that the Veteran did not receive a VA examination to determine the nature and cause of his bilateral lower extremity peripheral neuropathy. VA’s duty to assist requires that it provide an examination when the record contains competent lay or medical evidence of a current disability and establishes that the Veteran’s claimed disability may be associated with an established in-service event, injury or disease. See 38 U.S.C. § 5103A(d). The evidence of record indicates that the Veteran suffers from a current disability, but does establish that the Veteran suffered an in-service event, injury or disease related to his current diagnosis of peripheral neuropathy. Specifically, the Veteran’s VA treatment records indicate that he suffers from peripheral neuropathy as secondary to his diabetes. As such, VA was not required to obtain an examination to determine the nature and cause of the Veteran’s bilateral lower extremity peripheral neuropathy. Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board notes that the Veteran has not submitted lay evidence or medical evidence that describes a causal relationship between his bilateral lower extremity peripheral neuropathy and his service, that the Veteran has not submitted lay or medical evidence that suggest that he incurred bilateral lower extremity peripheral neuropathy during his service, and that the medical evidence of record reveals that the Veteran suffers from peripheral neuropathy as a result of his non-service-connected diabetes. As such, the preponderance of the evidence indicates that the Veteran is not entitled to service connection for bilateral lower extremity peripheral neuropathy. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disability because no VA examiner has opined whether the Veteran suffers from an acquired psychiatric disability as a result of his service. An examination is necessary to resolve this claim. 2. Entitlement to service connection for a heart condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a heart condition because no VA examiner has opined whether the Veteran suffers from a heart condition as a result of his service. The Veteran’s VA treatment records indicate that he suffers from coronary artery disease, and it appears that the Veteran underwent surgery in or about 1999, several years after the conclusion of his service, to treat this condition. A 1984 service treatment record, titled “Coronary Artery Risk Evaluation,” recommended a “risk intervention” to address the Veteran’s cholesterol level. Given the evidence of record, an examination is necessary to determine whether the Veteran suffers from a heart condition as a result of his service. 3. Entitlement to service connection for hypertension is remanded. Because a decision on the remanded issue of entitlement to service connection for a heart condition could significantly impact a decision on the issue of entitlement to service connection for hypertension, the issues are inextricably intertwined. A remand of these claims is required. Moreover, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because no VA examiner has opined whether the Veteran suffers from hypertension as a result of his service. An examination is necessary to resolve this claim, and the requested examination report should discuss whether the Veteran’s hypertension is causally related to his heart condition or whether the Veteran’s hypertension is aggravated beyond its natural progression by the Veteran’s heart condition. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records not of record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disability. The examiner must opine whether it is at least as likely as not related to service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart condition. The examiner must opine whether it is at least as likely as not related to service. The opinion should include a discussion of the Veteran’s cholesterol during his service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner must opine whether it is at least as likely as not related to service, including a discussion of the Veteran’s cholesterol during his service; or whether it is at least as likely as not (1) proximately due to or causally related to the Veteran’s heart condition, or (2) aggravated beyond its natural progression by the Veteran’s heart condition. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Moore, Associate Counsel