Citation Nr: 18146262 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 17-40 037 DATE: October 31, 2018 ORDER New and material evidence has not been submitted to reopen a claim of entitlement to service connection for a prostate disorder and the claim remains denied. New and material evidence has not been submitted to reopen a claim of entitlement to service connection for a hypertension and the claim remains denied. New and material evidence has not been submitted to reopen a claim of entitlement to service connection for hearing loss and the claim remains denied. Entitlement to service connection for the residuals of a right knee injury, to include arthritis, is denied. Entitlement to service connection for the residuals of a head injury is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for urinary incontinence is denied. Entitlement to service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for respiratory problems is remanded. FINDINGS OF FACT 1. The Regional Office (RO) denied the reopening of a claim for service connection for a prostate disorder, and denied service connection for hypertension and hearing loss in April 2012; the Veteran did not timely perfect an appeal on any of these matters. 2. With respect to the issues of entitlement to service connection for: a prostate disorder, hypertension, and hearing loss, the evidence received since the January 2008 rating decision is not so significant that it must be considered to fairly decide the merits of the claims for service connection. 3. Service treatment records do not reveal that the Veteran had a right knee injury during active duty or any other period of service; the evidence of record reveals that the Veteran had a post service right knee injury and that his current right knee arthritis is not related to any period of service. 4. Service treatment records reveal a single report that the Veteran hit his head on a rusty nail in March 1970 but no residual symptoms were documented on separation examination; the evidence of record does not reveal any current residuals of the active duty head injury. 5. Service treatment records do not reveal any complaints of reflux or diagnosis of GERD during active duty or any other period of service; the evidence of record reveals post-service reports of reflux dated decades after service. There is no evidence linking any current symptoms of reflux to any period of service. 6. Service treatment records do not reveal any complaints of urinary incontinence during active duty or any other period of service; there is no evidence linking any current symptoms of urinary incontinence to any period of service or to Agent Orange exposure. 7. Service treatment records do not reveal any complaints of erectile dysfunction during active duty or any other period of service; there is no evidence linking any current symptoms of erectile dysfunction to any period of service or to Agent Orange exposure. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the April rating decision as to the claim seeking service connection for a prostate disorder and that claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has not been received since the April 2012 rating decision as to the claim seeking service connection for hypertension and that claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been received since the April 2012 rating decision as to the claim seeking service connection for hearing loss and that claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for the residuals of a right knee injury, to include arthritis, have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for the residuals of a head injury have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for GERD have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for urinary incontinence have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for erectile dysfunction have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 1968 to April 1970; during this period, he served in the Republic of Vietnam. Subsequently he served in the Army National Guard from June 1986 to June 2003, ultimately retiring from the National Guard. The Veteran does not assert that any of the disabilities at issue are related to his National Guard service. Rather he claims that they are the result of his period of active duty. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) RO. The Veteran has not been provided VA examinations with respect to all the issues on appeal. In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant’s active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. 38 U.S.C. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With respect to the claimed disabilities for which no examination has been provided, the record does not reflect that any are required, either no current disability is shown to be present, there is a lack of evidence of the disability in service, or a lack of any evidence that the claimed disabilities may be related to service. Reopening the Claims for Service Connection If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board’s determination of the question of whether new and material evidence has been submitted. Barnett v. Brown, 8 Vet. App. 1 (1995). The RO denied the reopening of a claim for service connection for a prostate disorder, and denied service connection for hypertension and hearing loss in an April 2012 rating decision. The Veteran filed a notice of disagreement (NOD) with respect only to the denial of service connection for hypertension but did not timely perfect an appeal after a statement of the case was issued in June 2013. Therefore, the April 2012 decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. 1. New and material evidence to reopen the claim for service connection for a prostate disorder. The Veteran has asserted his claim for service connection for a prostate disorder based on Agent Orange exposure. VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for prostate cancer. 38 C.F.R. § 3.309(e). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 are presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f). The evidence of record at the time of the April 2012 rating decision established that the Veteran served in Vietnam during the required period and he is presumed to have been exposed to Agent Orange during active duty. At that time the record also contained: the Veteran’s service treatment records showing that no of a prostate disorder during service; and VA medical records showing a current diagnosis of benign prostatic hypertrophy (BPH). There was no evidence of any diagnosis of prostate cancer and no evidence linking the BPH to active duty or to Agent Orange exposure. The evidence received since the April 2012 rating decision that is related to this includes additional VA treatment records which do not show a diagnosis of prostate cancer, and do not link BPH to service. Accordingly, this does not even raise to the level to trigger any assistance to the Veteran or to be new and material to reopen. This evidence that is not new and material; rather it is cumulative and redundant of the evidence already of record which established that the Veteran has a current disability of BPH. No evidence received after the April 2012 rating decision links the Veteran’s current BPH to service and there is no evidence of a diagnosis of prostate cancer. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a prostate disorder. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran’s petition to reopen such claim is denied. 2. New and material Enter to reopen the claim for service connection for hypertension. The evidence of record at the time of the April 2012 rating decision established that the Veteran had a current diagnosis of hypertension. The evidence did not did not establish that: the Veteran had hypertension during service, hypertension became manifest within the first year after separation from service, or that his current hypertension was in any way related to his active duty service. At that time the record also contained: the Veteran’s service treatment records showing that no diagnosis of hypertension during service; and VA medical records showing a current diagnosis of hypertension and a VA Compensation and Pension examination report. The Compensation and Pension examiner reviewed the evidence of record, including the Veteran's service treatment records and indicated that the Veteran did not have hypertension during service, that he was first diagnosed with hypertension almost 18 years after separation from active duty, and that the Veteran's hypertension was unrelated to service. The evidence received since the April 2012 rating decision that is related to this includes additional VA treatment records which show that the Veteran's hypertension is controlled with medical treatment. in an August 2018 statement, the Veteran's representative asserted that blood pressure readings during service showed “high blood pressure.” However, these readings were already reviewed by the examiner in the April 2012 Compensation and Pension examination report and found to not be evidence of hypertension in service. Accordingly, this does not even raise to the level to trigger any assistance to the Veteran or to be new and material to reopen. This evidence that is not new and material; rather it is cumulative and redundant of the evidence already of record which established that the Veteran has a current disability of hypertension which became manifest almost two decades after separation from active duty. No evidence received after the April 2012 rating decision links the Veteran’s current hypertension to service. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for hypertension. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran’s petition to reopen such claim is denied. 3. New and material evidence to reopen the claim for service connection for hearing loss. The evidence of record at the time of the April 2012 rating decision established that the Veteran had a current diagnosis of mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. The evidence did not did not establish that the Veteran's current hearing loss became manifest within the first year after separation from service, or that the hearing loss was related to his active duty service. At that time the record also contained: the Veteran’s service treatment records showing that he had normal hearing on separation examination from active duty, VA medical records and a VA Compensation and Pension examination report. The Compensation and Pension examiner reviewed the evidence of record, including the Veteran’s service treatment records and indicated that the Veteran did have a documented instance of acoustic trauma with a subsequent hearing test showing some hearing loss in the left ear; however, separation examination testing revealed that hearing improved and his hearing was normal in both ears on separation from active duty. The examiner indicated that the current hearing loss was not related to the Veteran's active duty service including the acoustic trauma noted therein. The Veteran's National Guard service treatment records show that he had some level of hearing loss already present on his enlistment to the National Guard in 1986. The evidence received since the April 2012 rating decision that is related to this includes additional VA treatment records which do not provide any link between the Veteran's current hearing loss and his active duty. Accordingly, this does not even raise to the level to trigger any assistance to the Veteran or to be new and material to reopen. This evidence that is not new and material; rather it is cumulative and redundant of the evidence already of record which established that the Veteran has a current hearing loss disability which became manifest more than a year after his separation from active duty. No evidence received after the April 2012 rating decision links the Veteran’s current hearing loss to service. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for hearing loss. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran’s petition to reopen such claim is denied. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 4. Entitlement to service connection for the residuals of a right knee injury. In his July 2016 claim, the Veteran merely asserted a claim for service connection for “right knee problems.” Review of the Veteran's active duty service treatment records does not reveal any complaints related to his right knee. There is no evidence of a right knee injury during active duty. In April 1970 separation examination of the Veteran was conducted and clinical evaluation of his lower extremities was normal. On the accompanying report of medical history, he did not report any knee symptoms. National Guard service treatment records reveal that the Veteran reported having right knee injuries in 1986 and 1989, while not in duty status. A June 1989 National Guard treatment records specifically noted a history of a right knee injury with ligament rupture which he re-injured the prior May. The diagnostic impression was that the Veteran had trauma to the right knee which existed prior to his National Guard service. Other National Guard service treatment records note that the Veteran had knee surgery in 1990. In November 2016 a VA Compensation and Pension examination of the Veteran was conducted. The diagnosis was right knee arthritis. The Veteran reported that he had a fall injury to his right knee during active duty. The examining physician’s medical opinion was that the Veteran's right knee arthritis was not related to service, but was the result of the natural aging process. The preponderance of the evidence is against the Veteran’s claim for service connection for the residuals of a right knee injury. On VA examination, the examiner indicated that the Veteran had arthritis of the right knee which was age related. Despite the Veteran's assertions that he injured his right knee during active duty, the service treatment records do not show any such injury. National Guard records document a right knee injury decades after the Veteran separated from active duty but not during any other period of service. Accordingly, service connection is not warranted and the appeal is denied. 5. Entitlement to service connection for the residuals of a head injury. The Veteran claims entitlement to service connection for the residuals of a head injury during active duty. Service treatment records reveal a single report that the Veteran “hit his head on a rusty nail” in March 1970. He was treated at a field hospital. No residual symptoms were reported or documented on separation examination from active duty. Subsequently, the Veteran failed to report any residual symptoms form this head injury on National Guard medical records. National Guard and VA medical treatment records dated after active duty indicate normal findings with respect to the Veteran's head. No residuals of the single head injury during active duty in 1970 are shown in the record. The evidence of record dose not reveal any current residuals of the active duty head injury. The preponderance of the evidence is against the Veteran’s claim for service connection for the residuals of a head injury. While a single head injury during active duty in 1970 is shown in the service treatment records, no residual disability is present. All medical evidence dated after active duty, including VA and National Guard medical records, reveal normal findings with respect to the Veteran's head. No residual disability is shown and the Veteran has not provided any evidence of a current disability resulting from that head injury. Without a current disability, the Veteran cannot have a valid claim. Accordingly, service connection is not warranted and the appeal is denied. 6. Entitlement to service connection for GERD. The Veteran's claim for service connection for GERD are difficult to parse. He claimed entitlement to service connection for esophageal reflux. In a July 2017 statement which serves as his substantive appeal, he refers to drinking contaminated water during active duty in Vietnam. However, he also admits that he didn’t suffer from reflux or other related condition during active duty. He then asserts that he has recent symptoms of reflux. Review of the service treatment records does not reveal any complaints, treatment for, or diagnosis of reflux or GERD during active duty or any other period of service. Two VA outpatient nutritional assessment notes dated in October and December 2010 indicate that the Veteran reported “altered GI function probably related to big foods portions and high fat intake as evidenced by 24 hrs diet recall and symptoms of esophageal reflux by which a low irritants diet was advised.” There is no specific diagnosis of GERD and no credible evidence linking the Veteran's current symptoms of reflux to any period of service. The preponderance of the evidence is against the Veteran’s claim for service connection for GERD. There is no evidence of reflux during service and no credible evidence linking any current symptoms of reflux to service. Accordingly, service connection is not warranted and the appeal is denied. 7. Entitlement to service connection for urinary incontinence. The Veteran has asserted a vague claim for service connection for urinary incontinence. In a July 2017 written statement, the Veteran stated that his personal doctor treats him with medication for urinary incontinence. He further states that “the condition did not happen while in my military service but has developed through the years and it is somehow related with Agent Orange exposure in Vietnam.” Again, service treatment records for both the period of active duty service and National Guard Service do not show any complaints related to urinary incontinence. Recent VA medical treatment records indicate that the Veteran reported being treated with Detrol LA, by a non-VA physician; this medication is used to treat over active bladder symptoms. VA medical records do not indicate any diagnosis or reports of urinary incontinence. In fact, such a symptom is specifically evaluated as not being present on multiple recent VA treatment records. Recent VA medical records indicate a diagnosis of BPH without obstructive urinary symptoms. Urinary incontinence is not a disability which warrants presumptive service connection based on Agent Orange exposure; to the extent that the Veteran is somehow asserting that he has urinary incontinence as a result of his prostate disorder, BPH, service connection for that disability has been denied, and his petition to reopen that claim is denied above. The preponderance of the evidence is against the Veteran’s claim for service connection for urinary incontinence. To the extent that the Veteran has current symptoms of urinary incontinence, which is not fully supported by the medical evidence of record, there is no credible evidence linking any such symptoms of to service or Agent Orange exposure. Accordingly, service connection is not warranted and the appeal is denied. 8. Entitlement to service connection for erectile dysfunction. Finally, the Veteran has asserted a vague claim for service connection for erectile dysfunction. In the July 2017 written statement, the Veteran stated that he suffered from erectile dysfunction and that he believed that it was “presumably caused by the exposure to Agent Orange.” Again, service treatment records for both the period of active duty service and National Guard Service do not show any complaints related to erectile dysfunction. Again, recent VA medical treatment records indicate a diagnosis of BPH without obstructive urinary symptoms. The VA records also indicate that the BPH was being treated medically with Dutasteride. The Board notes that side effects of this medication can be impotence and decrease in libido; however, there is no documentation of any such symptoms in the evidence of record. Erectile dysfunction is not a disability which of itself warrants service connection on the basis of exposure to Agent Orange; however, it is often a symptom of other disabilities such as diabetes mellitus and prostate cancer, which do warrant presumptive service connection on the basis of Agent Orange exposure. See, 38 C.F.R. § 3.309(e). Unfortunately, service connection has not been established of either of these disabilities. To the extent that the Veteran is somehow asserting that he has erectile dysfunction as a result of his prostate disorder, BPH, service connection for that disability has been denied, and his petition to reopen that claim is denied above. The preponderance of the evidence is against the Veteran’s claim for service connection for erectile dysfunction. To the extent that the Veteran has current symptoms of erectile dysfunction, which is not fully supported by the medical evidence of record, there is no credible evidence linking any such symptoms to service or Agent Orange exposure. Accordingly, service connection is not warranted and the appeal is denied. REASONS FOR REMAND The Veteran’s claims entitlement to service connection for respiratory problems. October 2016 VA treatment records reveal that the Veteran was shown to have a small lung nodule on CT examination. Since lung cancer is a disability which warrants service connection on the basis of Agent Orange exposure under 38 C.F.R. § 3.309(e), a VA examination is necessary. Updated treatment records should be sought on appeal. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his respiratory disorder claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. The Veteran should be afforded the appropriate VA examination for respiratory disorders, to include lung cancer to determine the nature of any current respiratory disability, and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide all appropriate diagnoses for the Veteran’s claimed respiratory disorders, to include indicating whether the Veteran's lung nodule is lung cancer. For each diagnosed disorder, or if there is functional loss, the examiner is asked to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such is   related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel