Citation Nr: 18146597 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 17-67 569 DATE: October 31, 2018 ORDER New and material evidence not having been received, the claim of entitlement to service connection for a hearing loss is not reopened. New and material evidence having been received, the claim of entitlement to service connection for hypertensive vascular disease is reopened. Entitlement to service connection for hypertensive vascular disease is denied. Entitlement to service connection for epididymitis is denied. Entitlement to service connection for residuals of a left above the knee amputation secondary to hypertensive vascular disease is denied. Entitlement to service connection for residuals of a right below the knee amputation as secondary to hypertensive vascular disease is denied. FINDINGS OF FACT 1. An unappealed September 2013 VA rating decision denied entitlement to service connection for a hearing loss. The evidence received since the September 2013 decision does not relate to unestablished facts sufficient to reopen the claim of entitlement to service connection for a hearing loss. 2. An unappealed March 2014 VA rating decision denied entitlement to service connection for hypertensive vascular disease. The evidence received since the March 2014 decision relates to unestablished facts sufficient to reopen the claim of entitlement to service connection for hypertensive vascular disease. 3. The preponderance of the evidence is against finding that hypertensive vascular disease was incurred or aggravated during the Veteran’s active duty service or that it became compensably disabling within a year after separation from active duty. 4. Throughout the appellate period, the Veteran did not have a diagnosis or a disability relating to epididymitis for VA compensation purposes. 5. Residuals of a left leg above the knee amputation secondary to hypertensive vascular disease are not related to the Veteran’s service or to any service-connected disability. 6. Residuals of a right leg below the knee amputation secondary to hypertensive vascular disease are not related to the Veteran’s service or to any service-connected disability. CONCLUSIONS OF LAW 1. A September 2013 VA rating decision that denied entitlement to service connection for hearing loss is final; new and material evidence has not been received to reopen the claim. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 2. A March 2014 VA rating decision that denied entitlement to service connection for hypertensive vascular disease is final; new and material evidence has been received sufficient to reopen the claim. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 3. Hypertensive vascular disease was not incurred or aggravated in service, and it may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 4. Epididymitis was not incurred or aggravated inservice. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. Residuals of a left leg above the knee amputation were not incurred or aggravated inservice, and they were not caused or aggravated by a service connected disorder. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 6. Residuals of a right below the knee amputation were not incurred or aggravated inservice, and they were not caused or aggravated by a service connected disorder. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1955 to November 1957. This matter arises before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). New and Material Evidence A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or 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. Id. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance, and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Hearing Loss The Veteran’s service connection claim of entitlement to service connection for hearing loss was initially denied in a September 2013 rating decision because the RO determined that the Veteran’s post-service audiometric findings did not meet the criteria for a grant of service connection for hearing loss. In making this determination, the RO relied on an August 2013 VA examination report, which included audiometric findings that did not meeting the requirements set forth in 38 C.F.R. 3.385. The Veteran did not perfect a timely appeal or submit new and material evidence during the appeal period; therefore, the September 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final decision, no new evidence has been submitted to VA, other than an April 2015 request to reopen; an April 2016 request for an “increased rating” for bilateral hearing loss; a July 2016 Notice of Disagreement, and a February 2018 statement of Accredited Representative, which lists hearing loss as one of the issues the Veteran is appealing. No evidence has been submitted showing that the appellant has a hearing loss as defined by 38 C.F.R. § 3.385, and no evidence shows a link between any current hearing loss and the Veteran’s active duty service. Therefore, evidence submitted since the last, final September 2013 rating decision is cumulative and redundant. It does not address the basis for the last final denial, namely the lack of a current hearing loss disability. Therefore, additional evidence submitted is not material to establishing an unproven fact since the September 2013 rating decision. In this regard, new and material evidence has not been submitted, and the application to reopen the claim for service connection for hearing loss is denied. Hypertensive Vascular Disease The Veteran’s claim for hypertensive vascular disease was originally denied because of a lack of a connection between the disorder and his active duty service. Since that March 2014 denial, relevant evidence has been added to the claims file relating to the Veteran’ hypertensive condition, to include medical records through February 2018 added to the claims file in that month. The Board finds that the supplemental evidence relates to a previously unestablished fact relevant to the disability, and constitutes new and material evidence. Hence, the claim of entitlement to service connection for hypertensive vascular disease (also claimed as vascular problems and peripheral vascular disease) is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: (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 or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Epididymitis A review of the service treatment records reveals that the Veteran was treated for gonorrhea in October 1956. He complained of and was treated for genitourinary problems in November 1956. Shortly thereafter, the Veteran was admitted to an overseas military hospital for ten days with diagnoses of acute urethritis and acute epididymitis, both attributed to gonococcus. At a November 1957 separation examination, the appellant’s genitourinary system was clinically evaluated as normal. While VA treatment records from April 2014 note the 1956 diagnoses, there is no other medical evidence of record of any reoccurrence, or relapse of epididymitis for the past 63 years. There are also no post service treatment records for any similar condition, chronic, persistent or otherwise. Most importantly, there is no evidence showing that any current epididymitis is related to the claimant’s active duty service. The Board acknowledges the evidence of record showing the Veteran’s history of gonorrhea and associated urethritis and epididymitis. but there is no evidence that any one of those conditions currently exists. Again, there also is no evidence showing that any current epididymitis is related to the claimant’s active duty service. Given the absence of any credible medical evidence of a current disability, the Board finds the service connection claim to be deficient. While the Veteran is competent to report observable symptoms, he is not competent to provide a diagnosis of a chronic disability or link any current genitourinary disorder to his active service. Such findings require medical expertise and are outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a current diagnosis or an etiology opinion related to this disability. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during, or contemporary to, the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, there is no evidence of record showing the Veteran to have a current diagnosis of epididymitis during the period of the claim, or proximate thereto. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for epididymitis is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertensive vascular disease With a chronic disease 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 clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). A continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that a veteran’s disability was both preexisting and not aggravated by service. Wagner v. Prinicipi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Initially the Board notes that in May 2014 the Veteran supplied a statement broadening some of his claims to include entitlement based on exposure to herbicide agents. He has also asserted that presumptive exposure to herbicide agents should be granted based on his active service in Okinawa. The Board notes that no evidence has been submitted to corroborate this bare assertion. Moreover, the provisions of 38 U.S.C. § 3.309 (e) exclude hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease from the list of diseases that are subject to presumptive exposure analysis. Id. Note 2. It is also well to note that Okinawa is not a duty location identified in the regulations as subject to presumptive herbicide exposure such as the Republic of Vietnam or Thailand base perimeter duty locations. The Veteran does not contend, nor does the record support any claim for direct herbicide exposure as a theory of entitlement. As to secondary service connection, the Veteran is service connected singularly for tinnitus. Service treatment records from the Veteran’s period of active duty do not reveal any evidence of hypertensive vascular disease. At his April 1955 entrance examination, the Veteran denied any history of hypertension, and his blood pressure was within normal limits. At no time was the Veteran was treated for hypertension during active service. At his separation examination in November 1957, the Veteran again reported no problems with hypertension. At that time, the Veteran reported his health as good with no exception for high blood pressure or hypertension, and hypertension was not diagnosed. VA Treatment records from April 2012 report a history for hypertension not otherwise specified. Follow-on reports from 2016 indicate non-compliance with hypertension medication protocols. However, there is no medical evidence of hypertension or peripheral vascular disease for over 50 years after separation. In this case, there is no service treatment record, including any separation examination which contains a diagnosis of hypertensive vascular disease. The preponderance of the most probative evidence demonstrates that hypertensive vascular disease was neither diagnosed nor reported for more than 50 years after separation. There is no objective evidence showing that hypertension or hypertensive vascular disease was manifested to a compensable degree within one year following discharge from active duty. The Board considered the Veteran’s contentions that hypertension began during service or is related to service. As discussed above, he is not competent to diagnose hypertension nor is he competent to provide an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board also acknowledges the reported history of hypertension decades after separation from service, but again observes that hypertensive vascular disease was not noted in service. Under these circumstances, the Board does not find the chronicity and continuity of symptomatology rules of 38 C.F.R. § 3.303(b) for application. See Walker. In summary, the probative evidence is against finding either hypertension during service, or compensably disabling hypertension within one year following discharge from active duty. Finally, the probative evidence preponderates against finding that hypertensive vascular disease is related to active service or events therein, that might otherwise warrant the granting of the claim. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of a left leg above the knee amputation and a right leg below the knee amputation, to include secondary to hypertensive vascular disease The Board finds and the record reflects that the medical evidence regarding the amputation residuals involving the appellant’s legs is sufficiently similar as to etiology and applicable regulations, that the two disabilities may be analyzed together without prejudice to the Veteran. The Veteran’s contentions revolve around the belief that hypertensive vascular disease caused infections including gangrene in each leg, and that these infections ultimately necessitated that his legs be amputated. As such, he is seeking service connection secondary to hypertensive vascular disease. As held above the Veteran is not entitled to service connection for hypertensive vascular disease. Further, the evidence preponderates against finding that service connection on a direct basis is warranted. VA treatment records reflect that the Veteran had been suffering from diabetes since 1996. In September 2008, he was diagnosed with foot ulcers and provided with special shoes in an attempt to prevent aggravation of the disorder. The Veteran’s foot problems continued to worsen and expand, to include interim and progressive amputations until December 2012 when both legs were amputated above the knee on the left side and below the knee on the right side. All of the disease progression in the Veteran’s legs was associated in the medical records with diabetes, a nonservice connected disorder. A threshold legal requirement for substantiating a claim of secondary service connection is that the primary disability to which the claimed disability is alleged to be secondary, must be service-connected. See 38 C.F.R. § 3.310. As the determination above affirms the denial of service connection for hypertensive vascular disease that threshold requirement is not met. Accordingly, the claims lack legal merit. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel