Citation Nr: 18147502 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-18 673 DATE: November 5, 2018 ORDER Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for diabetes mellitus, to include as due to herbicide agent exposure, is denied. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for a bilateral eye injury, to include as secondary to diabetes mellitus, is denied. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for a dental condition is denied. Entitlement to service connection for congestive heart failure, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus is denied. Entitlement to service connection for a kidney condition, to include as secondary to diabetes mellitus is denied. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The September 2009, February 2011, and May 2013 rating decisions that denied service connection for diabetes mellitus, bilateral eye injury, and dental condition are final. 2. The evidence received since the final rating decision is cumulative and does not raise a reasonable possibility of substantiating the claims denied in the September 2009, February 2011, and May 2013 rating decisions. 3. The probative evidence of record does not show the Veteran’s congestive heart failure is etiologically related to an in-service injury, event, or disease, had its onset within one year of service, or is secondary to a service-connected disability 4. The probative evidence of record does not show that the Veteran’s hypertension is etiologically related to an in-service injury, event, or disease, had its onset within one year of service, or is secondary to a service-connected disability. 5. The probative evidence of record does not show that the Veteran’s kidney disability is etiologically related to an in-service injury, event, or disease, had its onset within one year of service, or is secondary to a service-connected disability. 6. The probative evidence of record does not show the Veteran’s MDD had its onset during service or is otherwise etiologically related to service. 7. The evidence of record does not show that the Veteran has PTSD caused by stressors that occurred during service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claims of service connection for diabetes mellitus, a bilateral eye injury, and dental condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for congestive heart failure, to include as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.310. 3. The criteria for service connection for hypertension, to include as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.310. 4. The criteria for service connection for a kidney condition, to include as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.310. 5. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and MDD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from October 1972 to October 1975. In his April 2015 and June 2017 substantive appeals, the Veteran requested a Travel Board hearing; however, in a July 2018 statement, he withdrew his request. Petition to Reopen Applicable law provides that an RO decision that is not appealed becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Once a decision becomes final, new and material evidence is required to reopen the claim that was denied. 38 U.S.C. § 5108 provides that “if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” Regulations provide that “new” evidence is existing evidence not previously submitted to agency decision-makers. “Material” evidence is 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 neither be 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. See 38 C.F.R. § 3.156(a). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The law provides that evidence proffered by the Veteran to reopen his claim is presumed credible for the limited purpose of ascertaining its materiality. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). 1. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for diabetes mellitus, to include as due to herbicide agent exposure. 2. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for a bilateral eye injury, to include as secondary to diabetes mellitus. 3. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for a dental condition. In September 2009, February 2011, and May 2013, the RO denied entitlement to service connection for congestive diabetes mellitus, a bilateral eye disability, and a dental condition, respectively. At that time, the RO considered the Veteran’s service treatment records, which were negative for any diagnosis or treatment for diabetes mellitus. In describing his medical history, he indicated his father had diabetes. Treatment records showed the Veteran complained of pain in his left eye; examination found conjunctiva, redness and swelling. Later, he reported an infection in his right eye; an examiner found a stye on the lower lid and suggested heat and medication as treatment. Conditions in both eyes resolved and no residuals were reported. He also underwent extractions of several teeth between 1973 and 1974. Overall, his separation examination was considered normal in all areas. The Veteran reported that he was sprayed with some chemicals that got into his eyes and caused him to lose sight in both eyes for about two weeks. He also indicated that he was exposed to Agent Orange while serving in Thailand; a VA memorandum regarding herbicide agent use in Thailand indicated that tactical herbicides were only used from April to September 1964 at the Pranburi Military Reservation. Also considered were available VA treatment records, which indicated he was on medication to manage his diabetes mellitus and diabetic macular edema and retinopathy, but there was no indication these conditions were considered residuals of an accident during service; rather, they were related directly to his diabetes mellitus diagnosis. The Veteran was afforded a VA examination for eye conditions in October 2010; he reported an undiagnosed, bilateral eye condition that existed since 1976. He experienced pain, redness, glare, sensitivity to light, distorted vision, swelling, halo, watering discharge, and blurred vision. He had surgery for his right eye twice and was given eye drops, but still experienced residual symptoms. After examination, the examiner diagnosed diabetic retinopathy, macular edema, left eye retinal tractional detachment, and cataracts in both eyes. The examiner was unable to resolve the issue of eye injuries or underlying retinal damage due to chemical exposure without resort to speculation due to the amount of diabetic retinopathy. Ultimately, it was found that the Veteran’s decreased visual acuity and problems were the result of diabetic retinopathy. Based on the foregoing, the RO denied service connection for diabetes mellitus because there was no evidence showing exposure to Agent Orange or that it had its onset during service; moreover, the evidence did not indicate the diagnosis manifested within one year following separation. The denial for a dental condition was based on a lack of “service trauma” or a chronic or systemic disease with loss of substance of the mandible and/or maxilla bone; therapeutic tooth extractions are not considered dental trauma for compensation purposes. Service connection for an eye disability was denied because the Veteran did not have any residuals attributable to an accident during service; the issue resolved and post-service treatment records did not show a chronic bilateral eye condition related to service. Moreover, there was no evidence showing complaints, treatment or a diagnosis during service or within one year of separation. The September 2009, February 2011, and May 2013 rating decisions, with notice of appellate rights, were mailed to the Veteran’s address of record and were not returned as undeliverable. Although notified of the denial, the Veteran did not initiate an appeal or submit new and material evidence relevant to his claims during the one-year appeal period following the issuance of the rating decisions. See 38 C.F.R. § 3.156(b). Accordingly, all three rating decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. As noted above, a final decision cannot be reopened unless new and material evidence is presented. In this case, an unestablished fact necessary to substantiate the claim for diabetes mellitus is evidence of a diagnosis, an event, injury, or disease during service (including exposure to Agent Orange), and a medical nexus connecting the diagnosis to service. Evidence showing a relationship between his current eye conditions and service, and “service trauma,” or a chronic dental disease would substantiate claims for an eye and dental disability. The Veteran submitted a petition to reopen his claims for diabetes mellitus, bilateral eye disability, and dental condition in February 2011 and December 2015. Evidence associated with the claims file following the September 2009, February 2011, and May 2013 rating decisions includes statements in support of his claim, VA examinations, and various treatment records. Within his statements, he indicated that he was exposed to Agent Orange while serving in Thailand and on a trip to Cambodia; he also mentioned that his plane stopped in Vietnam to refuel before landing in Thailand. VA treatment records do not provide any insight into the cause or etiology of the Veteran’s diabetes mellitus, eye, or dental conditions. Records show active treatment for diabetes mellitus and related eye conditions; however, there is no indication he has any current dental condition. As for his diabetes mellitus claim, the Veteran indicated he was exposed to Agent Orange in multiple situations during service; however, he has consistently made this assertion throughout the appeal and his treatment and general service records are negative for evidence of any exposure. Moreover, there is no evidence showing a current dental condition related to service or a relationship between his eye disabilities and service. Rather, the evidence shows that his current eye diagnoses are due to his diabetes mellitus. Therefore, none of the evidence received since the applicable final rating decisions is considered material to the Veteran’s claim. Under these circumstances, the Board finds that new and material evidence has not been received and the petitions to reopen claims of entitlement to service connection for diabetes mellitus, bilateral eye disability and dental condition, are denied. Service Connection Establishing service connection generally requires (1) the existence of 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. See 38 U.S.C. § 1110 (2012); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that in the absence of a current disability, there can be no valid claim for service connection). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and a stressor event during active service; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 4. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder (MDD). As noted above, the issue has been recharacterized as service connection for an acquired psychiatric disorder, to include PTSD because the Veteran has several psychiatric diagnoses, including PTSD and major depressive disorder (MDD). He contends that his mental diagnoses are related to stressors that occurred during service. Review of the Veteran’s service treatment records does not show complaints, treatment or diagnosis of any mental health condition. An examination conducted in June 1975 was negative for any psychiatric illnesses; in the accompanying report of medical history, the Veteran indicated he was in good health and did not have any significant illness. VA treatment records show the Veteran denied any significant history of psychiatric issues in 2004. In a questionnaire completed in October 2000, he admitted to experiencing depression; however, in November 2008, he reported feeling hopeless about the future, but had a negative suicide risk. He underwent a mental health consult in June 2008 and reported feeling depressed for one month and problems sleeping due to worry. A subsequent depression screening showed moderate, severe depression. In February 2011, the Veteran was hospitalized for suicidal ideations and auditory hallucinations; he was discharged after a week, when he was found to be stable. More recently, the Veteran renewed his participation in individual counseling and medication as treatment for his mental health conditions. He reported extensive stress, depression, and PTSD symptoms; his chart also noted he had substance abuse issues that reappeared in 2014. In May 2010, a private physician diagnosed the Veteran with anxiety and depression, and noted a suspicion of posttraumatic stress disorder. The Veteran was afforded a VA PTSD examination in May 2011 and reported severe symptoms of sadness, hopelessness, suicidal thoughts, hearing voices, paranoia, memory loss, and poor judgment that began in 2008. He also noted trouble sleeping and ongoing symptoms that impacted his daily functioning. He had previous suicide attempts and inpatient treatment on two separate occasions. He reported one main stressor, in which described experiencing intense fear while hiding on a bus during an attack by several men and watching them assault the driver and other passengers. He reported thinking about the event often and had difficulty falling asleep. Ultimately, the examiner provided a diagnosis of major depressive disorder and polysubstance abuse, which he reported as a separate identity. The examiner noted that the Veteran’s diagnosis did not meet the diagnostic criteria of PTSD according to DSM IV because he did not meet the full criteria for PTSD. Rather, his symptoms were better explained by major depressive disorder, which the examiner found was related to the in-service stressor. However, the examiner also noted that the stressor event was not supported by medical records; there was no indication he sought help or treatment afterwards. A September 2013 VA memo indicated a formal finding of lack of information for a claim of PTSD. It was determined that the information required to corroborate stressful events claimed by the Veteran was unavailable and insufficient to submit further research to the U.S. Army and Joint Services Records Research Center (JSRRC), the Marines Research Center, and/or the National Archives and Records Administration (NARA.) Based on the foregoing, the Board finds that the evidence does not show an adequate nexus between the Veteran’s psychiatric diagnoses and experiences during service. None of his VA or private treatment records contain a nexus opinion or discuss etiology of the Veteran’s claimed psychological conditions. The Board finds that service connection for PTSD is not warranted because although he has an adequate diagnosis, his reported stressors have not been verified. Specifically, as stated above, the September 2013 memo indicated that the record does not contain and the Veteran has not provided enough information to verify his reported stressor of fearing for his life during an attack on his bus to Fort Hood. His service records are negative for any evidence of this event and do not show the Veteran sought treatment following the ordeal. The Board finds that service connection for MDD is also not warranted. He has a current diagnosis, but there is no indication his condition had its onset in service or evidence of a confirmed in-service event, injury, or disease. As noted above, his service treatment records are negative for any complaints or diagnosis of any psychiatric conditions. Although, the May 2011 examiner indicated that his diagnosis was related to his in-service stressor, it was also noted that the stressor was not supported by the evidence. Again, VA has determined there was insufficient evidence to support his contention that the reported stressor occurred. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for any acquired psychiatric disorder, as the record evidence does not indicate the onset of his MDD occurred in service, or his PTSD is related to in-service stressors. Accordingly, service connection for MDD and/or PTSD is not warranted. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against the Veteran’s claim, and there is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for congestive heart failure (CHF), to include as secondary to diabetes mellitus. Review of the Veteran’s service treatment records does not show complaints, treatment or diagnosis of any heart condition or related symptoms. An examination conducted in June 1975 was negative for any illnesses; in the accompanying report of medical history, the Veteran indicated he was in good health and did not have any significant illness. The Veteran has a current diagnosis of congestive heart failure as shown by treatment records dated in 2009; he was seen in the hospital for shortness of breath and was diagnosed with decompensated left ventricular systolic heart failure. He was admitted to the hospital in February 2010 for chest pain; a heart attack was ruled out. A chest x-ray dated January 2013 showed the heart was within normal limits; a right sided, double lumen catheter remained intact. Another x-ray was conducted in April 2014 and showed mild atherosclerotic changes of the aortic arch; the catheter had been removed. More recently, he reported no chest pain or other symptoms, but he continued to be followed by cardiology due to his history. Based on the foregoing, the Board finds that service connection for CHF is not warranted on any basis. There is no evidence of any heart disease during or within one year of service. Rather, the evidence shows the Veteran began experiencing symptoms and was first diagnosed in 2009. Therefore, service connection is not available on a direct or presumptive basis. The Board notes that service connection for diabetes mellitus is not in effect (the Veteran is currently only service connected for hearing loss); therefore, service connection for CHF on a secondary basis is also not warranted. The Veteran has not been afforded a VA examination because the evidence does not meet the requirements noted in McLendon v. Nicholson, 20 Vet. App. 79 (2006.) VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) 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, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. As for the first element of service connection, the Veteran has a current diagnosis of CHF. As for an in-service event, injury, or disease, as noted above, his service treatment records are silent for any symptoms or diagnosis. The Veteran has offered his condition is secondary to his diabetes mellitus; however, service connection has not been established for that condition. Treatment records show his heart condition was diagnosed in 2009, well after the Veteran separated from service in 1975. Based on the foregoing, even under the low threshold of Mclendon, VA is not required to provide an examination. Although the Veteran contends that service connection for his heart condition is warranted, the evidence of a nexus is limited to his self-reports. In this case, the Board considers the causes and manifestations of a complex heart condition diagnosed approximately 30+ years after service to be a medical question that requires expertise beyond a lay person’s general observation. See Kahana v. Shinseki, 24 Vet. App. 248, 435 (2011). To the extent the Veteran believes that his heart conditions are due to service, as a lay person, he has not shown to possess any specialized training in the medical field. Thus, the Veteran’s opinion as to the origin and cause of his heart condition falls outside the scope of his competency as lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a)(1). As such, the Veteran’s assertions in this regard are of no probative value. Id. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for congestive heart failure, as the record evidence does not indicate the Veteran had the onset of this condition in service, within one year of service or due to any service-connected condition. Accordingly, service connection for a heart condition is not warranted. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against the Veteran’s claim, and there is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for congestive heart failure is denied. 6. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 7. Entitlement to service connection for a kidney condition, to include as secondary to diabetes mellitus. As noted above, secondary service connection requires a current diagnosis, a service connected condition and evidence or an opinion showing a nexus between the two. In a May 2013 notice of disagreement, the Veteran, in pertinent part, indicated that his claims of service connection for hypertension and kidney condition were secondary service connection claims based on diabetes mellitus. The Veteran has current diagnoses of hypertension and a chronic kidney disease, as evident from his treatment records The Board notes that service connection for diabetes mellitus is not in effect and the Veteran is not service connected for any other disorders other than hearing loss. Therefore, service connection for hypertension, or a kidney condition on a secondary basis is also not warranted. Moreover, there is no in-service event, injury, or disease to show the onset of a kidney disability or hypertension, nor were they shown within his first post-service year. Absent an in-service event, injury, or disease, the claims must fail. As the Board finds that the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel