Citation Nr: 18149273 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-06 662 DATE: November 9, 2018 ORDER The petition to reopen a claim of service connection based on new and material evidence for blindness, including as due to type II diabetes mellitus (DM2) as due to herbicide agent exposure, is denied. The petition to reopen a claim of service connection based on new and material evidence for heart disorder, including as due to herbicide agent exposure and as due to DM2 as due to herbicide agent exposure, is denied. The petition to reopen a claim of service connection based on new and material evidence for hypertension, including as due to herbicide agent exposure and as due to DM2 as due to herbicide agent exposure, is denied. The petition to reopen a claim of service connection based on new and material evidence for DM2 as due to herbicide agent exposure is denied. The petition to reopen a claim of service connection based on new and material evidence for cerebrovascular accident (stroke) residuals, to include as due to herbicide agent exposure and as due to DM2 as due to herbicide agent exposure, is denied. The petition to reopen claim of service connection based on new and material evidence for an acquired mental disorder other than PTSD, to include schizophrenia, is denied. The petition to reopen a claim of service connection based on new and material evidence for PTSD is denied. Entitlement to service connection for kidney disease is denied. FINDINGS OF FACT 1. An August 2008 Board decision denied entitlement to service connection for DM2 and a heart disorder as due to DM2 due to herbicide agent exposure. The Veteran appealed the Board decision, and a February 2010 Memorandum Decision of the Court of Appeals for Veterans Claims (Court) affirmed the Board decision. 2. The evidence added to the record since the August 2008 Board decision does not trigger additional assistance to the Veteran or raise a reasonable possibility of proving the heart disorder claim. 3. An April 2010 rating decision denied entitlement to service connection for blindness. The Veteran did not appeal the decision. 4. The evidence added to the record since the April 2010 rating decision does not trigger additional assistance to the Veteran or raise a reasonable possibility of proving the blindness claim. 5. A December 2011 rating decision denied entitlement to service connection for stroke residuals as due to DM2, and determined that new and material evidence had not been received to reopen prior claims of entitlement to service connection for acquired mental disorder other than PTSD, to include schizophrenia; PTSD; blindness (claimed as vision impairment); DM2 as due to herbicide agent exposure; and hypertension, as due to DM2. 6. The Veteran did not appeal the December 2011 rating decision. 7. The evidence added to the record since the December 2011 rating decision does not trigger additional assistance to the Veteran or raise a reasonable possibility of proving either the mental disorder other than PTSD, PTSD, blindness, DM2, or hypertension as due to DM2 claim. 8. The weight of the evidence of record is against a finding that kidney disease had its onset in active service or within one year of active service, or that it is otherwise causally connected to active service. CONCLUSIONS OF LAW 1. The August 2008 Board decision that denied entitlement to service connection for a heart disorder is final. 38 U.S.C. § 7105, 7252, 7291 (West 2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence to reopen a claim of entitlement to service connection for a heart disorder has not been received, and the petition to reopen is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The April 2010 rating decision denied entitlement to service connection for blindness is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.302. 4. New and material evidence to reopen a claim of entitlement to service connection for blindness has not been received, and the petition to reopen is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The December 2011 rating decision that denied entitlement to service connection for stroke residuals as due to DM2, and determined that new and material evidence had not been received to reopen prior claims of entitlement to service connection for acquired mental disorder other than PTSD, to include schizophrenia; PTSD; blindness (claimed as vision impairment); DM2 as due to herbicide agent exposure; and hypertension, as due to DM2 is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.302. 6. New and material evidence to reopen a claim of entitlement to service connection for stroke residuals as due to DM2, and determined that new and material evidence had not been received to reopen prior claims of entitlement to service connection for acquired mental disorder other than PTSD, to include schizophrenia; PTSD; blindness (claimed as vision impairment); DM2 as due to herbicide agent exposure; and hypertension has not been received, and the petition to reopen is denied. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.203. 7. The criteria for entitlement to service connection for kidney disease have not been met. 38 U.S.C. § 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had verified active service from May 1961 to May 1964. From 1978 to July 1990 he was a member of the California Army National Guard (CAARNG). Service Connection Applicable Legal Requirements Generally, to establish a right to service connection, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Cardiovascular-renal disease, including hypertension, stroke, psychoses, DM2, and organic disease of the central nervous system, including glaucoma, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was “noted” during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence, of a nexus between the present disability and the post-service symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for DM2, including as due to herbicide agent exposure; blindness, a heart disorder, hypertension, and stroke residuals, including as due to DM2 and DM2 due to herbicide agent exposure. In September 1996, the Veteran applied for VA compensation for schizophrenia, DM2, a heart disorder, and a general mental condition. His application noted onset of DM2 and the heart disorder in 1961. See 09/04/1996 VA 21-526. Except for the orthopedic examination, the Veteran failed to report for the other examinations arranged to develop his claim. See 10/15/1996 Share Print Screen. A February 1997 rating decision reflects that the rating board considered service treatment records (STRs) for the period May 1961 to May 1964 and non-VA treatment records. The STRs showed no entries related to complaints or symptoms of, or treatment for diabetes. At his examination for separation from active service, the Veteran indicated a negative history on his March 1964 Report of Medical History for the disorders he claimed. See 11/19/2013 STR-Medical, 1st Entry, P. 52. The March 1964 examination report reflects that the Veteran’s heart, cardiovascular and endocrine systems were all normal; his sugar was negative, and his blood pressure was 120/70. Id., P. 2. VA records noted a history of DM2 from the early 1990s. The rating board determined that the claimed disorders had onset several years after the Veteran’s active service, and that there was no evidence of a causal connection to active service. See 02/07/1997 Rating Decision. The RO notified the Veteran of the decision that same month. See 02/28/1997 Notification. The Veteran did not appeal the decision. Nonetheless, the RO received additional evidence within one year of the February 1997 rating decision in conjunction with the Veteran’s application for VA compensation for hearing voices. At that time the Veteran also reported a history of having served in the Republic of Vietnam (RVN) for five years. Id., P. 4. In May 2002, the Veteran again applied to reopen the claims for DM2, and a heart disorder. He also filed an initial application for hypertension and blindness, all as due to claimed presumed exposure to herbicide agents in RVN (05/21/2002 VA 21-4138). See 38 C.F.R. §§ 3.307(a), 3.309(e), 3.317. The September 2002 rating decision reflects that the rating board considered the STRs, responses from the National Personnel Records Center (NPRC), and VA records, including an Agent Orange Protocol examination. The latter noted that the Veteran reported that he stopped working full time in 1997 due to his failing vision, and that his hypertension was likely due to his DM2. The NPRC informed the RO that there was no evidence in the Veteran’s service records that he ever served in RVN. Hence, the RO denied the claim on a presumptive and direct basis. Concerning the Veteran’s blindness, the rating board determined that the STRs noted manifestation solely of refractive error, which is a congenital condition not subject to service connection, and that the Veteran’s loss of vision started several years after his active service. See 09/09/02 Rating Decision-Narrative 04/22/2010; Rating Decision-Narrative. The Veteran perfected an appeal of the decision. See 11/04/2002 21-4138; 07/03/2003 SOC; 08/29/2003 VA Form 9. In support of his appeal, the Veteran submitted a Buddy Statement from one C.W., who claimed that he was a Sergeant Major in the Army, and that he served with the Veteran in RVN from 1968 to 1970. At a Board hearing, the Veteran testified as he had asserted in written submissions: after his discharge from the Army in 1964, he was recalled, retrained, and then sent to RVN. He was told that records of his service were burned but later was told that they were accidentally shredded. He testified further that he was in RVN in the Special Forces for five years where he performed duty as a driver, sniper, and machine gunner. He also testified that he had been in the CAARNG. See 03/17/2006 Hearing Testimony. The Board reopened the DM2 claim and remanded it, and the claim based on claimed herbicide agent exposure, with instructions that all of the Veteran’s military personnel and medical records be obtained and made a part of the record. See 05/04/2006 Remand BVA or CAVC. While the case was on remand, the NPRC confirmed that there were no Service Department records that showed evidence that the Veteran served in RVN. Further, neither did any of his CAARNG records note such service. Also added to the record was a November 2005 opinion from the Veteran’s treating VA physician, Dr. C, to the effect that the Veteran’s disabilities were likely due to his claimed exposure to Agent Orange while in RVN. See 11/29/2012 Government Facility. In an August 2008 decision, the Board determined that: DM2 did not manifest during the Veteran’s active service or within any applicable presumptive period; the veteran did not present competent evidence to support his assertions that he performed active service in RVN during the Vietnam Era while on active duty; the currently diagnosed DM2 was not shown to be associated with any event or incident of the Veteran’s service; no competent evidence was presented to show that hypertension, bilateral loss of eyesight, heart condition, or a systemic condition was due to any event or incident of the Veteran’s active service or was caused or aggravated by a service-connected disability; and, the Veteran did not serve during a period of war. (Emphasis added). See 08/04/2008 BVA Decision. Board decisions are final when issued. See 38 C.F.R. § 20.1100. Nonetheless, the Veteran appealed the decision to the Court. See 09/25/2008 Third Party Correspondence. In a February 2010 Memorandum Decision, the Court affirmed the Board’s 2008 decision. The basis of the Court’s affirmation will be addressed later in this decision, as it disposes of the Veteran’s current appeal in his efforts to reopen the claims based on claimed herbicide agent exposure. VA received the Veteran’s current application to reopen the claims in February 2012. See 02/06/2012 VA 21-526. New and Material Evidence When a claim is disallowed and becomes final, the claim will not be reopened except as provided by applicable regulation. If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. 5108; 38 C.F.R. 3.156(a). “New” evidence means more than evidence that has not previously been included in the claims folder. The evidence, even if new, must be material, in that it is evidence not previously of record that relates to an unestablished fact necessary to establish the claim, and which by itself or in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim. 38 C.F.R. 3.156(a). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a “low threshold.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence added to the claims file since the August 2008 Board decision consists of the Veteran’s treatment records for his disorders, and his hearing testimony at the June 2018 Board hearing. See 06/07/2018 Hearing Testimony. Concerning the Veteran’s records of the treatment and maintenance of his disorders, they include certification of the fact that he is legally blind. See 11/29/2012 Government Facility, P. 2. Such records, while new in the sense that they were not before the Board in 2008, are not material, as they are redundant in the absent of relevant evidence of a nexus with active service. See Morton v. Principi, 3 Vet. App. 508, 509 (1992) (per curiam) (stating that medical records describing veteran’s current condition are not material to issue of service connection and are not sufficient to reopen claim for service connection based on new and material evidence.). The Board also notes several opinions from Dr. C, indicating that the Veteran’s DM2 is likely related to exposure to Agent Orange. As noted, his opinion was of record at the time of the 2008 Board decision. Hence, Dr. C’s opinion relevance is dependent of the state of the record as the Board found it in 2008. The Veteran’s hearing testimony was essentially the same as it was in 2006, and the state of the relevant evidence is also the same: there are no Service Department records to the effect that the Veteran served during a period of war, let alone in RVN, and this is the critical missing piece in his effort to reopen the claims, Shade notwithstanding. It is acknowledged that Board decisions are not precedential, but in certain instances they are applicable. See 38 C.F.R. § 20.1303. As the Board noted earlier, the evidence the Veteran relied on in the prior iteration of his claim was his and Mr. W’s lay testimony that he served in RVN. The August 2008 Board decision did not address the credibility of either the Veteran’s lay testimony or Mr. W’s lay statement. Instead, the Board determined that the Veteran did not produce any competent evidence to support his assertions that he served in RVN, and that efforts by VA to obtain verifying records were fruitless, as the NPRC advised that there were not any. On appeal, the Veteran argued that the Board should have addressed the credibility of the lay evidence to determine if it was sufficient. The Court affirmed the Board’s determination that lay testimony is not contemplated by the regulations governing evidence of service. See 38 C.F.R. § 3.203. The state of the record has not changed with regard to the Veteran’s claims based on claimed exposure to herbicide agents. His service records, to include his CAARNG MPRs, do not show evidence that he ever served in RVN, or that he served during any other period of war. As noted, the Veteran did not join the CAARNG until 1978. The Veteran is still attempting to show this critical element by his lay testimony and the resubmission of a previously considered Buddy Statement. The Board, as affirmed by the Court, previously held that such evidence is not competent to establish military service. Hence, the Board is constrained to find that new and material evidence has not been received to reopen the claims based on exposure to herbicide agents. 38 C.F.R. § 3.156. The December 2011 rating decision noted the absence of any entries in the STRs showing complaints of or treatment for any symptoms that were stroke related. The Veteran’s neurologic area was assessed as normal when he separated from active service. See 11/19/2013 STR-Medical, 1st Entry, P. 2. Also considered were records dated in October 1994 that noted evidence of a probable stroke. See 09/12/1996 Government Facility, P. 6. A VA examination report reflects a diagnosis of status post-stroke with residual right upper and right lower extremity weakness and slight foot drop. See 11/04/1996 VA Examination, 2nd Entry. The rating decision determined that the Veteran’s stroke manifested several years after his active service, and that there was no causal connection with active service. See 12/20/2011 Rating Decision-Narrative. The state of the record has not changed regarding the Veteran’s stroke residuals, as none of the evidence added to the file addresses a connection with active service. Hence, the Board is constrained to find that new and material evidence has not been received to reopen the claims based on exposure to herbicide agents. 38 C.F.R. § 3.156. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired mental disorder other than PTSD, to include schizophrenia. The general requirements for service connection set forth earlier are incorporated here by reference. The February 1997 rating decision, in denying the claim, relied on the fact that the STRs reflected no entries related to complaints or symptoms of, or treatment for an acquired mental disorder. At his examination for separation from active service, the Veteran indicated a negative history on his March 1964 Report of Medical History for the disorders he claimed. See 11/19/2013 STR-Medical, 1st Entry, P. 52. The March 1964 examination report reflects that the Veteran’s psychiatric area was assessed as normal. Id., P. 2. VA records noted a history of DM2 and depression from the early 1990s. The rating board determined that there was no current diagnosis of schizophrenia, and that it had onset several years after the Veteran’s active service, and that there was no evidence of a causal connection with active service. See 02/07/1997 Rating Decision. The RO notified the Veteran of the decision that same month. See 02/28/1997 Notification. The Veteran did not appeal the decision. Nonetheless, the RO received additional evidence within one year of the February 1997 rating decision in conjunction with the Veteran’s application for VA compensation for hearing voices. VA records dated in November 1993 noted a diagnosis of major depression with psychotic features. See 12/18/1997 Medical Treatment-Government Facility, 2nd Entry, P. 11. Non-VA records dated in October 1997 noted the Veteran’s report that he had been hearing voices over the prior two weeks that told him to hurt others. The entry notes a past diagnosis of schizophrenia in 1982. The Discharge Summary notes diagnoses of psychosis not otherwise specified (NOS), major depression with psychotic features, and adjustment disorder with depressed mood. The examiner noted that the diagnosis of schizophrenia was 16 years earlier, and that the disorder was asymptomatic. See 12/18/1997 Medical Treatment-Non-Government Facility, 1st Entry, P. 1, 37. A June 1998 rating decision determined that new and material evidence to reopen a claim for schizophrenia had not been received, as there was no in-service evidence of the disorder or a nexus with active service. See 06/20/1998 Rating Decision-Narrative. The RO notified the Veteran of the decision that same month. See 06/27/1998. The Veteran did not appeal the June 1998 rating decision, nor was additional evidence received on it within one year. Hence, it and the February 1997 rating decision became final. See 38 C.F.R. §§ 3.156, 20.302. The December 2011 rating decision determined that only general treatment records had been added to the claims file, not any evidence that indicated that a mental disorder other than PTSD had onset in active service or was causally connected to active service. The evidence added to the record since the December 2011 rating decision consists of the same. While new, such records are not material as they are redundant. Morton, 3 Vet. App. 508, 509. Hence, the Board finds that new and material evidence has not been received to reopen the claim. 38 C.F.R. § 3.156. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for PTSD. In July 1998, the Veteran applied for VA compensation for PTSD. See 07/30/1998 VA 21-4138. In addition to the general principles for service connection set forth earlier, which are incorporated here by reference, PTSD requires specific evidence of a diagnosis of PTSD that conforms with the criteria of the Diagnostic and Statistics Manual, and a link to a verified in-service stressor. See 38 C.F.R. § 3.304(f). No evidence of a diagnosis of PTSD or a claimed stressor was received. An August 1998 rating decision denied the claim, and the Veteran was notified that same month. See 08/07/1998 Rating Decision-Narrative; 08/28/1998 Notification. The Veteran did not appeal the decision, nor was additional evidence received on it within one year. Hence, it became final. See 38 C.F.R. §§ 3.156, 20.302. The evidence added to the record since the December 2011 rating decision addresses only the Veteran’s general treatment. There still is no evidence of a confirmed diagnosis of PTSD or evidence of a claimed stressor. Since as noted earlier that the state of the evidence is that the Veteran did not serve in RVN, or any other area during a period of war, he cannot rely on the relaxed standard of 38 C.F.R. § 3.304(f)(3), fear of hostile military or terrorist activity. Thus, evidence of a specific stressor is needed. Hence, the Board finds that new and material evidence has not been received to reopen the claim. 38 C.F.R. § 3.156. 4. Entitlement to service connection for kidney disease. The legal requirements for service connection set forth earlier are incorporated here by reference. VA records dated in 2012 note the presence of chronic kidney disease likely due to the Veteran’s hypertension and DM2 which progressed to end stage renal disease. See 09/21/2012 Non-Government Facility, P. 170; 08/03/2018. Hence, the first requirement for service connection is shown by the evidence, a currently diagnosed kidney disorder. (Continued on the next page)   The Board notes that an examination was not conducted in conjunction with this claim; but the Board finds that the competent medical evidence of record is sufficient to decide the claim. Hence, the Veteran was not prejudiced by the absence of a VA examination. See 38 C.F.R. § 3.159(c)(4). STRs contain no entries related to complaints of or treatment for kidney-related complaints. At separation in 1964 he denied any prior history of kidney stone or blood in the urine, and the Veteran’s albumin was negative. See 11/19/2013 STR-Medical, 1st Entry, P. 2, 52. The weight of the evidence of record fails to show that the Veteran’s kidney disorder manifested in active service or within one year of active service. Rather, the record reflects onset decades afterward. Further, there is no evidence of a causal connection with active service or a service-connected disability. Hence, the Board is constrained to deny the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder