Citation Nr: 18149288 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-20 689A DATE: November 9, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for hypertension is granted. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for fracture of the left cheek bone with residual nerve damage to the face is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for tinnitus is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for headaches is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for residuals of fracture of the left tibia is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for residuals of cerebral concussion is denied. Service connection for a disability manifested by a low potassium level is denied. Service connection for a disability manifested by gum and tooth sensitivity is denied. Service connection for a disability manifested by nose bleeds is denied. Service connection for scrotum damage is denied. Service connection for mesentery blood vessel damage is denied. Service connection for a disability associated with removal of appendix is denied. Service connection for a disability associated with gall bladder removal is denied. Service connection for benign prostatic hypertrophy (BPH) is denied. Service connection for right inguinal hernia is denied. REMANDED Entitlement to a rating in excess of 60 percent for ichthyosis vulgaris with superimposed eczema. Entitlement to a rating in excess of 20 percent for residuals of left ankle fracture. Entitlement to a rating in excess of 10 percent for residuals of left wrist fracture. Entitlement to a rating in excess of 10 percent for residuals, facial laceration scars. Entitlement to an initial rating in excess of 10 percent for generalized anxiety reaction. Entitlement to service connection for diabetes mellitus (DM) type II. Entitlement to service connection for peripheral neuropathy of the left upper extremity. Entitlement to service connection for peripheral neuropathy of the right upper extremity. Entitlement to service connection for peripheral neuropathy of the left lower extremity. Entitlement to service connection for peripheral neuropathy of the right lower extremity. Entitlement to service connection for diabetic foot sores. Entitlement to service connection for diabetic rashes. Entitlement to service connection for erectile dysfunction (ED). Entitlement to service connection for hypertension. Entitlement to service connection for blindness, secondary to glaucoma. Entitlement to service connection for a heart disability, to include grade 6 heart murmur, tachycardia, and left ventricular hypertrophy. Entitlement to service connection for a fatty liver. Entitlement to service connection for urinary incontinence. Entitlement to service connection for involuntary defecation. Entitlement to service connection for depressive disorder. Entitlement to service connection for gross dementia. Entitlement to a total disability rating due to individual unemployability (TDIU). REFERRED CLAIMS On behalf of the Veteran, the appellant has proffered facts and arguments pertaining to a spine disorder, respiratory disorder, hearing loss, diabetic retinitis, cataracts, coronary artery disease, and a vocal deficiency disorder. She has also asserted that he was exposed to asbestos in service and that this exposure, as well as or in the alternative to chemical and toxic fume exposure, caused the claimed respiratory disorder. Such claims have not been addressed by the RO and so are referred for appropriate action. FINDINGS OF FACT 1. The Veteran served on active duty from April 1970 to February 1975. 2. In an unappealed October 1977 rating decision, the claim of entitlement to service connection for hypertension was denied; the evidence received since the October 1977 rating decision is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim for service connection for hypertension. 3. The evidence received since a final July 1996 rating decision is both cumulative and redundant of the evidence of record at that time and does not raise a reasonable possibility of substantiating the claim for service connection for fracture of the left cheek bone with residual nerve damage to the face. 4. The evidence received since a final October 1996 rating decision is both cumulative and redundant of the evidence of record at that time and does not raise a reasonable possibility of substantiating the claim for service connection for tinnitus and headaches. 5. The evidence received since a final October 1996 rating decision is both cumulative and redundant of the evidence of record at that time and does not raise a reasonable possibility of substantiating the claim for service connection for tinnitus and headaches. 6. The evidence received since a final January 2002 rating decision is both cumulative and redundant of the evidence of record at that time and does not raise a reasonable possibility of substantiating the claim for service connection for residuals of fracture of the left tibia. 7. The evidence received since a May 2003 Board decision is both cumulative and redundant of the evidence of record at that time and does not raise a reasonable possibility of substantiating the claim for service connection for residuals of cerebral concussion. 8. Disabilities manifested by a low potassium level, gum and tooth sensitivity, nose bleeds, scrotum damage, and mesentery blood vessel damage are not currently shown. 9. Disabilities associated with removal of the appendix and removal of the gall bladder were not shown in service and are not etiologically related to service. 10. BPH was not shown in service and is not etiologically related to service. 11. Right inguinal hernia was not shown in service and is not etiologically related to service. CONCLUSIONS OF LAW 1. Subsequent to the final October 1977 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. Subsequent to the final July 1996 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for fracture of the left cheek bone with residual nerve damage. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 3. Subsequent to the final December 1996 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 4. Subsequent to the final December 1996 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 5. Subsequent to the final January 2002 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of fracture of the left tibia. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 6. Subsequent to the May 2003 Board decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of cerebral concussion. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1101 (2018). 7. A disability manifested by a low potassium level was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 8. A disability manifested by gum and tooth sensitivity was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 9. A disability manifested by nose bleeds was not incurred in service. 38 U.S.C. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 10. A disability manifested by scrotum damage was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). 11. A disability manifested by mesentery blood vessel damage was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 12. A disability associated with removal of the appendix was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 13. A disability associated with removal of the gall bladder was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 14. BPH was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 15. Right inguinal hernia was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has been found to be not competent. The appellant is his wife, who was appointed his fiduciary in October 2001. The August 2013 rating decision denied the claim of blindness as a due to glaucoma on the basis that new and material evidence had not been received since a March 1989 denial that had granted benefits for the disability for nonservice-connected pension purposes. However, a review of that decision reveals that a claim for service connection for blindness was not adjudicated on the merits. Further, a rating decision issued in October 1977 denied service connection for defective vision as due to refractive error, not loss of vision due to blindness. Therefore, the claim of entitlement to service connection for blindness, as due to glaucoma is an original claim for service connection and will only be addressed in the remand below. Claims to Reopen Based on New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Hypertension Service connection for hypertension was denied in an October 1977 rating decision on the basis of that hypertension was not shown in service and was not then of record. Subsequent treatment notes, however, reflect that the Veteran now has a diagnosis of hypertension. As this evidence goes to an element previously lacking from the claim, namely a current disability, it is both new and material. Therefore, reopening of the claim of entitlement to service connection for hypertension is warranted, and the appeal is granted to this extent.   Left Cheek The claim for fracture of the left cheek bone with residual nerve damage to the face was denied in July 1996 because the evidence showed that the in-service injury healed without residual disability. The scars associated with this injury are service-connected. The appellant argues that the in-service injury aggravated an injury of the face that the Veteran sustained in a childhood accident, but does not provide specific details as to a current disability. Moreover, the medical evidence does not present any findings of a disability of the left cheek bone, and so the evidence added to the record is both cumulative and redundant of the evidence of record in July 1996, and the application to reopen the claim is denied. Tinnitus and Headaches The claims for service connection for tinnitus and headaches were denied in a December 1996 rating decision on the basis that the evidence did not establish a chronic disability related to service. Since that decision, additional lay and medical evidence has been received, including private treatment records and the report of an August 2013 VA General Medical examination. While this evidence continued to show diagnosis of tinnitus and subjective history of headaches, it does not offer evidence that the tinnitus and headaches are etiologically a result of military service. The lay statements also discuss the Veteran’s complaints of these disorders, but do not offer any competent evidence in support of the claims that he has tinnitus and headaches due to service. Moreover, medical evidence documents some complaints of headaches, but the disorder has not been diagnosed. In light of these facts, new and material evidence has not been received to reopen the claims of entitlement to service connection for tinnitus and headaches and the appeal is denied.   Left Tibia Service connection for a left tibia disability was denied in a January 2002 rating decision on the basis that it was not shown in service and there was no nexus to an in-service disease, event, or injury. A review of the lay statements and medical records received since this decision does not establish that the Veteran has a left tibia disability that is associated with service. The appellant has also not offered any specific arguments in support of the claim. Therefore, new and material evidence has not been received to reopen the claim of entitlement to service connection for a left tibia disability, and the appeal is denied. Concussion The issue of entitlement to service connection for cerebral concussion was last denied in a May 2003 Board decision on the basis that the diagnosis of residuals of cerebral concussion was not of record. The evidence continues to show that the Veteran does not have residuals of the cerebral concussion. While he has dementia and an acquired psychiatric disorder, the evidence does not establish that any of his disabilities are a result of a head injury. Therefore, the application to reopen the previously denied claim for service connection for residuals of concussions is denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).   Low Potassium Level The Veteran has claimed entitlement to service connection for potassium problems. Treatment notes confirm that he has been diagnosed with hypokalemia (low potassium). See https://medlineplus.gov/ency/article/001179.htm. However, serum potassium level is a laboratory finding and, absent a diagnosed disorder in connection with that laboratory finding, is not a disability for which service-connected may be granted. Therefore, service connection for potassium problems is denied. Gum and Tooth Sensitivity, Nose Bleeds, Scrotum Damage, and Mesentery Blood Vessel Damage The Veteran, through his fiduciary, has described a myriad of symptoms associated with his gums, teeth, nose bleeds, scrotum damage, and mesentery blood vessel damage. However, both service treatment records and post-service medical records are silent for diagnosed disabilities associated with these symptoms. Thus, there is no disability for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the appeals are denied. Removal of Appendix and Gall Bladder, BPH, and Right Inguinal Hernia Private treatment notes reflect that the Veteran underwent an appendectomy in August 2006, during which part of his colon was also removed. He also contends that his gall bladder was removed as a result of the spread of gangrene from the appendix, although it is not clear from the treatment notes that his gall bladder was at any time actually removed. Post-service treatment notes also establish that he has been diagnosed with BPH and a right inguinal hernia, for which he underwent surgery in February 2010. However, service treatment records are silent for any complaint, treatment, or diagnosis associated with the appendix, gall bladder, BPH, and right inguinal hernia. There is also no competent opinion that the Veteran has a current disabling condition associated with either the removal of his appendix or gall bladder, BPH, or right inguinal hernia that is a result of service. Accordingly, the criteria for service connection are not met, and these claims are denied. Other Considerations The Board has considered the lay statements of the Veteran and the appellant that his claimed disabilities are a result of service. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The appellant also is competent to report symptoms she has witnessed. However, neither is competent to offer an opinion as to a diagnosis associated with his symptoms or the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In July 2018, the Veteran was afforded VA examinations to assess the current nature and severity of his service-connected skin, left wrist, left ankle, facial scar, and generalized anxiety reaction. The claims were not then adjudicated in a supplemental statement of the case (SSOC), and the appellant did not waive Regional Office review of this evidence. Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, amended 38 U.S.C. § 7105 to provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the appellant explicitly requests agency of original jurisdiction (AOJ) consideration. However, that provision only applies to evidence submitted by the appellant. Thus, she is not presumed to have waived RO consideration of the July 2018 VA examination reports, and the appeal must be adjudicated in a supplemental statement of the case with consideration of this additional evidence. The Veteran, through his fiduciary, has argued several disabilities as due to herbicide exposure in service, including diabetes mellitus type II and associated disabilities of peripheral neuropathy of the bilateral upper and lower extremities, diabetic foot sores and rashes, and prostate cancer. Further, an August 2006 private treatment note states that the Veteran was told by a VA physician that his heart murmur could be from Agent Orange exposure. He also has a pending appeal for service connection for erectile dysfunction due to nerve damage, but an alternative theory of entitlement for the disorder is as secondary to DM. Initially, the Veteran argued exposure to herbicides while stationed in New Hampshire, and such contention was developed and not established by military records. However, he has since argued that he was exposed to herbicides while stationed in Thailand because he flew missions to Vietnam. Thailand service was acknowledged in the November 2015 statement of the case (SOC), but the SOC relied on a November 2015 formal finding regarding the RO’s ability to confirm his Vietnam service, which does not address Thailand service. The Veteran’s military personnel records appear to be incomplete. His DD Form 214 for the period from April 1973 to February 1975 reflects 422 days of service in Thailand, but the service personnel documents of record do not otherwise reflect such service. Therefore, these issues are remanded so that the additional allegations of herbicide exposure may be assessed. Additionally, the Veteran, through his fiduciary, has extensively argued since at least 2002 that he has disabilities related to exposure to chemicals and/or nerve gas during service through chamber tests during basic training, a chemical leak at a building he guarded, unloading a chemical company tractor trailer and a chemical explosion and fire. These disabilities include blindness, involuntary urination and defecation, fatty liver, a heart disorder, and gross dementia. As with the Thailand service, such allegations have not been developed by the AOJ. Further, that he was engaged in fighting a building fire in July 1971 is at least confirmed by the military personnel records in the file. Therefore, these claims are also remanded. The RO did not reopen the Veteran’s claim for service connection for hypertension; thus, as the Board reopened that claim, this issue must be remanded so the RO may consider the claim on the merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Further, he has not been afforded a VA examination to assess the etiology of his hypertension. Therefore, the Board remands the claim for further development and AOJ consideration. Finally, the issue of entitlement to TDIU is inextricably intertwined with the pending claims for service connection and increased ratings. Therefore, the TDIU claim must also be remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to include his complete military personnel file (201 file). 2. Complete any necessary efforts to verify the circumstances of the Veteran’s Thailand service and any TDY service in Vietnam, including with the Joint Services Records Research Center (JSRRC). If it is not possible to verify the Veteran’s exposure to herbicides in connection with his Thailand service, enter a formal finding outlining all efforts to do so into the record. 3. Complete any necessary efforts to verify the Veteran’s exposure to chemicals and/or nerve gas during service through chamber tests during basic training, a chemical leak at a building the Veteran guarded, unloading a chemical company tractor trailer and a chemical explosion and fire, including with the JSRRC. If it is not possible to verify the Veteran’s exposure to chemicals and/or nerve gas or any of the in-service events described in lay statements, enter a formal finding outlining all efforts to do so into the record. 4. Schedule the Veteran for an examination to determine the etiology of his hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to any hypertension present during the period of the claim as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disorder originated during active service or is otherwise etiologically related to active service, to include any in-service exposure to herbicides, chemicals, nerve gas, or other activities and events described by the Veteran. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Readjudicate the issues on appeal. If the benefits sought on appeal is not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued to the appellant and she should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel