Citation Nr: 18150646 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 12-01 205 DATE: November 15, 2018 ORDER Whether new and material evidence has been received to reopen the claim of service connection for lipomas, for accrued benefits purposes, is denied. Entitlement to service connection for hypertension, for accrued benefits purposes, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), for accrued benefits purposes, is denied. Entitlement to service connection for hepatitis C, for accrued benefits purposes, is denied. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicides, for accrued benefits purposes, is denied. FINDINGS OF FACT 1. By rating action dated in May 1982, the RO denied service connection for a skin disability (claimed as “lumps over my body”); the Veteran did not appeal this decision and new and material evidence was not received within the applicable appeal period. 2. Evidence received since the May 1982 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for lipomas and does not raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that GERD began during active service, or is otherwise related to an in-service injury, event, or disease. 5. The preponderance of the evidence is against finding that hepatitis C began during active service, or is otherwise related to an in-service injury, event, or disease. 6. The preponderance of the evidence of record is against finding that the Veteran had at any time during the appeal, a current diagnosis of peripheral neuropathy. CONCLUSIONS OF LAW 1. The unappealed May 1982 rating decision that denied service connection for a skin disability (claimed as “lumps over my body”) is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence not having been received, the claim of entitlement to service connection for lipomas is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for peripheral neuropathy, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1966 to July 1969. He died in March 2016. The appellant in this matter is his surviving spouse. In April 2016, the appellant filed a request for substitution of claimant, and in April 2017, she was accepted as the substitute claimant. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). VA regulations state that a Veteran who served in the Republic of Vietnam from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during that service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. In the case of such a Veteran, service incurrence for certain enumerated diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service. Included among those diseases is chloracne or other acneform diseases consistent with chloracne and early-onset peripheral neuropathy. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In order to establish service connection by presumption, based on herbicide exposure, such disease (except early-onset peripheral neuropathy) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). Early-onset peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent in service in order to qualify for presumptive service connection. See 38 C.F.R. § 3.307 (a)(6)(ii). 1. Whether new and material evidence has been received to reopen the claim of service connection for lipomas. Although a decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. “New” evidence means existing evidence not previously submitted to VA. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran’s original claim of entitlement to service connection for a skin disability (claimed as “lumps over my body”) was denied in a May 1982 rating decision. The Veteran did not timely file a notice of disagreement or perfect a substantive appeal, and new and material evidence with which to reopen the denied claim was not received within one year. In February 2010, the Veteran submitted a new claim of service connection for lipomas. The evidence of record at the time of the May 1982 rating decision had included the Veteran’s service treatment records which had not shown that he had manifested lipomas or any other skin condition during service. Subsequent to the May 1982 rating decision, in March 2010, the Veteran submitted a lay statement signed by himself and the appellant indicating that their primary care physician had suggested that they file a claim for lipomas. Private medical records from W. Hefferman, M.D., dated from 2004 to 2005 that show the Veteran’s skin was within normal limits. Similarly, private medical record from V. Marrone, M.D., dated from 2007 to 2010 show that the Veteran’s skin was within normal limits. Treatment records from The Heart Center dated from March 2012 to May 2013 show skin was within normal limits. VA outpatient treatment records dated from November 2001 to December 2015 show no treatment for any reported lipomas and skin was consistently noted to be within normal limits. The Board finds that the foregoing medical evidence does not constitute new and material evidence. While it is new, as it was not previously of record when the prior decision was made, it does not establish that the Veteran has a current skin disability manifested by lipomas that is the result of active service. Moreover, the additional evidence does not suggest that the Veteran had manifested chloracne or other acneform diseases consistent with chloracne. As such, the additional evidence is not material as it does not by itself, or when considered with previous evidence of record, relate to an un-established fact necessary to substantiate the claim. As such, the issue of service connection for lipomas may not be reopened, and the claim must be denied. 2. Entitlement to service connection for hypertension. The appellant contends that the Veteran had manifested hypertension as a result of his period of active service. In March 2010, the Veteran submitted a lay statement signed by himself and the appellant indicating that their primary care physician had suggested that they file a claim for hypertension. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of hypertension during the period on appeal, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not show that he was ever treated for or diagnosed with hypertension during his period of active service. Following service, private outpatient treatment records from the Hudson Valley Healthcare System dated from March 2010 to May 2010 reveal a diagnosis of hypertension, however, there is no evidence linking the Veteran’s current hypertension to his period of active service. Private outpatient treatment records from Dr. Marrone dated from 2007 to 2010 show that the Veteran had been prescribed medication for a diagnosis of hypertension. The records do not indicate that the diagnosed hypertension was etiologically related to the Veteran’s period of active service. Similarly, VA outpatient treatment records dated from November 2001 to December 2015 show intermittent treatment for symptoms associated with hypertension. There is no opinion provided that the hypertension was related to the Veteran’s period of active service. There is also no evidence of record that the Veteran had manifested hypertension to a compensable degree within one year following his discharge from active service. While the Veteran was competent to report that his hypertension was the result of active service, his reports are largely not credible due to inconsistency with the other evidence in the record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). While the Veteran and the appellant may believe that his hypertension is related to active service, the Board reiterates that the preponderance of the evidence weighs against such findings. Given the evidence against the claim, for the Board to conclude that the Veteran’s hypertension was incurred during active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). As the preponderance of the evidence is against the claim of service connection for hypertension, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for GERD. The appellant contends that the Veteran had manifested GERD as a result of his period of active service. In March 2010, the Veteran submitted a lay statement signed by himself and the appellant indicating that their primary care physician had suggested that they file a claim for GERD. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of GERD during the period on appeal, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not show that he was ever treated for or diagnosed with symptoms associated with GERD during his period of active service. Following service, the private outpatient treatment records from the Hudson Valley Healthcare System reveal a diagnosis of GERD, however, there is no evidence linking the Veteran’s current symptoms to his period of active service. Private outpatient treatment records from Dr. Marrone dated from 2007 to 2010 show that the Veteran had a history of GERD that was treated with medication. In 2008, he was noted to have had acute and viral gastroenteritis with dehydration that worsened his reflux symptoms then resolved. In 2010, it was noted that he had longstanding reflux disease with occasional breakthrough which was associated with dietary indiscretions, and it was recommended that he continue with an anti-reflux regimen. The records do not indicate that the diagnosed GERD was etiologically related to the Veteran’s period of active service. The VA outpatient treatment records dated from November 2001 to December 2015 show intermittent treatment for symptoms associated with GERD, however, there is no opinion suggesting that such disability was related to the Veteran’s period of active service. There is also no evidence of record that the Veteran had manifested peptic ulcer disease to a compensable degree within one year following his discharge from active service. While the Veteran was competent to report that his GERD was the result of active service, his reports are largely not credible due to inconsistency with the other evidence in the record. See Buchanan, 451 F.3d at 1336-37. While the Veteran and the appellant may believe that the GERD was related to active service, the preponderance of the evidence weighs against such findings. Given the evidence against the claim, for the Board to conclude that the Veteran’s GERD was incurred during active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33. As the preponderance of the evidence is against the claim of service connection for GERD, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for hepatitis C. The appellant contends that the Veteran had manifested hepatitis C as a result of his period of active service. In March 2010, the Veteran submitted a lay statement signed by himself and the appellant indicating that their primary care physician had suggested that they file a claim for hepatitis C. It was contended that the Veteran’s diagnosed hepatitis C was the result of air gun inoculations received during his period of active service. The question for the Board is whether the Veteran’s diagnosed hepatitis C began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of hepatitis C, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). Risk factors for hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. VA Adjudication Procedures Manual M21-1 (M21-1), Part III.iv.4.H.2.a (January 11, 2018). Additionally, a June 2004 VA Fast Letter addresses the alleged relationship between immunization with air gun injectors and hepatitis C infection. M21-1, Part III.iv.4.I.2.e (January 11, 2018). Specifically, that Fast Letter notes that transmission of the hepatitis C virus with air gun injections is “biologically plausible,” notwithstanding the lack of any scientific evidence documenting such relationship. A review of the Veteran’s service treatment records does not show that he was ever treated for or diagnosed with symptoms associated with hepatitis C during his period of active service. Following service, the private outpatient treatment records from the Hudson Valley Healthcare System reveal a diagnosis of hepatitis C, however, there is no evidence linking the Veteran’s current symptoms to his period of active service. Private outpatient treatment records from Dr. Marrone dated from 2007 to 2010 show that the Veteran had been treated for a history of hepatitis C. The records do not indicate that the diagnosed hepatitis C was etiologically related to the Veteran’s period of active service. The VA outpatient treatment records dated from November 2001 to December 2015 show intermittent treatment for symptoms associated with hepatitis C, to include a history of failed interferon therapy, however, there is no opinion suggesting that such disability was related to the Veteran’s period of active service. A VA medical opinion dated in July 2018 shows that the VA examiner reviewed the evidence of record, to include the assertions of the Veteran and the appellant, and concluded that it was less likely than not that the Veteran had hepatitis C that was related to active service, to include any air gun injections therein. The VA examiner explained that the Veteran had been diagnosed with hepatitis C in 2001 and after a review of his service treatment and outpatient treatment records there was no indication that he contracted hepatitis during his active service. The examiner stated the likelihood of contracting hepatitis from air gun injections was extremely low, if at all. The examiner cited to a medical journal for the opinion, explaining that there was not sufficient evidence showing exposure to hepatitis C risk factors during active service. The medically recognized risk factors for hepatitis C infection were said to include: (a) transfusion of blood or blood products before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (due to shared instruments); (g) high risk sexual activity (risk is relatively low); (h) intranasal cocaine use (due to shared instruments); (i) accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles and sharing of toothbrushes or shaving razors. There is also no evidence of record that the Veteran had manifested cirrhosis of the liver to a compensable degree within one year following his discharge from active service. The Board finds that July 2018 opinion of the VA examiner to be probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The appellant has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. While it has been suggested that it is biologically plausible to have a transmission of hepatitis C with air gun injections, the use of speculative language negates the legal adequacy of the relationship and renders such insufficient to substantiate a claim. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Perman v. Brown, 5 Vet. App. 237, 241 (1993); Obert, 5 Vet. App. at 33. To the extent that the Veteran and the appellant have argued that the hepatitis C is related to his in-service air gun inoculation, the Board finds that the etiology of hepatitis C is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis of hepatitis C, and/or the etiology thereof, cannot be made by a lay person without demonstrated expertise in medical matters and, therefore, they are not competent to render a medical etiology of hepatitis C in this case. Even if the Veteran or the appellant could provide a competent opinion as to etiology in this instance, the Board finds that the reasoned opinion of a medical professional is more probative than the lay assertion. The VA examiner has medical education, training, and expertise that neither the Veteran nor appellant had been shown to have. As the preponderance of the evidence is against the claim of service connection for hepatitis C, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicides. The appellant contends that the Veteran had manifested peripheral neuropathy as a result of his period of active service. In March 2010, the Veteran submitted a lay statement signed by himself and the appellant indicating that their primary care physician had suggested that they file a claim for peripheral neuropathy. The question for the Board is whether the Veteran had diagnosed peripheral neuropathy that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of peripheral neuropathy at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). A review of the Veteran’s service treatment records does not show that he was ever treated for or diagnosed with symptoms associated with peripheral neuropathy during his period of active service. Following service, both VA and private medical treatment records are silent for any diagnosis of peripheral neuropathy. Moreover, VA diabetes mellitus examination reports of record dated in May 2007 and July 2013 specifically indicate that the service-connected diabetes mellitus did not result in peripheral neuropathy. Moreover, a VA Agent Orange Peripheral Neuropathy Review Checklist dated in June 2014 shows that peripheral neuropathy is not identified. A VA medical opinion dated in July 2018 shows that the VA examiner reviewed the evidence of record, to include the assertions of the Veteran and the appellant, and concluded that it was less likely than not that the Veteran had peripheral neuropathy related to his period of active service, to include exposure to herbicides. The examiner explained that service and post-service treatment records were silent as to a diagnosis of either peripheral neuropathy or early onset peripheral neuropathy. While the Veteran and the appellant may have believed that he had peripheral neuropathy, they are not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The definition of a disability has been defined as an inability to pursue an occupation because of physical or mental impairment. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); see also Saunders v. Wilkie, No. 17-1466, slip op. at 13 (Fed. Cir. April 3, 2018) (“[D]isability... refers to functional impairment of earning capacity.”). The evidence of record does not show any diagnosis of peripheral neuropathy for VA purposes and without this, the claim cannot succeed. In the absence of post-service diagnosis of peripheral neuropathy, there can be no valid claim. As the preponderance of the evidence is against the claim of service connection for peripheral neuropathy, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel