Citation Nr: 18151294 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-38 823 DATE: November 16, 2018 ORDER New and material evidence having not been received, the application to reopen a claim for service connection for allergic contact dermatitis is denied. Service connection for a heart disability is denied. Service connection for a rash is denied. Service connection for diabetes mellitus type 2 is denied. FINDINGS OF FACT 1. A February 2006 rating decision denied a claim for service connection for allergic contact dermatitis. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. 2. New evidence raising a reasonable possibility of substantiating the claim for service connection for allergic contact dermatitis has not been received. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a heart disability. 4. The preponderance of the evidence is against finding that the Veteran’s rash, diagnosed as psoriasis, began during active service, or is otherwise related to an in-service injury, event, or disease. 5. The Veteran’s diabetes mellitus type 2 did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The February 2006 rating decision that denied a claim for service connection for allergic contact dermatitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for allergic contact dermatitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a rash have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1112 (chronic diseases), 1113 (rebuttable, intercurrent causes), 1131 (peacetime), 1137 (wartime presumptions), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Application to Reopen Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “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 be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). 1. Allergic contact dermatitis The claim for service connection for allergic contact dermatitis was originally denied in a February 2006 rating decision. The claim was denied because while there was evidence of treatment for allergic contact dermatitis in service, there was no evidence of current disability. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. There is no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue. 38 C.F.R. § 3.156(b) (2018). Thus, the decision became final. The pertinent evidence received since the February 2006 denial includes private medical records, a VA skin diseases examination report, and statements from the Veteran regarding his disability. While the private medical records are new and show that he has a history of psoriasis, a claim for service connection for which will be addressed later, they do not show that he has allergic contact dermatitis or any residuals thereof. Therefore, while new, the evidence is not material. While the VA examination report is new and shows that he has psoriasis, it does not show that he has allergic contact dermatitis or any residuals thereof. Therefore, while new, the evidence is not material. The Veteran’s statements asserting that he has had recurrences of allergic contact dermatitis since service were previously of record and considered at the time of the prior denial. Therefore, the evidence is redundant and is not new evidence. In sum, while evidence of psoriasis has been received, no evidence of allergic contact dermatitis has been received. The Board thus finds that the new evidence does not help to establish that the Veteran currently has allergic contact dermatitis that had its onset in service or is otherwise related to service. Therefore, the new evidence, even when considered credible for the purpose of determining whether it is material, does not create a reasonable possibility of substantiating the claim and therefore the new evidence is not material. The Board concludes that new and material evidence has not been received to reopen the claim for service connection for allergic contact dermatitis. Thus, the claim remains denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including hypertension and diabetes mellitus, if the disease manifested to a compensable degree within the year after active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). 2. Service connection for a heart disability While the Veteran asserts that he has a heart disability related to active service, the objective evidence of record fails to show that he has a current heart disability. Service treatment records do not show any complaints, findings, or diagnoses of a heart problem. Post service, a July 2008 private medical record shows a history of hypertension since 1998 and that chest x-ray and EKG were both normal. A May 2009 private medical record indicates that the Veteran was following up for a recent episode of pericardial effusion and that examination at that time was normal. An undated private medical record shows that a 2011 EKG and 2012 chest x-ray were both normal and that the Veteran was being treated for hypertension. In a July 2011 authorization form, the Veteran indicated that he underwent surgery for pleural effusion in 2008 and was taking Carvedilol, which the Board observes is used to treat hypertension. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1131 (2012). In the absence of proof of present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a heart disability. As there is no disability that can be related to service, the claim for service connection for a heart disability must be denied. The Board notes that the Veteran is competent to give evidence about observable symptoms such as chest pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to self-diagnose a heart disability as that requires special diagnostic testing, which in this case was negative. In conclusion, service connection for a heart disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To the extent the Veteran is asserting that his hypertension is related to active service, the service treatment records do not show any complaints, findings, or diagnoses of hypertension or elevated blood pressure and there is no objective evidence of hypertension until July 2008. While the Veteran has indicated that he was diagnosed with hypertension in 1998, that still dates the onset of the disorder to 18 years after discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, there is no competent medical evidence linking his hypertension to active service. Thus, service connection for hypertension is also not warranted. 3. Service connection for a rash The Veteran asserts that he has a rash due to in-service exposure to paint and paint fumes. The Board notes that the facts of this claim are the same as those of the underlying claim for service connection for allergic contact dermatitis that was the subject of the application to reopen. However, as the record shows a new diagnosis, that of psoriasis, the Board will consider this claim on a de novo basis. Service treatment records show that the Veteran was treated for symptoms of a rash and swelling of the face that were diagnosed as allergic contact dermatitis attributed to paint and paint fumes. However, there is no mention of psoriasis. Post service, a July 2008 private medical record shows a history of intermittent psoriasis. On a July 2011 authorization form, the Veteran stated that the psoriasis does not have the same appearance or occur in the same locations as the dermatitis. At a May 2013 VA examination, the Veteran reported that while in service he developed a rash and an allergic reaction to epoxy paint and was diagnosed with contact dermatitis. He stated that he now has a rash he believes is caused from service. He also noted that he has been diagnosed with psoriasis. The examiner provided a diagnosis of psoriasis and opined that the disorder was not caused by or a result of an in-service event. The examiner explained that while the Veteran was treated for contact dermatitis in service, there is no mention of psoriasis in service and they are two different skin conditions with different causes. Given the above, the preponderance of the evidence is against finding that the Veteran’s rash, diagnosed as psoriasis, began during active service, or is otherwise related to an in-service injury, event, or disease. There is no objective evidence of psoriasis in service or for many years thereafter. Maxson, 230 F.3d 1330. While the Veteran asserts that he has a skin disorder related to the paint from service, he has also acknowledged that the psoriasis is different from that disorder, which was diagnosed as allergic contact dermatitis. Moreover, a VA examiner has opined that the Veteran’s psoriasis is not related to his paint exposure or allergic contact dermatitis diagnosed in service. The Board notes that the Veteran as a lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of his psoriasis to over two decades after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. In conclusion, service connection for a rash, diagnosed as psoriasis, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 4. Service connection for diabetes mellitus type 2 The Veteran asserts that he has diabetes mellitus type 2 related to active service, to include the service diet high in sugar and exposure to paint and paint fumes on the submarine. He also asserts that while he did not serve in the Republic of Vietnam during the Vietnam Era, he should nevertheless be afforded the presumption of service connection. Service treatment records do not show any complaints, findings, or diagnoses of diabetes or elevated blood glucose levels. On a June 2011 application for compensation, the Veteran indicated that he was diagnosed with diabetes in 1998. A July 2008 private medical record shows a history of diabetes since 1998. In a July 2011 authorization form, the Veteran indicated that he may have been treated for diabetes as early as 1990. Given the above, the Veteran’s diabetes mellitus type 2 did not manifest to a compensable degree within the applicable presumptive period and continuity of symptomatology is not established. With no competent medical or lay evidence linking his diabetes to service, it is not otherwise etiologically related to an in-service injury, event, or disease. While the Board is sympathetic to the Veteran’s situation, the Board is bound by VA regulations which only allow for presumptive service connection for certain diseases among certain Veterans groups. The Board again notes that the Veteran as a lay person is competent to address the etiology of a disability in some limited circumstances. Jandreau, 492 F.3d 1372. In this case, however, the record dates the onset of his diabetes to at least a decade after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. Lastly, although an examination or opinion was not obtained in this case, VA was not under an obligation to provide one, as such is not necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). The record is absent any evidence of diabetes in service or for many years thereafter. Aside from the Veteran’s lay statement asserting that his diabetes is related to service, there is no evidence indicating a link between his diabetes and service. In conclusion, service connection for diabetes mellitus type 2 is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel