Citation Nr: 18152699 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 15-18 186 DATE: November 27, 2018 ORDER 1. The appeal to reopen a claim of service connection for hypertension is granted. 2. Whether new and material evidence has been received to reopen a claim of service connection for residuals of a right wrist injury is denied. 3. Whether new and material evidence has been received to reopen a claim of service connection for residuals of a left leg laceration is denied. 4. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability is denied. 5. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability is denied. REMANDED 7. Entitlement to service connection for hypertension is remanded. 8. Entitlement to a compensable rating for erectile dysfunction (ED) is remanded. 9. Entitlement to a compensable rating for left testicular torsion with complete atrophy is remanded. FINDINGS OF FACT 1. A November 1990 rating decision denied service connection for hypertension, finding that such disability was not shown. 2. Evidence received since the November 1990 rating decision shows that the Veteran has hypertension; relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension; and raises a reasonable possibility of substantiating such claim. 3. A November 1990 rating decision denied service connection for residuals of a right wrist injury on the basis that such disability was not shown. 4. Evidence received since November 1990 rating decision does not tend to show that the Veteran has a residuals of a right wrist injury in service; does not relate to an unestablished fact necessary to substantiate a claim of service connection for a residuals of a right wrist injury; and does not raise a reasonable possibility of substantiating such claim. 5. A November 1990 rating decision denied service connection for residuals of a left leg laceration on the basis that such disability was not shown. 6. Evidence received since November 1990 rating decision does not tend to show that the Veteran has a residuals of a left leg laceration in service; does not relate to an unestablished fact necessary to substantiate a claim of service connection for a residuals of a left leg laceration; and does not raise a reasonable possibility of substantiating such claim. 7. A March 2011 rating decision denied service connection for a low back disability, essentially on the basis that it was not shown to be related to service. 8. Evidence received since the March 2011 rating decision does not tend to relate the Veteran’s low back disability to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for a low back disability; and does not raise a reasonable possibility of substantiating such claim. 9. A March 2011 rating decision denied service connection for a left knee disability, essentially on the basis that it was not shown to be related to service. 10. Evidence received since the March 2011 rating decision does not tend to relate the Veteran’s left knee disability to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for a left knee disability; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for hypertension may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has not been received, and the claim of service connection for residuals of a right wrist injury may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has not been received, and the claim of service connection for residuals of a left leg laceration may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. New and material evidence has not been received, and the claim of service connection for a low back disability laceration may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. New and material evidence has not been received, and the claim of service connection for a left knee disability may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1976 to September 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision. The Veteran's service treatment records (STRs) show that in September 1977 he complained of right wrist pain after playing football. Examination found no swelling or deformity, and full range of motion. X-rays were negative. The assessment was contusion. In March 1978, his blood pressure was 122/86 and 134/90. In June 1978, he complained of headache, chest pain and weakness in the knees. There were no findings concerning the left knee. His blood pressure was 110/88. That month he said he was also told that he had high blood pressure. Later in June 1978, he reported pain in the third digit of the right hand. The impression was probable sprain, rule out fracture. In June 1978, he complained of a left lower leg contusion. A superficial abrasion was noted. X-rays of the lower left leg found no significant abnormality. In May 1979, the Veteran denied having high blood pressure. In July 1979, his blood pressure was 140/90. On service separation examination, his blood pressure was 98/68. A November 1990 rating decision denied service connection for hypertension, residuals of a right wrist injury and residuals of a left leg laceration. It was noted that the Veteran's STRs were negative for hypertension, and that there was no evidence of hypertension within one year following his discharge from service. It was also noted that left lower leg and right wrist injuries in service were acute and transitory, with no residuals shown. The Veteran was notified of the November 1990 rating decision and did not appeal it. In September 1991, he was notified that his claim was denied because he failed to report for a scheduled VA examination. On September 2010 VA knee examination, the Veteran stated that he injured his left knee in a motor vehicle accident while serving in Germany. X-rays showed degenerative arthritic changes. The diagnosis was left knee degenerative arthritis with instability. The examiner noted that the Veteran had apparently injured his knees in March 1979. He opined that it was at least as likely as not that the Veteran's left knee disability a continuation of the injury for which he was treated in service. VA outpatient treatment records show that in March 2010, the Veteran was assessed with hypertension and low back pain. In April 2010, he complained of low back and left knee pain. It was noted that March 2010 X-rays of the lumbosacral spine were normal. In November 2010, he reported that he injured his left knee in 1978 when it was caught between the bumper of two vehicles. He denied previous treatment. A March 2011 rating decision denied service connection for low back and left knee disabilities essentially on the basis that such disabilities were not shown to be etiologically related to service. The Veteran was notified of the March 2011 rating decision and did not appeal it. VA outpatient treatment records received in 2012 show that knee pain and hypertension were listed as active problems in June 2005. In October 2006, it was noted that 2003 left knee X-rays found minimal degenerative joint disease. Claims to reopen When there is a final denial on a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means 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 prior 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). The requirement that new and material evidence must raise a reasonable possibility of substantiating a claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. The appeal to reopen a claim of service connection for hypertension is granted. As the November 1990 final rating decision denied service connection for hypertension on the basis that such disability was not shown, for evidence received since to relate to an unestablished fact necessary to substantiate the claim (and be new and material), it would have to tend to show that the Veteran has hypertension (that may be related to his service). Evidence received since the November 1990 rating decision includes VA medical records showing that the Veteran has hypertension. This evidence bears directly on the unestablished fact necessary to substantiate the claim of service connection for hypertension, and considered with evidence previously of record raises a reasonable possibility of substantiating the claim. Therefore, the evidence is new and material, and the claim of service connection for hypertension may be reopened. 2. The appeal to reopen a claim of service connection for residuals of a low back disability is denied. 3. The appeal to reopen a claim of service connection for residuals of a left leg laceration is denied. 4. The appeal to reopen a claim of service connection for a low back disability is denied. 5. The appeal to reopen a claim of service connection for a left knee disability is denied. The Veteran did not appeal November 1990 or March 2011 rating decisions that denied service connection for these disabilities, and they became final. 38 U.S.C. § 7105. Consequently, new and material evidence to reopen these claims is required before they may be considered de novo. As the November 1990 rating decision denied service connection for residuals of a left leg laceration and residuals of a right wrist injury on the basis that injuries in service were acute and transitory and resolved without residuals, for evidence received since to relate to an unestablished fact necessary to substantiate the claims (and be new and material), it would have to tend to show that the Veteran has such current disabilities (that may be residuals of the injuries in service). Evidence received since the November 1990 rating decision includes VA outpatient treatment records. While these records show wrist pain as an active problem, the references are to the left [not right] wrist. There is no indication in the record that the Veteran now has disabilities that may be residuals of the right wrist injury and left leg laceration in service. Therefore, no evidence received since the November 1990 rating decision that denied service connection for residuals of a right wrist injury and a left leg laceration is new evidence that positively bears on the unestablished facts necessary to substantiate these claims (shows current disabilities that may be related to service). Accordingly, the Board finds that new and material evidence has not been received, and that the claims of service connection for a residuals of a right wrist injury or a left leg laceration may not be reopened. As the March 2011 rating decision denied service connection for low back and left knee disabilities based on findings that such disabilities were not shown to be related to service, for evidence received since to relate to unestablished facts necessary to substantiate the claims (and be new and material), it would have to tend to show that low back and left knee disabilities are etiologically related to the Veteran’s service. Evidence added to the record since the March 2011 rating decision includes extensive VA medical records, which show that the Veteran has low back and left knee disabilities. Nothing in these medical records suggests that either such disability is, or may be, etiologically related to his service. No evidence received since the March 2011 rating decision that denied service connection for low back and left knee disabilities is new evidence that positively bears on the unestablished facts necessary to substantiate the claims (shows that current low back or left knee disabilities may be related to the Veteran’s service). Accordingly, new and material evidence has not been received, and that the claims of service connection for low back and left knee disabilities may not be reopened. REASONS FOR REMAND 6. Service connection for hypertension. The Veteran's STRs show several elevated blood pressure readings. VA outpatient treatment records show that he now has hypertension, and there is some indication in the record of remote onset. On de novo consideration, an examination o ascertain the etiology of the Veteran's hypertension is necessary. 7. Entitlement to a compensable rating for ED. 8. Entitlement to a compensable rating for left testicular torsion with complete atrophy. VA outpatient treatment records show that the Veteran was seen in a urology clinic in July 2014. It was noted that a recent ultrasound found surgical absence of the left testis. The Veteran’s most recent examination to assess his genitourinary disabilities was in February 2011. Considering the allegation of increased disability, a contemporaneous examination to assess the severity of these disabilities is necessary. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he received for hypertension since discharge from service, and for ED and left testicular torsion since 2015, and to submit authorizations for VA to secure records for any private evaluations and treatment. Obtain all outstanding records of the evaluations and treatment from the providers identified. 2. Then arrange for an examination of the Veteran by an appropriate physician to determine the etiology of his hypertension. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is etiologically related to his service/elevated blood pressure readings therein. The examiner must include rationale with all opinions. 3. Arrange for a urology examination of the Veteran to ascertain the severity of his ED and left testicular torsion. All symptoms of, and functional impairment due to such disabilities should be described in detail. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel