Citation Nr: 18153567 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-24 701 DATE: November 28, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disability (previously claimed as biventricular hypertrophy) is denied. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gout (claimed as hyperuricemia) is denied. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability is denied. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a respiratory disability, to include COPD and emphysema, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A March 2014 Board decision denied service connection for a heart disability, and that decision is final. 2. Evidence associated with the record since the March 2014 Board decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for a heart disability, and does not raise a reasonable possibility of substantiating the claim. 3. A March 2014 Board decision denied service connection for gout, and that decision is final. 4. Evidence associated with the record since the March 2014 Board decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for gout, and does not raise a reasonable possibility of substantiating the claim. 5. A March 2014 Board decision denied service connection for a right knee disability, and that decision is final. 6. Evidence associated with the record since the March 2014 Board decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for a right knee disability, and does not raise a reasonable possibility of substantiating the claim. 7. A March 2014 Board decision denied service connection for a left knee disability, and that decision is final. 8. Evidence associated with the record since the March 2014 Board decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for a left knee disability, and does not raise a reasonable possibility of substantiating the claim. 9. The preponderance of the evidence weighs against a finding that any currently diagnosed respiratory disability, to include COPD and emphysema, is related to any incident of service, or manifested to a compensable degree within one year following separation from service. 10. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The March 2014 Board decision that denied service connection for a heart disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. As new and material evidence has not been received, the claim for service connection for a heart disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The March 2014 Board decision that denied service connection for gout is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. As new and material evidence has not been received, the claim for service connection for a gout disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The March 2014 Board decision that denied service connection for a right knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. As new and material evidence has not been received, the claim for service connection for a right knee disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The March 2014 Board decision that denied service connection for a left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 8. As new and material evidence has not been received, the claim for service connection for a left knee disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The criteria for entitlement to service connection for a respiratory disability, to include COPD and emphysema have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 10. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The Veteran testified before the undersigned Veterans Law Judge in April 2018. A transcript of the hearing has been associated with the record. 1. Whether new and material evidence has been received for entitlement to service connection for a heart disability, gout, a right knee disability, and a left knee disability Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Generally, VA rating decisions that are not timely appealed are final. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. §§ 5108, 7105. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A March 2014 Board decision denied service connection for a heart disability, gout, and a bilateral knee disability because the evidence did not show that the disabilities manifested during service or were linked any in-service injury or event. A February 2001 VA examination report found the Veteran was a smoker and had a heart murmur since the 1980s. A December 2001 VA examination report noted the Veteran complained of a bilateral knee pain for the previous three years. A June 2013 VA examiner reported diagnoses of atherosclerotic cardiovascular disease, and osteoarthritis and gout in the knees without an etiology opinion. The Veteran was notified of the decision and his appellate rights by letter dated March 14, 2014. The Veteran submitted a motion for reconsideration that was denied in June 2014. The March 2014 Board decision was not vacated. Therefore, the March 2014 Board decision became final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.160, 20.1100. The evidence added to the claims file subsequent to the March 2014 Board decision includes additional private records, and statements from the Veteran. Pertinent to the current claim, the additional records show that the Veteran has diagnoses of cardiovascular disease, osteoarthritis, and degenerative changes in the knees. However, none of the additional records submitted indicate or suggest that the current diagnoses are linked to service. Therefore, the additional records are cumulative of those already considered at the time of the previous final denial. The records submitted by the Veteran reiterate that the Veteran currently experiences the claimed disabilities, but that was already established at the time of the previous denial. Thus, as they are cumulative, the treatment records cannot be new and material. Anglin v. West, 203 F.3d 1343 (2000). All of the statements from the Veteran, including his April 2018 testimony, reiterate the previously considered assertion that he believes disabilities are related to service. Therefore, those statements merely reiterate contentions that were previously considered by the March 2014 Board decision. Thus, those statements are cumulative and are not material evidence. The Board finds the evidence added to the claims file since the March 2014 Board decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which demonstrates that currently diagnosed heart disability, gout, and bilateral knee disabilities are related to an in-service incident, which was the basis for the prior determination. The evidence added to the record also does not include any new competent and credible evidence showing any continuity of symptomology from service onward. The Veteran’s lay statements are merely redundant of the evidence previously considered, and the medical reports, while showing current diagnoses for atherosclerotic cardiovascular disease, gout, and osteoarthritis in the knees, do not relate that disability to the Veteran’s active service. As the information provided in support of the application to reopen the claims for service connection for heart disability, gout, and a bilateral knee disability does not include new and material evidence, the appeal as to those issues remains denied, and the claims are not reopened. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). 2. Entitlement to service connection for a respiratory disability, to include COPD and emphysema The Veteran contends a respiratory disability, to include COPD and emphysema, is related to service. He stated that he had trouble breathing during service. A VA medical opinion has not been obtained in this case. 38 U.S.C. § 5103A (a) (2012). A VA medical examination is not required as a matter of course in virtually every case involving a nexus issue. Where only a conclusory generalized statement is provided by the appellant, an examination may not be required. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when an opinion is necessary to substantiate the claim for a benefit. Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The claims file contains the Veteran’s general lay assertions that he had difficulty breathing while on active duty. However, the Veteran’s service records do not confirm breathing difficulties, and the Board finds that the Veteran was not diagnosed with any respiratory disability, to include COPD or emphysema, during service. The Board notes the Veteran had tuberculosis prior to service and received treatment during service, for which he was ultimately discharged. A November 1968 chest x-ray was within normal limits. Additionally, none of the medical treatment providers of record have suggested a possible connection between the Veteran’s COPD and emphysema and active service. Thus, the Board does not find it necessary to obtain a medical opinion, as there is no reasonable possibility that it would substantiate the claim. The Veteran’s service medical records are negative for any signs, symptoms, or treatment of respiratory problems other than tuberculosis, for which service connection was previously finally denied. This claim sought service connection for COPD or emphysema, rather than tuberculosis. The Board finds the preponderance of the evidence is against the claim of entitlement to service connection for a respiratory disability, to include COPD and emphysema. None of the Veteran’s medical treatment providers has given any indication that his respiratory disabilities could be related to his active duty, and there were no findings of prostate, colon, or rectal cancer during service or within one year following separation from service. The only evidence which provides any connection between any current COPD or emphysema and service comes from the Veteran himself. It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s lay statements. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, whether prostate, colon, or rectal cancer was caused by active service, that issue falls outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide such opinions, and there are no competent nexus opinions are of record. As previously stated, the medical evidence of record does not support the Veteran’s claim. The Board is sympathetic to the Veteran in that it is clear he sincerely believes his COPD and emphysema were caused by active service. However, the evidence of record does not support that contention. Although the Board is appreciative of the Veteran’s faithful and honorable service to our country, considering the record before the Board, this claim must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). As the preponderance of the evidence is against the claim of entitlement to service connection for COPD and emphysema, the claims for service connection for a respiratory disability, to include COPD and emphysema must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran seeks TDIU because he asserts that his is unable to work due to service-connected disabilities. A TDIU rating for compensation purposes may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The assignment of TDIU requires that the Veteran be service connected for the disabilities for which the total rating is sought. A total rating for compensation purposes cannot, as a matter of law, be granted for disabilities for which service connection has not been granted. Service connection has not been established for heart, gout, knee, or respiratory disabilities. The evidence of record shows that the Veteran has no service-connected disabilities. Therefore, the Board finds that total disability due to service-connected disabilities is not shown as no disabilities have been service-connected. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). As TDIU cannot, by law, be granted for disabilities for which service connection has not been granted, the claim must be denied as having no legal merit. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel