Citation Nr: 18153879 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-35 647 DATE: November 28, 2018 ORDER The application to reopen a claim of entitlement to service connection for non-Hodgkin’s lymphoma is denied. The claim of entitlement to service connection for neuropathy of the left foot is denied. The claim of entitlement to service connection for neuropathy of the right foot is denied. The claim of entitlement to service connection for neuropathy of the left hand is denied. The claim of entitlement to service connection for neuropathy of right hand is denied. REMANDED The claim of entitlement to service connection for cardiac arrhythmia is remanded. The claim of entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. In a July 2003 rating decision, the Veteran’s claim for service connection for non-Hodgkin’s lymphoma was denied. He did not appeal the decision and it is now final. 2. The evidence received since the July 2003 rating decision is cumulative or redundant of the evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise the possibility of substantiating the claim. 3. The preponderance of the evidence weighs against a relationship between the Veteran’s active duty service and his neuropathy of the bilateral hands and bilateral feet. CONCLUSIONS OF LAW 1. The July 2003 rating decision denying service connection for non-Hodgkin’s lymphoma 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 criteria to reopen the claim of entitlement to service connection for non-Hodgkin’s lymphoma are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are not met for service connection for neuropathy of the bilateral hands and bilateral feet. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to April 1971. Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). 1. The application to reopen a claim of entitlement to service connection for non-Hodgkin’s lymphoma is denied. In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. A finally disallowed claim may be reopened only when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. “New” evidence is evidence not previously submitted to agency decisionmakers. Evidence is “material” if it 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s claim for service connection for non-Hodgkin’s lymphoma was denied in July 2003 because the evidence did not show any illnesses or injuries in service that suggested lymphoma. The record also did not show the Veteran had any exposure to herbicides, as he had served in an area of Korea where Agent Orange and other herbicides were not used. The Veteran did not appeal that decision and it is now final. The Board notes that the regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). However, the Board finds that none of the evidence obtained and made a part of the record since the July 2003 decision relates to an unestablished fact necessary to substantiate the claim. The Veteran asserts now, as before, that his non-Hodgkin’s lymphoma is related to his service via herbicide exposure. The record previously showed he was stationed at Kunsan AFB in Korea, which was not considered affected by herbicides. He has provided no new evidence regarding his asserted exposure. Indeed, he has not provided any details of his purported exposure. Previously, he asserted that herbicides were used along the perimeter, which was not shown. Now, he has not provided any specific detail. Indeed, the record contains an August 2014 Memorandum indicating that there was not enough evidence to request a verification of exposure from the Joint Services Records Research Center (JSRRC) because the record did not place him in an area known for herbicide use, and he did not provide any locations or dates of possible exposure to submit to the JSRRC. The Veteran argues that information should have been sought from the JSRRC, but they cannot provide a verification without specific information from him. The duty to assist is a two-way street. If the Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran argues that this claim was not considered on a direct basis, but he has not provided any indication as to how he believes it may be related to his service. The newly received medical evidence does no more than confirm his diagnosis, and does not suggest a relationship to his service, or show possible herbicide exposure. The Veteran argues that his statements are sufficient to reopen this claim. But as above, his statements do not provide any information on whether he was exposed to herbicides or whether there was another incident or illness in service that could be related to lymphoma. His claim in March 2014 indicates his belief that his lymphoma was caused by herbicide exposure. His statement received in February 2016 confirms his diagnosis of lymphoma. This is cumulative to the previous evidence. The Veteran argues that his claim has not been properly developed, and a VA examination should be conducted. The duty to provide an examination does not apply to petitions to reopen unless new and material evidence has been received. 38 C.F.R. § 3.159(c)(4)(iii). In sum, after review of the evidence, the Board finds that the evidence associated with the claims file since the July 2003 rating decision is either cumulative or redundant or does not relate to any unproven element of the previously denied claim. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection for non-Hodgkin’s lymphoma is not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). 2. The claim of entitlement to service connection for neuropathy of the left foot is denied. 3. The claim of entitlement to service connection for neuropathy of the right foot is denied. 4. The claim of entitlement to service connection for neuropathy of the left hand is denied. 5. The claim of entitlement to service connection for neuropathy of right hand is denied. The Veteran has claimed service connection for neuropathy of the hands and feet. The record shows the Veteran is diagnosed with neuropathy. His STRs do not show neuropathy or symptoms of neuropathy. He separated from service with a normal clinical evaluation of the neurologic system. The Veteran asserts that his neuropathy is related to service either directly or secondarily to his lymphoma. He has not provided any evidence that suggests that his neuropathy is directly related to his service. Indeed, all the medical evidence strongly suggests a relationship to his lymphoma. The Board observes that a VA medical examination opinion was not obtained, but does not find that one is necessary for these claims. An examination is required when there is (1) evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an “in-service event, injury, or disease,” or a disease, manifested in accordance with presumptive service connection regulations, occurred that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and, (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidentiary requirement for element (3) is low. Id. Here, there is no evidence of an in-service event, injury, or disease. There is no evidence suggesting a relationship to service, aside from the Veteran’s asking that his claim be considered on a direct basis. He has not provided any indication of how he believes these disabilities are related to his service. VA is not required under these circumstances to schedule an examination for a medical nexus opinion merely as a matter of course. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). As his lymphoma is not service connected, secondary service connection is not available. Wallin v. West, 11 Vet. App. 509, 512 (1998). Accordingly, the preponderance of the evidence weighs against these claims, and service connection for neuropathy of the left and right hands and left and right feet must be denied. REASONS FOR REMAND 1. The claim of entitlement to service connection for cardiac arrhythmia is remanded. The Veteran’s STRs show that he experienced dizziness in September 1967. It was provisionally attributed to a reaction to a shot he had received. Given that dizziness is a symptom of arrhythmia, a VA examination opinion should be obtained. 2. The claim of entitlement to service connection for erectile dysfunction is remanded. The Veteran’s STRs show testicular pain and possible prostatitis in December 1967. A medical opinion should be obtained as to whether his erectile dysfunction is related to this illness in service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) that his arrhythmia is related to his service. His STRs show dizziness in September 1967, which was provisionally attributed to a bad reaction from a shot. The examiner is asked to review the records and provide an opinion as to whether his arrhythmia was present during service, or is related to any illness or injury in service, including his dizziness. All opinions must be accompanied by explanation. 2. Schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) that his erectile dysfunction is related to his service. His STRs should testicular pain and possible prostatitis in December 1967. The examiner is asked to review the records and provide an opinion as to whether erectile dysfunction was caused or is related to this illness in service. All opinions must be accompanied by explanatory rationale. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson