Citation Nr: 18154578 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-42 135 DATE: November 30, 2018 ORDER Service connection for erectile dysfunction is denied. Service connection for a left wrist disability, to include carpal tunnel syndrome, is denied. Service connection for a right wrist disability, to include carpal tunnel syndrome, is denied. Service connection for a left-hand disability is denied. Service connection for a right-hand disability is denied. Service connection for a left hip disability is denied. Service connection for a right hip disability is denied. Service connection for irritable bowel syndrome is denied. Service connection for allergic rhinitis is denied. New and material evidence to reopen the claim for service connection for a low back disability has not been received. New and material evidence to reopen the claim for service connection for a neck disability has not been received. New and material evidence to reopen the claim for service connection for acid reflux has not been received. New and material evidence to reopen the claim for service connection for a rotator cuff tear of the left shoulder has not been received. New and material evidence to reopen the claim for service connection for a rotator cuff tear of the right shoulder has not been received. New and material evidence to reopen the claim for service connection for a left elbow disability has not been received. New and material evidence to reopen the claim for service connection for a right elbow disability has not been received. New and material evidence to reopen the claim for service connection for headaches has not been received. New and material evidence to reopen the claim for service connection for hypertension has not been received. New and material evidence to reopen the claim for service connection for a left knee disability has not been received. New and material evidence to reopen the claim for service connection for a right knee disability has not been received. New and material evidence to reopen the claim for service connection for a left ankle disability has not been received. New and material evidence to reopen the claim for service connection for bronchitis has not been received. REMANDED The claim for a rating in excess of 10 percent for right ankle strain with spur and subtalar joint fusion is remanded. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that the Veteran has erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, or allergic rhinitis that was incurred in service. 2. Service connection for a low back disability, neck disability, rotator cuff tears of the left and right shoulders, left and right elbow disabilities, headaches, hypertension, left and right knee disabilities, left ankle disability, and bronchitis was denied by a July 2008 rating decision; the Veteran was notified of this decision and of his appellate rights in a July 2008 letter; he did not perfect a timely appeal with respect to the July 2008 rating decision and no pertinent exception to finality applies. 3. No evidence associated with the record since the July 2008 rating decision raises a reasonable possibility of substantiating the Veteran’s claims for service connection for a low back disability, neck disability, rotator cuff tears of the left and right shoulders, left and right elbow disabilities, headaches, hypertension, left and right knee disabilities, a left ankle disability, or bronchitis. 4. A September 2010 rating decision denied service connection for acid reflux and found that new and material evidence had not been received to reopen the claims for service connection for a neck disability, rotator cuff tear of either shoulder, hypertension, or left or right knee disability; the Veteran was notified of this decision and of his appellate rights in a September 2010 letter; he did not perfect a timely appeal with respect to the September 2010 rating decision and no pertinent exception to finality applies. 5. No evidence associated with the record since the September 2010 rating decision raises a reasonable possibility of substantiating the Veteran’s claim for service connection for acid reflux. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, and allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The July 2008 rating decision that denied service connection for a low back disability, neck disability, rotator cuff tears of the left and right shoulders, left and right elbow disabilities, headaches, hypertension, left and right knee disabilities, left ankle disability, and bronchitis is final. 38 U.S.C.§ 7105(c) (2008); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2008). 3. The September 2010 rating decision that denied service connection for acid reflux and found that new and material evidence had not been received to reopen the claims for service connection for a neck disability, rotator cuff tear of either shoulder, hypertension, or a left or right knee disability is final. U.S.C. §§ 5108, 7105(c) (2010); 38 C.F.R. § 3.156(a) (2010). 4. New and material evidence has not been received to reopen the previous denial of the claims for service connection for a low back disability, neck disability, rotator cuff tears of the left and right shoulders, left and right elbow disabilities, headaches, hypertension, left and right knee disabilities, left ankle disability, bronchitis, or acid reflux. U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a) (2018).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claims When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The service treatment reports (STRs) from the Veteran’s period of active duty from December 1986 to June 1991 are silent for erectile dysfunction, a left or right wrist disability, left hand disability, left or right hip disability, or irritable bowel syndrome. Multiple STRs reflect treatment for upper respiratory problems and an August 1998 STR reflects treatment for a right-hand injury sustained in a basketball game. Although barely legible, the reports from the May 1991 separation examination appear to be silent for the disabilities at issue. The Veteran did not reference erectile dysfunction, a wrist disability, hand disability, hip disability, allergic rhinitis, or irritable bowel syndrome in his initial claim for service connection filed in July 2007. It was not until September 2014 that the Veteran filed a claim for service connection for these disabilities. VA examinations conducted in February 2015 resulted in opinions that the Veteran did not have a right-hand condition, to include carpal tunnel syndrome, that was related to service and that the Veteran did not have a current upper respiratory disability, listed by the examiner as sinusitis, due to the upper respiratory complaints noted in the STRs. As a review of the record reveal no credible or competent evidence indicating that the Veteran has erectile dysfunction, a left or right wrist disability, left hand disability, left or right hip disability, or irritable bowel syndrome that may be related to service, VA examinations to address these claims are not necessary to fulfill the duty to assist. See 38 U.S.C.§ 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran’s contentions linking erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, and allergic rhinitis to service, the undersigned finds such to not be credible. When weighing credibility, for consideration are interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In this regard and as indicated above, when the Veteran first filed a claim for service connection in July 2007, he made no reference to erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, or allergic rhinitis. Such silence in this initial application for service connection, when the Veteran is otherwise affirmatively speaking, would not be supportive the Veteran’s assertions linking erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, or allergic rhinitis to service. Finally, it was not until over 15 years after service that the Veteran first related erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, or allergic rhinitis to service. Such an extended time between service and contentions relating these disabilities to service further weighs against the Veteran’s credibility. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Aside from any credibility issues, to the extent the assertions of the Veteran or his representative are being advanced in an attempt to establish that he has erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, or allergic rhinitis that is related to service, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative are shown to have appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. Id. To the extent the Veteran would be competent to describe certain symptoms of the disabilities at issue from service to the present time, the Board finds the contemporaneous evidence in the form of the silent STRs and negative opinions with respect to right hand or upper respiratory disorders following VA examinations in February 2015; the failure to reference the disabilities at issue in his initial application for service connection; and the extended period of time between separation from service and submission of the claim for service connection at issue to be more probative factors than any lay assertions made in connection with the claims for service connection for the disabilities at issue, and that these facts weigh against a finding of continuity of relevant symptoms associated with these conditions since service. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for erectile dysfunction, a left or right wrist disability, left or right-hand disability, left or right hip disability, irritable bowel syndrome, or allergic rhinitis. As such, these claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. II. New and Material Evidence Claims Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2017). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “A must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a low back disability, neck disability, rotator cuff tears of the left and right shoulders, left and right elbow disabilities, headaches, hypertension, left and right knee disabilities, left ankle disability, and bronchitis was denied by a July 2008 rating decision. The evidence then of record included the STRs, which were silent for low back, neck, right shoulder, or elbow disabilities. The STRs did reflect treatment in October 1988 for a muscle strain in the left shoulder sustained after the Veteran jumped in a foxhole and headaches in conjunction with upper respiratory complaints. The May 1991 separation examination was silent for a left shoulder disability or headaches. Elevated blood pressure readings of 150/90 in October 1988 and 160/106 in July 1990 were demonstrated during service. A diagnosis of hypertension was not made during service and the May 1991 separation examination reflected blood pressure of 122/80. Bilateral patellofemoral syndrome was demonstrated during service in November 1986 and the Veteran was diagnosed with a bruised right knee in May 1988. The May 1991 separation examination was silent for a knee disability. The Veteran was also diagnosed with a right ankle sprain in November 1990 after a jumping injury and seen in February 1987 for an upper respiratory infection and a diagnosis of rule out bronchitis. A July 1990 STR noted that there was a “history” of bronchitis two year prior to that time. The May 1991 separation examination was silent for a left ankle disability or bronchitis. The post service evidence of record at the time of the July 2008 rating decision included private treatment reports dated in September 2005 reflecting treatment for neck pain diagnosed as a trapezius spasm. Neck pain was shown on a September 2007 VA clinical record. Also of record were private clinical reports reflecting surgeries for a left rotator cuff tear in September 1999 and a right rotator cuff tear in 2005. A March 2008 VA examination that diagnosed the Veteran with bilateral status postoperative shoulder rotator cuff tears included the opinion by the examiner that neither shoulder disability was related to service. The post service evidence of record at the time of the July 2008 rating decision also included a July 2004 private clinical report noting an injury to the left elbow sustained in a motor vehicle accident. Hypertension was first shown after service on a June 1996 private clinical report. A February 2001 private clinical report reflected bilateral knee pain with X-ray evidence of spurs in each knee. A September 2005 private clinical report noted probable arthritis of the right knee and a private clinical report dated in January 2006 noted a diagnosis of possible tendonitis. A May 2008 VA examination diagnosed the Veteran with bilateral patellofemoral syndrome with degenerative joint disease, with the examiner opinion that he could not relate either knee disability to service. Also of record at the time of the July 2008 rating decision were reports from a March 2008 VA examination that included an X-ray of the left ankle that showed an old trauma of the superior aspect of the navicular and a diagnosis of an old fracture of the left ankle with residuals. The examiner opined that he could not relate the Veteran’s left ankle disability shown at that time to service. Finally, a March 2008 VA examination diagnosed the Veteran with episodic bronchitis, with the examiner again stating that he could not relate this condition to service. The Veteran was notified of the July 2008 rating decision and of his appellate rights in a July 2008 letter. He did not perfect a timely appeal with respect to the July 2008 rating decision; no additional evidence was received within the one-year appeal period following the July 2008 rating decision; and no additional service department records have since been associated with the claims file warranting reconsideration of the claims for service connection for a low back disability, neck disability, rotator cuff tears of the left and right shoulders, left and right elbow disabilities, headaches, hypertension, left and right knee disabilities, left ankle disability, or bronchitis. Therefore, the July 2008 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C.§ 7105(c) (2008); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2008). Thereafter, a September 2010 rating decision denied service connection for acid reflux and found that new and material evidence had not been received to reopen the claims for service connection for a neck disability, rotator cuff tear of either shoulder, hypertension, and a left or right knee disability. The evidence with respect to acid reflux then of record included the STRs, which were silent for acid reflux. There was no post service evidence then of record linking acid reflux to service. With respect to the claims to reopen, additional evidence considered by the September 2010 rating decision that was not of record at the time of the July 2008 rating decision included evidence of joint pain and treatment for hypertension but contained no clinical evidence or medical opinion linking a neck disability, shoulder disability, hypertension, or knee disability to service. The Veteran was notified of the September 2010 rating decision and of his appellate rights in a September 2010 letter. He did not perfect a timely appeal with respect to the September 2010 rating decision; no additional evidence was received within the one-year appeal period following the September 2010 rating decision; and no additional service department records have since been associated with the claims file warranting reconsideration of the claims addressed in the September 2010 rating decision. As such, the September 2010 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C.§ 7105(c) (2008); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2008). Reviewing the evidence received since the final rating decisions discussed above, none of this evidence reflects a clinical record or opinion that links a low back disability, neck disability, rotator cuff tears of the left or right shoulder, left or right elbow disability, headaches, hypertension, a left or right knee disability, a left ankle disability, bronchitis, or acid reflux to service. In addition, none of the additional evidence received since the final rating decisions discussed above demonstrates the presence of arthritis in the neck or left ankle or either shoulder, elbow, or knee; or hypertension within one year of service so as to warrant service connection on the basis of chronic disease, to include by way of continuity of symptomatology. 38 U.S.C. 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). As for the contentions submitted by and on behalf of the Veteran since the final rating decisions discussed above, these lay assertions do not constitute material evidence. Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). As such, the record since the final rating decisions at issue reveals no evidence or statements that raise a reasonable possibility of substantiating the claims for service connection for a low back disability, neck disability, rotator cuff tears of the left or right shoulder, left or right elbow disability, headaches, hypertension, a left or right knee disability, a left ankle disability, bronchitis, or acid reflux. Therefore, the Board concludes that new and material evidence has not been received with respect to the claims for service connection for these disabilities, and the criteria for reopening these claims are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran was last afforded a VA examination to assess the severity of his service connected for right ankle strain with spur and subtalar joint fusion in March 2015, the reports from which do not contain the range of motion findings required by Correia v. McDonald, 28 Vet. App 158 (2016) or the findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, a VA examination of the right ankle to assess the current severity of the service connected right ankle disability that contains the findings required by Correia and Sharp is necessary to fulfill the duty to assist. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). For the reasons stated above, the claim for an increased rating for the service connected right ankle disability is REMANDED to the Agency of Original Jurisdiction for the following action: 1. Arrange for a VA examination to determine the nature, severity, and extent of the current pathology associated with the service-connected right ankle disability. The electronic record should be made available to the examiner. Range of motion testing in active motion, passive motion, weight-bearing, and non-weight-bearing for both the right and left ankle should be accomplished. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also describe the functional limitations resulting from the service-connected right ankle disability, to include during flare-ups. If flare-ups are not shown during the examination, the examiner should conduct efforts to obtain adequate information regarding the impairment resulting from flare-ups by alternative means, to include statements as to any such impairment by the Veteran himself. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel