Citation Nr: 18160964 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-11 251 DATE: December 28, 2018 ORDER The petition to reopen a claim of entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for a heart disability is denied. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a kidney disability, to include nephrolithiasis and chronic renal disease, are granted. Entitlement to service connection for dyslexia, to include as secondary to service connected disabilities, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a respiratory disability, to include bronchitis and COPD, is remanded. FINDINGS OF FACT 1. In a February 2000 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a bilateral shoulder disability; he did not perfect a timely appeal or submit additional new evidence within one year thereof. 2. In a March 2006 rating decision, the RO found that the Veteran hadn’t submitted new and material evidence to permit re-opening the claim; he did not perfect a timely appeal or submit additional new evidence within one year thereof. 3. The evidence added to the file subsequent to the March 2006 rating decision does not relate to a previously unestablished fact and does not present a reasonable possibility of substantiating the claim of service connection for a bilateral shoulder disability. 4. A heart disability was not incurred in or aggravated by service and was not caused and is not aggravated by any service-connected disability. 5. Hypertension was not incurred in or aggravated by service and was not caused and is not aggravated by any service-connected disability. 6. Resolving the benefit of the doubt in the Veteran’s favor, his nephrolithiasis and chronic renal disease were caused or aggravated by medications for his service-connected disabilities. 7. Dyslexia was not incurred in or aggravated by service and was not caused and is not aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The March 2006 rating decision that denied the petition to reopen the claim of entitlement to service connection for a bilateral shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. No new and material evidence has been submitted to reopen the claim of service connection for a bilateral shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 5. The criteria for service connection for nephrolithiasis and chronic renal disease have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 6. The criteria for service connection for dyslexia have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to July 1964. These claims were remanded by the Board in March 2016. In his VA Forms 9, the Veteran requested a hearing before a Veterans Law Judge in Washington, DC. A letter dated in June 2015 informed the Veteran of the date and time of his scheduled hearing; however, the record reflects that he did not appear for the hearing and no explanation was provided. He has not requested that the hearing be rescheduled. As such, the hearing request is considered withdrawn. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Secondary service connection may be established for a disability, which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Court of Appeals for Veterans Claims has construed this provision as entailing “any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition.” Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. Id. 1. Whether new and material evidence has been submitted to permit reopening a claim of entitlement to service connection for a bilateral shoulder disability A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In February 2000, the Veteran’s claim of entitlement to service connection for a bilateral shoulder disability was denied by the RO. The RO found that there was no evidence of a connection between the Veteran’s bilateral shoulder disability and his active service or service-connected disabilities. In August 2002, the RO found that there wasn’t new and material evidence submitted to re-open the Veteran’s claim. In March 2006, the RO again found that there wasn’t new and material evidence submitted to re-open the Veteran’s claim. Since the March 2006 rating decision, the Veteran has re-submitted duplicative service, private, and VA treatment records. He has also submitted new treatment records. However, the submitted evidence does not cure an evidentiary defect which existed at the time of the prior denial, but rather the same defect continues to exist. There is still no competent evidence of a nexus between an incident during the Veteran’s active service or service-connected disabilities and his bilateral shoulder disability. The Board finds that the new evidence received since the March 2006 rating decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating it. Therefore, the issue may not be reopened. 2. Entitlement to service connection for a heart disability The Veteran was afforded a VA medical examination in May 2016. He was diagnosed with cardiomegaly and atrial fibrillation. He was afforded a VA medical opinion in April 2017. The examiner opined that it was less likely than not that the Veteran’s heart disabilities were proximately due to, the result of, or aggravated by his service-connected conditions. The examiner explained that the Veteran’s uncontrolled hypertension was responsible for the progression to atrial fibrillation. Additionally, it was noted at the Veteran’s May 2016 VA examination that he was requested to complete diagnostic testing on the date of the examination and he refused. As there is no competent evidence of a nexus between the Veteran’s heart disabilities and his active military service or his service-connected disabilities, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities The Veteran asserts that his hypertension is secondary to his service-connected disabilities. The Veteran was afforded a VA medical examination in May 2016. He was diagnosed with essential hypertension. The examiner opined that it was less likely than not that the Veteran’s hypertension was proximately due to, the result of, or aggravated by his service-connected conditions. The examiner explained that the most common risk factors for hypertension are genetics, obesity, decreased physical activity, and excess dietary sodium. The examiner explained that the Veteran had three of the most common risk factors: a family history of hypertension, obesity, and decreased physical activity. As there is no competent evidence of a nexus between the Veteran’s hypertension and his active military service or his service-connected disabilities, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to service connection for a kidney disability The Veteran was afforded a VA medical examination in May 2016. The Veteran was diagnosed with nephrolithiasis and chronic renal disease. The examiner opined that it was impossible to opine whether it was at least as likely as not that the Veteran’s kidney disabilities were caused or aggravated by medications for his other service-connected disabilities. The examiner explained that the Veteran had two significant factors for kidney disease: uncontrolled hypertension and long term NSAID medication use for his spine and knee conditions since 1999. Resolving the benefit of the doubt in the Veteran’s favor, his nephrolithiasis and chronic renal disease were caused or aggravated by medications for his service-connected disabilities. 5. Entitlement to service connection for dyslexia, to include as secondary to service-connected disabilities The Veteran has not provided or identified any medical treatment records showing complaints of or treatment for dyslexia. The Veteran’s service treatment records and VA treatment records do not show any complaints of or treatment for dyslexia. Because none of the criteria for providing a VA examination are met, a VA examination is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection is denied, as there is no evidence that the Veteran has dyslexia, that the Veteran suffered from dyslexia while on active duty, and there is no competent evidence linking dyslexia to service or to any service-connected disability. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. The Veteran’s claims file shows treatment for PTSD. However, there is no medical opinion in the claims file to show whether this diagnosis of PTSD is related to his active military service. The Veteran should be afforded a VA medical examination in order to determine the nature and likely etiology of any acquired psychiatric disorder. 2. Entitlement to service connection for a respiratory disability, to include bronchitis and COPD, is remanded. In its March 2016 remand, the Board directed the Agency of Original Jurisdiction(AOJ) to undertake development regarding the Veteran’s asserted exposure to lead paint, asphalt-like material, welding, and fiberglass during his service aboard the USS Wilkerson. While there are some notations in the Veteran’s claims file about his MOS and exposure to hazardous materials, there is no memorandum explaining this development or stating that all appropriate development had been undertaken. This development was not referenced in the July 2017 Supplemental Statement of the Case. A remand is therefore necessary to ensure this development has been completed. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The matter is REMANDED for the following action: 1. Undertake all appropriate development effort to confirm the Veteran’s claimed exposure to lead paint, asphalt-like material, welding, and fiberglass during his service aboard the USS Wilkerson. 2. Schedule the Veteran for a VA examination or examinations in order to determine the nature and etiology of any current respiratory disability, to include bronchitis and COPD. The examiner must review the claims file and should note that review in the report. The examiner should explain the rationale for all opinions. Based on examination and interview of the Veteran and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current respiratory disability (to include the current COPD) is etiologically related to service, to specifically include the October 1962 hospitalization for bronchopneumonia, and any exposure to asphalt-like material, welding, fiberglass, and lead paint while serving aboard the USS Wilkinson, should such exposure be confirmed. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current respiratory disability (to include the current COPD) is caused or aggravated (permanently worsened beyond the natural progression of the disability) by the numerous surgeries for the Veteran’s service-connected cervical spine and bilateral knee disabilities. A complete rationale for all stated opinions must be provided. 3. Schedule the Veteran for a VA psychiatric examination to determine the nature and likely etiology of any psychiatric disabilities. The examiner must review the claims file and should note that review in the report. The examiner should explain the rationale for all opinions. Based on examination and interview of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: (a) For every psychiatric diagnosis found, please indicate whether each disability is at least as likely as not (50 percent or greater probability) related to the Veteran’s active service. (b) For every psychiatric diagnosis, please indicate whether each disability is at least as likely as not (50 percent or greater probability) caused by service-connected disabilities. (c) For every psychiatric diagnosis, please indicate whether each disability is at least as likely as not (50 percent or greater probability) aggravated (increased in severity beyond the natural progress of the disorder) by service-connected disabilities. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke