Citation Nr: 18161228 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-56 396 DATE: December 31, 2018 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for shin splints is denied. The application to reopen the claim of entitlement to service connection for a bilateral knee disorder is denied. The application to reopen the claim of entitlement to service connection for residuals of heat exhaustion is denied. FINDINGS OF FACT 1. A back disorder was not manifest in service and is not attributable to service. 2. Shin splints were not manifest in service and are not attributable to service. 3. A January 2002 rating decision denied the Veteran’s claim for service connection for a bilateral knee disorder. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 4. Evidence received since the January 2002 rating decision is cumulative and redundant. 5. An October 2000 rating decision denied the Veteran’s claim for service connection for residuals of heat exhaustion. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 6. Evidence received since the October 2000 rating decision is cumulative and redundant. CONCLUSIONS OF LAW 1. A back disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Shin splints were not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The January 2002 rating decision that denied service connection for a bilateral knee disorder is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2017). 4. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for a bilateral knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The October 2000 rating decision that denied service connection for residuals of heat exhaustion is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2017). 6. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for residuals of heat exhaustion. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to February 1988. 1. Entitlement to service connection for a back disorder 2. Entitlement to service connection for shin splints Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. 38 U.S.C. § 1110, 1131. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where competent medical evidence indicates that the appellant does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A review of VA treatment records does not reveal any current chronic disorder of the shins or the back, and the Veteran has not submitted any evidence showing such disorders. As recently as February 2015, VA treatment records document the Veteran specifically denying any musculoskeletal complaints or abnormalities, and he specifically denied back pain. An August 2004 VA treatment record documents “small superficial abrasions” on the shins. There is no evidence that this amounts to a disability. In the absence of a disability, compensation may not be awarded. In the absence of evidence of a back or shin disorder, there can be no grant of service connection under the law. See Brammer, supra. Even if the Board were to accept that the Veteran did have such disorders, the Veteran has provided nothing beyond a bare assertion as to how this claimed disorders are related to service. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of a shin or back disorder. At the Veteran’s December 1987 separation examination, clinical evaluation documented normal lower extremities, spine, and musculoskeletal system. In the accompanying Report of Medical History, the Veteran specifically denied recurrent back pain, bone deformity, and other potentially relevant symptoms. The contemporaneous records establish that to the extent that the Veteran has a shin or back disorder, they were first manifest many years after separation. The Board again notes that the Veteran has provided no evidence of chronic disability and only a bare assertion that these claimed disorders are related to service. The Board finds that the preponderance of the evidence is against the claims and the claims must be denied. The Board recognizes that the Veteran was not afforded VA examinations with respect to these issues. However, no examinations are necessary for the adjudication of these claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Here, there is no competent evidence of record with respect to the existence of a current disability, an in-service event, injury, or disease, or any evidence of an association between the Veteran’s claimed disorders and his service. There is clearly sufficient competent medical evidence of record to adjudicate the Veteran’s claims. Even if there were competent evidence of a current disability or an in-service incurrence, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In other words, absent such evidence, the Board finds that it is unnecessary to require the Veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of the claimed disability in service. 3. The application to reopen the claim of entitlement to service connection for a bilateral knee disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An 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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In a January 2002 rating decision, the RO denied service connection for a bilateral knee disorder. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the January 2002 rating decision, the RO considered the claim and service medical records, among other evidence. The RO denied the claim on the basis that evidence did not show an in-service incurrence or a nexus between the Veteran’s claimed knee disorders and his active service. Since the January 2002 rating decision, the Veteran has not submitted anything specific to his claimed knee disorders beyond the bare assertion associated with his claim to reopen. He has not submitted any new evidence with respect to an in-service incurrence or a nexus between service and his claimed knee disorders. The evidence submitted by the Veteran is not new and material. New and material evidence may be neither cumulative nor redundant of the evidence of record at the time of the last final decision. 38 C.F.R. § 3.156 (a). The evidence does not cure a prior evidentiary defect, e.g., evidence of an in-service incurrence or a nexus between a current disability and active service, which was not previously substantiated in the January 2002 rating decision. Rather, the Veteran has provided only a bare assertion that his claimed bilateral knee disorders are related to service. As a result, the application to reopen the Veteran’s service connection claim for bilateral knee disorders must be denied. 4. The application to reopen the claim of entitlement to service connection for residuals of heat exhaustion In an October 2000 rating decision, the RO denied service connection for residuals of heat stroke. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the October 2000 rating decision, the RO considered the claim and service medical records, among other evidence. The RO denied the claim on the basis that Veteran failed to submit new and material evidence since a February 1996 rating decision. That decision denied service connection on the basis of no current chronic disability associated with the acute episodes of heat exhaustion in service. Since the October 2000 rating decision, the Veteran has submitted service treatment records documenting in-service treatment for heat exhaustion. These were of record at the time of the February 1996 and October 2000 rating decision. Beyond this, the Veteran has provided nothing beyond a bare assertion that his claimed residuals of heat exhaustion are linked to service. The Veteran has not submitted any new evidence with respect to current disability or a nexus between service and his claimed disorder. The evidence submitted by the Veteran is not new and material. New and material evidence may be neither cumulative nor redundant of the evidence of record at the time of the last final decision. 38 C.F.R. § 3.156 (a). The evidence does not cure a prior evidentiary defect, e.g., evidence of a current disability or a nexus between the current disability and active service, which was not previously substantiated in the October 2000 rating decision. Rather, the Veteran has provided only a bare assertion that his claimed residuals of heat exhaustion are related to service. As a result, the application to reopen the Veteran’s service connection claim for residuals of heat exhaustion must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel