Citation Nr: 18154043 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-39 006 DATE: November 29, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a low back disability is denied. The petition to reopen the previously denied claim of entitlement to service connection for tuberculosis is denied. The petition to reopen the previously denied claim of entitlement to service connection for hepatitis C is granted. Service connection for hepatitis C is denied. Service connection for a disability manifested by cramps in the thighs and legs is denied. Service connection for a hammertoe of the right foot is denied. Service connection for allergic rhinitis is denied. Service connection for hypertension is denied. Service connection for erectile dysfunction is denied. Service connection for a prostate disorder is denied. Service connection for toenail fungus, onychomycosis, is denied. Service connection for an acquired psychiatric disability is denied. FINDINGS OF FACT 1. An unappealed March 2010 rating decision denied service connection for low back disability; VA received no new and material evidence prior to expiration of the appeal period; subsequently received evidence includes evidence that is either cumulative or redundant and that does not relate to an unestablished fact necessary to reopen the claim. 2. An unappealed March 2010 rating decision denied service connection for tuberculosis; VA received no new and material evidence prior to expiration of the appeal period; subsequently received evidence includes evidence that is either cumulative or redundant and that does not relate to an unestablished fact necessary to reopen the claim. 3. An unappealed March 2010 rating decision denied service connection for hepatitis C; VA received no new and material evidence prior to expiration of the appeal period; subsequently received evidence includes relevant service treatment records. 4. Hepatitis C did not have its onset in service and is not otherwise related to service. 5. A disability manifested by cramps in the lower extremities has not been established. 6. The presence of a hammertoe of the right foot has not been established. 7. Allergic rhinitis did not have its onset in service and is not otherwise related to service. 8. Hypertension did not have its onset in service; did not manifest to a compensable degree within the applicable presumptive period; and is not otherwise related to service. 9. Erectile dysfunction did not have its onset in service and is not otherwise related to service. 10. A prostate disorder did not have its onset in service and is not otherwise related to service. 11. Toenail fungus did not have its onset in service and is not otherwise related to service. 12. An acquired psychiatric disability to include depression did not have its onset in service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying the claim for service connection for low back disability is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The March 2010 rating decision denying the claim for service connection for tuberculosis is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 3. The March 2010 rating decision denying the claim for service connection for hepatitis C is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 4. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a disability manifested by cramps of the lower extremities have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a hammertoe of the right foot have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). 8. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 9. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). 10. The criteria for service connection for a prostate disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). 11. The criteria for service connection for toenail fungus, onychomycosis, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). 12. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from March 1972 to January 1973. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For certain chronic diseases, such as, hypertension, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for low back disability. 2. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection tuberculosis. Issues 1-2. A review of the record discloses that this is not the appellant’s first claim entitlement to service connection for a low back disability or for tuberculosis. Both claims were denied by the Agency of Original Jurisdiction (AOJ) in March 2010. The AOJ found no evidence of tuberculosis in or after service. Although the evidence showed that the appellant had degenerative joint disease and degenerative disc disease, that was many years after service, and the evidence showed no nexus between the disability and service. The appellant was notified of those decisions, as well as his appellate rights. However, he did not file a notice of disagreement with which to initiate an appeal. Also, VA did not receive new and material prior to expiration of the appeal period. Therefore, those decisions became final under the law and regulations then in effect. 38 U.S.C. § 4004; 38 C.F.R. § 20.1103. The appellant now seeks to reopen those claims. Evidence added to the record since the AOJ’s March 2010 decision includes additional service treatment records. However, they are not relevant as they are negative for any evidence of tuberculosis or a low back disability of any kind. Accordingly, the newly submitted service medical records do not provide a basis for reconsidering either claim. The additional evidence also consists of VA treatment records dated from January 2000 through April 2017 and the reports of VA examinations in June 2013 and March 2014. Such evidence is new in the sense that it has not previously been before VA. However, it is not material, as it does not relate to an unestablished fact necessary to support either claim. During a VA mental health consultation in December 2011, it was noted that the appellant received a tuberculin, purified protein derivative, however the additional evidence reflects no complaints or abnormal pathology for tuberculosis in or after service. It also remains negative for a chronic, identifiable back disability in service or a nexus between the appellant’s current low back disabilities, degenerative disc disease and degenerative joint disease, and service. Therefore, the Board finds the additional cumulative or redundant of the evidence of record in March 2010. Even when considered with the evidence previously of record, the additional evidence does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability or the claim of service connection for tuberculosis. As the recent evidentiary submissions do not cure any prior evidentiary defect, the Board finds that new and material has not been received to reopen the claims for service connection for low back disability and tuberculosis. Accordingly, the petitions to reopen these claims are denied. 3. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for hepatitis C. In March 2010, the AOJ also denied the appellant’s claim of entitlement to service connection for Hepatitis C, and, as above, the appellant did not appeal that decision. Unlike the claims above, the appellant has submitted additional service treatment records which are relevant to the claim of entitlement to service connection for hepatitis C. Accordingly, the appellant has met the criteria for de novo reconsideration of that claim. 38 C.F.R. § 3.156. 4. Entitlement to service connection for hepatitis C. The appellant contends that he was treated on active duty for hepatitis C. The Board concludes that the preponderance of the evidence is against service connection for hepatitis C. The evidence reflects that hepatitis C did not have its onset in service and is not otherwise related to service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). The appellant’s March 1972 service entrance examination is negative for complaints or clinical findings of hepatitis C. A September 1972 treatment record shows a hospital admission for a three-day history of nausea, vomiting, scleral icterus, dark urine, and anorexia. Following a workup, the diagnosis was hepatitis A. December 1972 service separation examination reflects normal clinical evaluation; the appellant stated that he was in good health, and there were no complaints or clinical findings of hepatitis C. Since November 2005, the appellant’s VA treatment has shown that his active problems include chronic hepatitis. However, the type has not been reported, and he has not been treated for hepatitis. Therefore, in March 2014, VA examined the appellant to determine the nature and etiology of any hepatitis found to be present. Following the examination and a review of the record, the diagnosis was hepatitis C. The examiner opined that it was less likely than not that it had been caused by an inservice injury, event, or illness. The examiner noted that hepatitis C was not caused by hepatitis A. The examiner further noted that the presence of hepatitis C had not been confirmed until December 2011, many years after service and that the appellant had had multiple risk factors for hepatitis including drug use and a tattoo. The appellant reported that the drug use preceded service and that the evidence reflects no complaints or abnormal pathology for hepatitis C until many years after his separation from active duty. In addition, the appellant has not identified or submitted any competent, credible evidence of a nexus to service. Although the appellant is competent to report his symptoms and treatment, he is not competent formulate a medical opinion linking any current hepatitis C disease to his active service, including his September 1972 diagnosis for hepatitis A as the etiology is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the appellant’s medical opinion has no probative value. The Board assigns greater probative value to the STRs showing normal clinical evaluation on service separation. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board further assigns greater probative value to the many years intervening service and the first findings for hepatitis C. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Lastly, the Board assigns greater probative value to the negative March 2014 VA medical opinion because it was prepared by a skilled, neutral medical professional with the necessary training and knowledge to formulate a competent medical opinion; also, this opinion is more probative than the appellant’s unsubstantiated belief because it was based on examination of the appellant’s and his medical history. The appellant has not provided a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 5. Entitlement to service connection for cramps of the lower extremities. 6. Entitlement to service connection for hammertoe of the right foot. Issues 5-6. The appellant seeks service connection for cramps of the leg and hammertoe of the right foot although he has not clearly indicated why he believes he is entitled to these benefits. The Board concludes that the preponderance of the evidence is against service connection for cramps of the lower extremities. A disability manifested by cramps in the lower extremities has not been established. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). The Board further concludes that the preponderance of the evidence is against service connection for hammertoe of the right foot. The appellant does not have, nor has he had at any time during the appeal, a current diagnosis of hammertoe of the right foot. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). As for lower extremity cramps, the appellant’s STRs are negative for any complaints or clinical findings of cramps of the lower extremities. Service separation examination reflects normal clinical evaluation. Although cramps of the lower extremities are shown during April 2008 VA treatment, there were no findings of a chronic, identifiable disability associated with those cramps. Moreover, there was no further evidence reflecting complaints of muscle cramps in the lower extremities. As for hammertoe of the right foot, STRs show no complaints of findings for the disorder, and service separation examination reflects normal clinical evaluation. The post service medical record does not show the presence of hammertoe deformity. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). Absent evidence of a chronic disability, the criteria for service connection are not met. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 7. Entitlement to service connection for allergic rhinitis. The appellant contends that allergic rhinitis began during active service. The Board concludes that the preponderance of the evidence is against service connection for allergic rhinitis. The evidence reflects that allergic rhinitis did not have its onset in service and is not otherwise related to service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). During the appellant’s service entrance examination, the appellant reported that he then had, or that had had, hay fever. However, a clinical examination was negative for that disorder; and, therefore, the appellant is presumed to have been in sound physical condition with respect to hay fever on service entry. STRs reflect no complaints or findings for allergic rhinitis. Service separation examination reflects normal clinical evaluation and no diagnosis for allergic rhinitis. Allergic rhinitis or hay fever was not reported again until June 2004, many years after the appellant’s separation from active service. The normal medical findings at the time of the appellant’s separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence weighing against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the appellant has not identified or submitted any competent, credible evidence that links his allergic rhinitis to his active service. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 8. Entitlement to service connection for an acquired psychiatric disorder. The appellant contends that he has depression. He does not explain why believes that service connection is warranted for this disorder. The Board concludes that the preponderance of the evidence is against service connection for an acquired psychiatric disorder to include depression. The disability did not have its onset in service and is not otherwise related to service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). STRs are negative for any complaints or clinical findings of a psychiatric disability. Service separation examination reflects normal clinical evaluation of het psychiatric system. A chronic, identifiable psychiatric disability is first documented in December 2011, when the appellant was hospitalized by VA for depression. A June 2013 VA examination report reflects a diagnosis for major depressive disorder. At this time, the appellant denied the history of military sexual trauma or physical trauma in service but noted difficulty in his courses as an electronic warfare equipment repairman. He suggested that that was traumatic in itself. However, he stated that he did not notice a problem with his mental health until 2010, when he was incarcerated and noticed that he wasn’t fitting into society, wasn’t achieving, and wasn’t normal. He expressed his concerns to the mental health professional in the penal system but acknowledged that he did not receive treatment. The examiner opined that the disorder was not incurred in or caused by the appellant’s military service. The appellant related his depressive symptoms to his unemployment, marital distress, and estrangement from his children which the examiner noted were separate and distinct from the appellant’s military service. To the extent that the appellant links his depressive disorder to service, the Board finds that he is not competent or credible in this matter given the normal service separation examination and the many years intervening service and the first documented findings for psychiatric disorder. Therefore, his appellant’s belief in this matter has no probative value. The Board assigns greater probative value to the normal service separation examination and the many years intervening service and the first documented findings for psychiatric disorder. See Curry, supra; see also, Maxson, supra. Additionally, the Board assigns greater probative to the negative June 2013 VA medical opinion because it was prepared by a skilled, neutral medical professional after examining the appellant and reviewing the medical history and claims file. The appellant has not presented a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 9. Entitlement to service connection for hypertension. 10. Entitlement to service connection for erectile dysfunction (ED). 11. Entitlement to service connection for prostate disorder. 12. Entitlement to service connection for toenail fungus (onychomycosis). Issues 9-12. The appellant contends that service connection is warranted for hypertension, ED, prostate disorder, and toenail fungus (onychomycosis). He does not fully explain why believes that service connection is warranted for these disorders, or provide any specific theories of entitlement. The Board concludes that the preponderance of the evidence is against service connection for hypertension, ED, prostate disorder, and toenail fungus (onychomycosis). The disabilities claimed did not have their onset in service and are not otherwise related to service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(a). STRs are negative for complaints or clinical findings of hypertension, ED, prostate disorder, and toenail fungus. Service separation examination reflects normal clinical evaluation. Hypertension is not shown within the initial post separation year. The claimed disabilities are first shown many years after the appellant’s separation from service. Hypertension is first documented in November 2005 during VA treatment. Erectile dysfunction is first documented in March 2013 during VA treatment. An enlarged prostate is first documented in June 2013 during VA psychiatric examination, and benign prostatic hypertrophy was reported during VA treatment in January 2016. Toenail fungus, diagnosed as onychomycosis, is first documented in June 2004 during VA treatment. Although the Veteran may believe that the claimed conditions are somehow related to his active service, the evidence of record shows no indication that this is so. The Board assigns greater probative value to the normal service separation examination and the many years intervening service and the first documented findings for the claimed problems. See Curry, supra; see also, Maxson, supra. The appellant has not presented a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claims. (Continued on the next page)   Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel