Citation Nr: 18160740 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-45 656 DATE: December 27, 2018 ORDER New and material evidence having not been received, the claim of entitlement to service connection for bilateral pes planus is not reopened. New and material evidence having not been received, the claim of entitlement to service connection for right eye astigmatism is not reopened. New and material evidence having not been received, the claim of entitlement to service connection for schizophrenia is not reopened. New and material evidence having not been received, the claim of entitlement to service connection for tinnitus is not reopened. Service connection for a right leg condition is denied. Service connection for sleep apnea is denied. Service connection for hypertension is denied. Service connection for residuals of inguinal hernia repair is denied. Service connection for Hepatitis C is denied. Service connection for diabetes mellitus type II (diabetes) is denied. REMANDED Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. In an August 1985 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim of entitlement to service connection for bilateral pes planus; a timely notice of disagreement (NOD) was not filed and no new and material evidence was received within the appeal period. 2. Evidence received since the August 1985 decision is either cumulative or redundant of the evidence of record at the time of the August 1985 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for bilateral pes planus. 3. In a September 1979 rating decision, the AOJ denied the claim of entitlement to service connection for right eye astigmatism; a timely NOD was not filed and no new and material evidence was received within the appeal period. 4. Evidence received since the September 1979 decision is either cumulative or redundant of the evidence of record at the time of the September 1979 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for right eye astigmatism. 5. In a September 2007 rating decision, the AOJ declined to reopen the claim of entitlement to service connection for schizophrenia; a timely NOD was not filed and no new and material evidence was received within the appeal period. 6. Evidence received since the September 2007 decision is either cumulative or redundant of the evidence of record at the time of the September 2007 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for schizophrenia. 7. In a September 2008 rating decision, the AOJ denied the claim of entitlement to service connection for tinnitus; a timely NOD was not filed and no new and material evidence was received within the appeal period. 8. Evidence received since the September 2008 decision is either cumulative or redundant of the evidence of record at the time of the September 2008 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for tinnitus. 9. The weight of the competent and probative evidence is against finding a diagnosed right leg condition or related functional impairment during the period on appeal. 10. The weight of the competent and probative evidence is against finding sleep apnea or related functional impairment during the period on appeal. 11. The weight of the competent and probative evidence is against finding that hypertension had its onset in or is otherwise related to the Veteran’s period of active service. 12. The weight of the competent and probative evidence is against finding that the Veteran’s inguinal hernia had its onset in or is otherwise related to his period of active service. 13. The weight of the competent and probative evidence is against finding that Hepatitis C had its onset in or is otherwise related to the Veteran’s period of active service. 14. The weight of the competent and probative evidence is against finding that diabetes had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The August 1985 decision denying the claim of entitlement to service connection for bilateral pes planus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. Evidence received since the August 1985 decision is not new and material; accordingly, the claim of service connection for bilateral pes planus is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The September 1979 decision denying the claim of entitlement to service connection for right eye astigmatism is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. Evidence received since the September 1979 decision is not new and material; accordingly, the claim of service connection for right eye astigmatism is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The September 2007 decision declining to reopen the claim of entitlement to service connection for schizophrenia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 6. Evidence received since the September 2007 decision is not new and material; accordingly, the claim of service connection for schizophrenia is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The September 2008 decision denying the claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 8. Evidence received since the September 2008 decision is not new and material; accordingly, the claim of service connection for tinnitus is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The criteria for entitlement to service connection for a right leg condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 11. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 12. The criteria for entitlement to service connection for residuals of inguinal hernia repair have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 13. The criteria for entitlement to service connection for Hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 14. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to April 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and February 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The March 2014 rating decision continued the 10 percent rating for the Veteran’s skin disability. An October 2014 NOD indicated disagreement with the rating and effective date for the skin disability, but neither issue has been addressed in a statement of the case (SOC). The Board is remanding the claim of entitlement to an increased rating for the skin disability for issuance of an SOC. However, as the March 2014 rating decision did not assign an effective date, the October 2014 NOD does not constitute an NOD regarding an earlier effective date; rather, it is a freestanding claim for an earlier effective date because it was not received within the appellate period of the August 1988 rating decision that granted service connection or the June 2009 rating decision that assigned a 10 percent rating for pseudofolliculitis barbae. As VA has no authority to adjudicate a freestanding earlier-effective-date claim, the Board declines to refer the claim for adjudication. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). New and Material Evidence Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers, or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus. In an August 1985 rating decision, the AOJ denied the claim of service connection for bilateral pes planus on the grounds that pes planus preexisted service and was not aggravated by the Veteran’s period of active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the August 1985 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the August 1985 decision. VA has not received new evidence since the August 1985 decision that tends to show in-service aggravation of bilateral pes planus. Accordingly, the Board finds that evidence received since the August 1985 decision is either cumulative or redundant of the evidence of record at the time of the August 1985 denial, as it does not tend to support an increase in the severity of pes planus during the Veteran’s period of active service, or that any post-service increase in severity is due to service. As new and material evidence has not been received, the claim of entitlement to service connection for bilateral pes planus is not reopened. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right eye astigmatism. In a September 1979 rating decision, the AOJ denied the claim of service connection for right eye astigmatism on the grounds that the eye condition was a constitutional or developmental abnormality that preexisted service and was not aggravated by the Veteran’s period of active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the September 1979 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the September 1979 decision. VA has not received new evidence since the September 1979 decision that tends to show in-service aggravation of right eye astigmatism. Accordingly, the Board finds that evidence received since the September 1979 decision is either cumulative or redundant of the evidence of record at the time of the September 1979 denial, as it does not tend to support an increase in the severity of right eye astigmatism during the Veteran’s period of active service, or that any post-service increase in severity is due to service. As new and material evidence has not been received, the claim of entitlement to service connection for right eye astigmatism is not reopened. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for schizophrenia. In a September 2007 rating decision, the AOJ declined to reopen the claim of service connection for schizophrenia because new and material evidence had not been received tending to show that pre-existing schizophrenia was aggravated by the Veteran’s period of active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the September 2007 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the September 2007 decision. VA has not received new evidence since the September 2007 decision that tends to show in-service aggravation of schizophrenia. Accordingly, the Board finds that evidence received since the September 2007 decision is either cumulative or redundant of the evidence of record at the time of the September 2007 denial, as it does not tend to support an increase in the severity of schizophrenia during the Veteran’s period of active service, or that any post-service increase in severity is due to service. As new and material evidence has not been received, the claim of entitlement to service connection for schizophrenia is not reopened. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. After reviewing the record, the Board finds that evidence received since the September 2008 decision denying service connection for tinnitus is either cumulative or redundant of the evidence of record at the time of the September 2008 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for tinnitus. In September 2008, the AOJ denied service connection for tinnitus based on the lack of a nexus between the current disorder and the Veteran’s period of service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the September 2008 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the September 2008 decision. VA has not received new evidence since the September 2008 decision that relates to in-service complaints of, treatment for, signs or symptoms of, or a diagnosis of tinnitus. Nor has VA received new evidence since the September 2008 decision relevant to whether the Veteran’s current disorder had its onset in or is otherwise related to his period of service. As new and material evidence has not been received, the claim of entitlement to service connection for tinnitus is not reopened. 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Certain chronic diseases, including hypertension and diabetes, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 5. Entitlement to service connection for a right leg condition. After review of the record, the Board finds that the criteria for service connection for a right leg condition have not been met. The record does not contain a diagnosis of a right leg condition or show functional impairment during the period on appeal. Without competent evidence of a right leg condition during the period on appeal, the Board must deny the Veteran’s claim. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 6. Entitlement to service connection for sleep apnea. After review of the record, the Board finds that the criteria for service connection for sleep apnea have not been met. The record does not contain a diagnosis of sleep apnea, or another sleep disorder, during the period on appeal. Without competent evidence of sleep apnea or resulting functional impairment during the period on appeal, the Board must deny the Veteran’s claim. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 7. Entitlement to service connection for hypertension. After review of the record, the Board finds that the criteria for service connection for hypertension have not been met. The record contains a competent diagnosis of hypertension. 03/18/2014, CAPRI. Accordingly, the Board finds competent evidence of a current disorder. The Veteran’s service treatment records do not contain complaints of, treatment for, or a diagnosis of hypertension, nor do they contain hypertensive blood pressure readings, during his period of active service. 06/18/1979, STR-Medical; see also 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1) (defining hypertension as diastolic blood pressure predominantly 90mm or greater; and defining isolated systolic hypertension as systolic blood pressure predominantly 160mm or greater with a diastolic blood pressure of less than 90mm). A September 2013 treatment note indicates a history of hypertension. 03/18/2014, CAPRI. Treatment records prior to September 2013 do not contain hypertensive blood pressure readings. A VA examination was not provided in conjunction with the Veteran’s claim for hypertension, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). VA has a duty to provide an examination when the record lacks evidence to decide the Veteran’s claim and there is evidence of (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). There is no evidence of complaints of, treatment for, or a diagnosis of hypertension during service and the Veteran has not identified evidence demonstrating that hypertension had its onset in or is otherwise related to service. Accordingly, the Board finds that the duty to provide an examination has not been triggered. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (explaining that something more than a Veteran’s conclusory, generalized statement is needed to trigger VA’s duty to assist by providing a medical nexus examination). In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s hypertension had its onset during or manifested within one year of service, or that it was noted in service with evidence of symptoms on a continuous basis since. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Specifically, the Board notes that there is no evidence of complaints of, treatment for, or a diagnosis of hypertension or related symptoms during service, and the first indication of hypertension is in September 2013, more than 30 years after service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 8. Entitlement to service connection for residuals of inguinal hernia repair. After review of the record, the Board finds that the criteria for service connection for residuals of inguinal hernia repair have not been met. The record contains a competent diagnosis of right inguinal hernia, with a right inguinal hernia repair in September 2009. 03/17/2015, CAPRI; 09/30/2009, Hospitalization. A VA examination was not provided in conjunction with the Veteran’s claim for residuals of inguinal hernia repair, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). There is no evidence of complaints of, treatment for, or a diagnosis of inguinal hernia during service and the Veteran has not contended that inguinal hernia had its onset in or is otherwise related to service. The first indication of right inguinal hernia is in a February 2008 problem list. 03/17/2015, CAPRI. Accordingly, the Board finds that the duty to provide an examination has not been triggered. See Waters, 601 F.3d at 1278-79. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s right inguinal hernia manifested during or is otherwise related to his period of service. See 38 C.F.R. § 3.303. Specifically, the Board notes that there is no evidence of complaints of, treatment for, or a diagnosis of inguina hernia or related symptoms during service, and the first indication of right inguinal hernia is in February 2008, more than 28 years after service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 9. Entitlement to service connection for Hepatitis C. After review of the record, the Board finds that the criteria for service connection for Hepatitis C have not been met. The record contains a competent diagnosis of Hepatitis C. 03/17/2015, CAPRI. Accordingly, the Board finds competent evidence of a current disorder. A VA examination was not provided in conjunction with the Veteran’s claim for Hepatitis C, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). There is no evidence of complaints of, treatment for, or a diagnosis of Hepatitis C during service and the Veteran has not contended that Hepatitis C had its onset in or is otherwise related to service. The first indication of Hepatitis C is in a November 2001 personal medical history. 09/03/2016, CAPRI. Accordingly, the Board finds that the duty to provide an examination has not been triggered. See Waters, 601 F.3d at 1278-79. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that Hepatitis C manifested during or is otherwise related to the Veteran’s period of active service. See 38 C.F.R. § 3.303. Specifically, the Board notes that there is no evidence of complaints of, treatment for, or a diagnosis of Hepatitis C or related symptoms during service, and the first indication of Hepatitis C is in a November 2001 personal medical history, more than 21 years after service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 10. Entitlement to service connection for diabetes. After review of the record, the Board finds that the criteria for service connection for diabetes have not been met. The record contains a competent diagnosis of diabetes. 03/17/2015, CAPRI. Accordingly, the Board finds competent evidence of a current disorder. A VA examination was not provided in conjunction with the Veteran’s claim for diabetes, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). There is no evidence of complaints of, treatment for, or a diagnosis of diabetes during service and the Veteran has not contended that diabetes had its onset in or is otherwise related to service. The record contains a September 2006 high glucose reading, and in January 2007 the Veteran reported being diagnosed with diabetes a few months prior. 03/15/2007, CAPRI; 03/17/2015, CAPRI. Accordingly, the Board finds that the duty to provide an examination has not been triggered. See Waters, 601 F.3d at 1278-79. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s diabetes had its onset during or manifested within one year of service, or that it was noted in service with evidence of symptoms on a continuous basis since. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Specifically, the Board notes that there is no evidence of complaints of, treatment for, or a diagnosis of diabetes or related symptoms during service, and the first indication of diabetes is in September 2006, more than 27 years after service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae is remanded. As previously noted, an October 2014 NOD indicated disagreement with the March 2014 rating decision’s continuation of a 10 percent rating for the Veteran’s skin disability. The AOJ has not issued an SOC regarding entitlement to an increased rating for the skin disability. As such, the Board has no discretion, and the issue must be remanded for such a purpose. Manlincon v. West, 12 Vet. App. 238, 240 (1999); 38 C.F.R. § 19.9(c). The matter is REMANDED for the following action: Send the Veteran a statement of the case that addresses the issue of entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel