Citation Nr: 19123333 Decision Date: 03/28/19 Archive Date: 03/27/19 DOCKET NO. 18-03 642 DATE: March 28, 2019 ORDER As new and material evidence has been received, the claim for service connection for residuals of acute blood poisoning of the left leg is reopened, and to that extent only the claim is allowed. Entitlement to service connection for residuals of acute blood poisoning of the left leg is denied. FINDING OF FACT 1. The evidence received since a June 2014 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of acute blood poisoning of the left leg. 2. The preponderance of the evidence of record is against a finding that the Veteran has residuals of acute blood poisoning of the left leg. CONCLUSION OF LAW 1. The June 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.200, 20.202, 20.204, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for residuals of acute blood poisoning of the left leg. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for residuals of acute blood poisoning in left leg have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1954 to October 1957. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). NEW AND MATERIAL EVIDENCE Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. 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 substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). A June 2014 rating decision denied service connection for residuals of acute blood poisoning of the left leg because the medical evidence of record did not show that the claimed disability has been clinically diagnosed. The Veteran’s service medical records, including the separation examination, did not contain complaints, treatment, or diagnosis for any residual left leg condition. Thus, the claim was denied This June 2014 rating decision became final when the Veteran did not perfect an appeal in a timely manner. The Veteran has since provided private medical examinations from March 2015 and June 2015, pertaining to the Veteran’s current leg condition that show that the Veteran currently has radiculopathy of the left leg. The full results of the examination are now of record in the claims file. The credibility of the newly submitted evidence is presumed in determining whether the new evidence is material. Justus v. Principi, 3 Vet. App. 510 (1992). As the March 2015 and June 2015 medical examinations are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, that evidence raises a reasonable possibility of substantiating the claim as a current left leg disability is shown. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for residuals from acute blood poisoning of the left leg is reopened. SERVICE CONNECTION Service connection may be established for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In that instance, the Veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In circumstances where the Veteran’s service medical records are destroyed or missing through circumstances not the fault of the Veteran, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully resolving reasonable doubt in favor of the Veteran. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). 1. Service connection for residuals of acute blood poisoning in the left leg The Veteran claims that a current left leg disability is due to an injury incurred during active service. Specifically, the Veteran claims that in service in 1950 he sustained a left leg infection as a result of an improperly treated minor cut from a rusty metal object. The Board notes that the Agency of Original Jurisdiction (AOJ) has exhausted all efforts to obtain the Veteran’s service medical records. In cases with missing service records, VA has a heightened duty to explain its findings and conclusions and to consider carefully resolving reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); O’Hare v. Derwinski, 1 Vet. App. 365 (1991). However, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The legal standard for proving a claim for service connection is not lowered, but rather the Board’s obligation to evaluate and discuss in a decision all the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). The only service medical record the VA has been able to successfully obtain was the Veteran’s August 1957 separation examination. That examination found the Veteran to have normal lower extremities and feet. The only complaints during that examination pertain to dental defects and are not relevant to the matter on appeal. To establish a service connection for a disability, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board finds that the competent, credible, and probative evidence of record does not establish that the Veteran has any current residuals stemming from an acute blood poisoning in his left leg. The only medical evidence of record that may support the Veteran’s claim of a current left leg disability are private medical examinations from March 2015 and June 2015. During those examinations, the Veteran complained of bilateral leg pain. As a result, the Veteran was diagnosed with lumbar radiculopathy, secondary to a lumbar spine disability. The Veteran is not service connected for any lumbar spine disability. In addition, as the etiology of the bilateral lumbar radiculopathy was due to a lumbar spine disability, the Board finds that it is not at least as likely as not that any left leg disability is due to any disease or injury during service. The Veteran currently has a nonservice-connected back disability that has leg implications. There is no evidence in the record that shows that the Veteran has ever been diagnosed with or treated for a left leg disability that has been related to any incident of service. There is also no medical evidence in the record that suggests that the Veteran has ever had acute blood poisoning. Furthermore, had there been any acute blood poisoning, that statement implies that it was acute, and thus resolved. The preponderance of the evidence of record is against a finding that there is any current left leg disability that is a residual of any acute blood poisoning of the left leg during service. The left leg disability of record, lumbar radiculopathy, is shown to be due to a nonservice-connected lumbar spine disability. The Board acknowledges the Veteran’s assertions that a claimed in-service incident or injury caused a current disability. The Board has considered the Veteran’s lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis or etiological opinion for complex disabilities such as the residuals of acute blood poisoning. Layno v. Brown, 6 Vet. App. 465 (1994). Here, while the Veteran may state that he experiences fatigue or pain, he is not competent to provide a diagnosis of a specific disability, or to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To date, the Veteran has not provided any competent medical evidence that he has a currently diagnosed left leg disability stemming from any in-service event. In the absence of evidence showing that the Veteran has a current left leg disability or any residuals from an acute blood poisoning, service connection cannot be established. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the competent and probative evidence is against the claim. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Attorney Advisor