Citation Nr: 19174232 Decision Date: 09/24/19 Archive Date: 09/24/19 DOCKET NO. 19-00 459A DATE: September 24, 2019 ORDER The request to reopen a claim of entitlement to service connection for a back disability is denied. The request to reopen a claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. The request to reopen a claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to a compensable rating for the residuals of a right inguinal herniorrhaphy is denied. FINDINGS OF FACT 1. An unappealed August 2009 Board of Veterans’ Appeals (Board) decision denied service connection for a back disorder; subsequently received evidence is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 2. An unappealed August 2009 Board decision denied entitlement to service connection for sciatica of the right lower extremity (now claimed as peripheral neuropathy of the right lower extremity); subsequently received evidence is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 3. An unappealed August 2004 rating decision by the Agency of Original Jurisdiction (AOJ) denied service connection for a leg disorder, including radiation of pain down the left leg; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 4. The appellant’s peripheral neuropathy of the left upper extremity was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 5. The appellant’s peripheral neuropathy of the right upper extremity was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 6. The appellant’s residuals of a right inguinal herniorrhaphy primarily include discomfort without recurrence of the hernia during the appellate period. CONCLUSIONS OF LAW 1. The August 2009 Board 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. §§ 5108, 7104, 7252; 38 C.F.R. §§ 3.156(a), 20.1100. 2. The August 2009 Board decision denying the claim for service connection for sciatica of the right lower extremity (now claimed as peripheral neuropathy of the right lower extremity) is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7104, 7252; 38 C.F.R. §§ 3.156(a), 20.1100. 3. The August 2004 rating decision denying the claim for service connection for a leg disability, including radiation of pain down the left leg, is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 4. The criteria for service connection for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for a compensable rating for the residuals of a right inguinal herniorrhaphy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from February 1970 to February 1971. This matter is before the Board on appeal from rating decisions issued in March 2018 and May 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his representative were notified that the instant appeal had been placed on the Board’s docket in June 2019, and that they had 90 days to submit argument in support of the appeal. As the Veteran’s representative has been afforded the opportunity to present argument, the Board will proceed to adjudicate the appeal on the merits. 38 C.F.R. § 20.600. New and Material Evidence A claim that has been denied in an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104. 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 of the Department of Veterans Affairs (VA) shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA 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). Regardless of whether the Agency of Original Jurisdiction (AOJ) found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Claim to reopen service connection for a back disability and peripheral neuropathy of the right lower extremity. The appellant contends that he injured his back in service while lifting heavy equipment as an apprentice fireman. He states that he received medical treatment in service and that his back has continued to bother him since that time. Therefore, he contends that service connection is warranted on a direct basis. In the alternative, he contends that the inservice injury resulted in increased disability due to his pre-service scoliosis. Therefore, he maintains that service connection is warranted on the basis of aggravation. In addition, the appellant contends that his right peripheral neuropathy, including right sciatica, is proximately due to or has been aggravated by his back disorder and that service connection is warranted for right sciatica on a secondary basis. Finally, the appellant contends that his peripheral neuropathy is the result of his exposure to toxic substances in service. A review of the record discloses that these are not the appellant’s first claims entitlement to service connection for a back disorder and right sciatica. Those claims were denied by the Board in August 2009. The Board found that the appellant had a back disorder, diagnosed as scoliosis which had been present prior to but had not been aggravated by service. The Board also found that right sciatica had been initially manifested many years after service and that it had been unrelated to service or to a disability for which service connection had already been established. The appellant was notified of those decisions, as well as his right to appeal to the United States Court Appeals for Veterans Claims (Court). However, he did not file a notice of appeal with the Court, and therefore, the Board’s decisions became final under the law and regulations then in effect. 38 U.S.C. §§ 7104, 7266; 38 C.F.R. § 20.1100. He now requests that those claims be reopened. Relevant evidence added to the record since the Board’s August 2009 decisions consists of treatment records from the NeuroMedical Center Clinic, dated in November 2009; records reflecting the appellant’s VA treatment from June 2008 through October 2018; a February 2015 statement from B.L.C., M.D.; and the report of an April 2018 VA examination. 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 substantiate the claim. Although the February 2015 statement from Dr. C. suggests that service connection for right sciatica is warranted, that statement is cumulative or redundant of a May 2005 statement from Dr. C. which was part of record and considered by the Board in conjunction with its August 2009 decision. Moreover, the evidence, such as the report of the April 2018 VA examination, shows that appellant’s back disability was not related directly to any injury, disease, or other event in service and that his preservice scoliosis had not been aggravated by any inservice back injury, disease, or other event in service. Indeed, the examiner noted that the appellant had received no treatment or care for his back for thirty-three years after service. 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 back disability. The evidence does show that the right sciatica is related to the appellant’s back disability, However, absent service connection for a back disorder, the claim of secondary service connection for right sciatica is moot. Finally, the appellant contends that his peripheral neuropathy is a residual of his exposure to toxic substances in service. However, no evidence has been received to substantiate that opinion, and the Board notes that he is not competent to render such an opinion. The issue is medically complex and require specialized knowledge and experience with several areas of medical expertise, including orthopedics and neurology and interpretation of imaging studies. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the additional evidence submitted in support of the claims for service connection for back disability and right sciatica is not new and material. Therefore, the appellant does not meet the criteria to reopen those claims. Accordingly, the appeal is denied. 2. Claim to reopen service connection for peripheral neuropathy of the left lower extremity. The appellant contends that his peripheral neuropathy of the left lower extremity including radiation of pain down the left leg, is primarily due to his back disability and that service connection is warranted on a secondary basis. In the alternative, he contends that it is the result of exposure to toxic substances in service. As above, this is not the appellant’s first claim of service connection for left sciatica. In August 2004, the AOJ denied entitlement to service connection for a left leg disorder, manifested by left leg pain radiating from the appellant’s low back. The AOJ found that left leg pain was first manifested many years after service and was unrelated to any incident in service. The appellant was also notified of that decision, as well as his appellate rights. However, he did not file a Notice of Disagreement with which initiate an appeal. Therefore, the AOJ’s decision became final under the law and regulations then in effect. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.1103. He now requests that his claim for service connection for a left leg disorder including left sciatica be reopened. Relevant evidence added to the record since the AOJ’s August 2004 decision consists of records reflecting the appellant’s VA treatment from March 2003 through October 2018; statements from B.L.C., M.D., dated in May 2005, December 2008, and February 2015; reports of VA examinations performed in July 2009 and April 2018; and treatment records from the NeuroMedical Center Clinic, dated in November 2009. 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 substantiate the claim. The evidence, such as the reports of the VA examinations, continues to show that left leg pain, diagnosed as left sciatica, was first manifested many years after service and is unrelated to any event in service, including his pre-service scoliosis. Thus, service connection is not warranted on a direct or presumptive basis or by aggravation. Although the evidence shows that left sciatica is associated with the appellant’s low back degenerative joint disease and degenerative disc disease, service connection has not been established for a low back disability. Accordingly, the question of service connection on a secondary basis is moot. 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 left sciatica. The only other evidence of service connection continues to come from the appellant. As above, however, he is not competent to render a credible medical opinion. Jandreau, 492 F.3d 1372. In sum, the additional evidence submitted in support of the claim for service connection for peripheral neuropathy, including left sciatica, is not new and material. Therefore, the appellant does not meet the criteria to reopen that claim; and the appeal is denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Certain chronic diseases, such as arthritis and organic diseases of the nervous system, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for peripheral neuropathy of the right and left upper extremity. The appellant contends that the peripheral neuropathy of his upper extremities is primarily the result of his back disability. In the alternative, he contends that it is the result of his exposure to toxic substances in service. However, after reviewing the record in light of the applicable law and regulations, the Board finds the preponderance of the evidence against those claims. The appellant’s service medical records, including the reports of his October 1969 service entrance examination and his February 1971 service separation examination are negative for any complaints or clinical findings of peripheral neuropathy of the upper extremities. Indeed, during his service separation examination, he felt that he was in good health. He denied the presence of neuritis, and his upper extremities and neurologic processes were found to be normal. Post-service records are similarly negative. As above, the only evidence of a nexus between neuropathy of the upper extremities and service comes from the appellant, an opinion he is not qualified to make. Jandreau, 492 F.3d 1372. Absent a chronic, identifiable disorder of the upper extremities manifested by neuropathy in or after service, the appellant does not meet the criteria for service connection. Accordingly, service connection is not warranted, and the appeal is denied. There is no doubt to resolve. 38 U.S.C. §§ 5107; 38 C.F.R. § 3.102. 2. Entitlement to a compensable rating for the residuals of a right inguinal herniorrhaphy. The appellant contends that he has chronic discomfort in the area of the surgery to correct a right inguinal hernia. Therefore, he seeks a compensable rating for the residuals of a right herniorrhaphy. However, after reviewing the record in light of the applicable law and regulations, the Board finds the preponderance of the evidence against that claim. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The residuals of surgery to repair an inguinal hernia are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Code 7338. A noncompensable rating is warranted for an inguinal hernia when the hernia is small and reducible, or when there is no true hernia protrusion. A 10 percent rating is warranted when a post-operative hernia is readily reducible and well-supported by a truss or belt. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The appellant filed his claim for an increased rating in December 2017. During a February 2018 VA examination, it was noted that the appellant had sustained a right inguinal hernia in service and that he had complained of chronic discomfort in the area of the hernia repair. It was noted that the hernia had not recurred; that there was no indication for a supporting belt; and that he had had no further hernia surgery. It was further noted that his hernia condition had had no impact on his ability to work. VA treatment records from the period on appeal contain no assessments of the severity of the Veteran’s right herniorrhaphy. Absent a recurrent, readily reducible hernia or need for a supporting truss or belt or evidence of an impact on his ability to work, the appellant does not meet or more nearly approximate the criteria for a compensable rating for his service-connected   residuals of a right herniorrhaphy. There is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harold A. Beach, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.