Citation Nr: A19003573 Decision Date: 12/16/19 Archive Date: 12/16/19 DOCKET NO. 180711-12137 DATE: December 16, 2019 ORDER New and relevant evidence has not been submitted to warrant readjudicating the claim of entitlement to service connection for nosebleeds. Service connection for a neck disorder is denied. Service connection for allergies is denied. Service connection for asthma is denied. Service connection for sleep apnea is denied. Service connection for diabetes mellitus is denied. Service connection for hepatitis C is denied. Service connection for a bilateral knee disorder is denied. Service connection for a psychiatric disorder, claimed as posttraumatic-stress disorder (PTSD), is denied. FINDINGS OF FACT 1. In a July 1987 rating decision, the claim of entitlement to service connection for nosebleeds was denied on the basis that it was not incurred in, or otherwise related to service, and/or that there was evidence of a current condition. 2. The evidence associated with the claims file subsequent to the July 1987 rating decision does not tend to prove or disprove a matter in issue with regards to the claim of entitlement to service connection for nosebleeds as the Veteran does not have a current disorder related to nosebleeds. 3. The Veteran does not have a current diagnosis of a neck disorder for VA compensation purposes. 4. The Veteran does not have a current diagnosis of allergies for VA compensation purposes. 5. The Veteran’s asthma was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service. 6. The Veteran’s sleep apnea was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service. 7. The Veteran’s diabetes was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service. 8. The Veteran’s hepatitis C was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service. 9. The Veteran’s bilateral knee disorder was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service. 10. The Veteran’s psychiatric disorder was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. The July 1987 rating decision that denied entitlement to service connection for nosebleeds is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for nosebleeds have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for allergies have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309 6. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 7. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 8. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 9. The criteria for entitlement to service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 10. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1973 to November 1973, from May 1974 to August 1974, and from November 1974 to November 1977. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C. § 5108, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). The Veteran selected the Higher-Level review lane when he submitted the RAMP election form. The Veteran timely appealed this RAMP decision to the Board and requested direct review of the evidence considered by the RO. The Board observes that in March 2019, the Veteran made several Freedom of Information (FOIA) requests for his military personnel records, as well as for VA to obtain additional records. In December 2018, the Veteran was provided a compact disc (CD) with a copy of the entire claims file. Therefore, as no additional evidence or dispositions have been associated with the claims file since December 2018, the Board finds that all requested documents have been provided to the Veteran. Additionally, to the extent that the Veteran is requesting that VA obtain additional records, the Board finds that the RO has obtain all relevant and available records to adjudicate the claim under AMA. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board acknowledges that the Veteran filed a claim of entitlement to service connection for a psychiatric disorder. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Therefore, as reflected herein, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Relevant Evidence 1. Whether new and relevant evidence has been submitted to reopen the claim of entitlement to service connection for nosebleeds VA will readjudicate a claim if new and relevant evidenced is presented or secured. AMA, Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. AMA, Pub. L. No. 115-55, § 101(35), 131 Stat. 1105, 1105. The question in this case is whether the Veteran submitted evidence after the prior final denial of his claim for service connection for hypertension in the legacy system, in July 1987, and if so, whether that evidence is new and relevant to his claim. The Veteran’s claim for service connection for nosebleeds was previously denied by the RO in a July 1987 rating decision on the basis that it was not incurred in, or otherwise related to service. Further, there was also no evidence of a current condition. The Veteran did not appeal this decision and no new and material evidence received within one year of the issuance of the decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the July 1987 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. After reviewing the evidence of record, the Board finds that new and relevant evidence has not been submitted after the prior final decision in July 1987. Although the Veteran has submitted new evidence, including statements and medical records, however, such evidence is not relevant to the claim because it does not prove or disprove a matter in the issue. Indeed, there is no new evidence pertaining to whether the Veteran may currently have nosebleeds that is related to his military service. Specifically, while the records reflect a past history of nosebleeds, the VA medical treatment records, including from August 2013, January 2014, and March 2014 do not demonstrate that the Veteran has any current symptoms and/or a disorder related to nosebleeds. Moreover, the Veteran assertions (i.e., that he has a condition related to nosebleeds) were the same arguments that were previously of record. Accordingly, the Board finds that new and relevant evidence has not been presented to reopen the previously denied claim for service connection for nosebleeds. Service Connection 2. Entitlement to service connection for a neck disorder 3. Entitlement to service connection for allergies 4. Entitlement to service connection for asthma 5. Entitlement to service connection for sleep apnea 6. Entitlement to service connection for diabetes mellitus 7. Entitlement to service connection for hepatitis C 8. Entitlement to service connection for a bilateral knee disorder 9. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD The Veteran asserts that his neck, allergies, asthma, psychiatric disorder, sleep apnea, diabetes, hepatitis C, and bilateral knee disorder are all related to active service. Specifically, he asserts that many of his disorders were caused by hs exposure to radiation while transporting radiative materials. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309. As an initial matter, the Board concludes that the Veteran does not have a current diagnosis of a neck disorder and allergies, and has not had one of these disorders at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Specifically, aside from a skin rash on his neck (for which the Veteran is already service connected), the Board finds that after a thorough reading of the evidence of record, including the Veteran’s treatment records from November 2014, July 2015, April 2016, the evidence does not reflect a current diagnosis related to a neck disorder at any time during the period on appeal. Similarly, with respect to the Veteran’s claim for allergies, the medical evidence, including the VA treatment records from January 2014, March 2014, November 2015, and April 2016, reflect that he does not have any current allergies (seasonal or otherwise) during the period on appeal (or recent thereto) for VA compensation purposes. The Board acknowledges the Veteran’s assertions and belief that he has a neck disorder and allergies, however, he is not competent to provide a diagnosis in this case. The issue of a diagnosis is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, given that the Veteran is competent to report neck pain, numbness, weakness, and/or limitation of motion, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which indicates that pain can constitute a “disability” under 38 U.S.C. § 1110. However, the Board notes that to the extent the Veteran is experiencing neck pain and related symptomology, there is no evidence that these symptoms cause any functional limitation. Of note, the Veteran’s VA treatment records are not sufficient to evidence any current neck pain or related symptomatology, to include functional loss. Therefore, as a whole, the medical evidence is insufficient demonstrate functional limitation that would constitute a disability for VA purposes. See Id. As such, the preponderance of the evidence is against a finding that the Veteran has a neck disorder and/or allergies at any point during the time on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Further, with respect to the Veteran’s claim that he was exposed to ionizing radiation while transporting radiative material, the Board finds that the evidence of record is not sufficient to concede exposure. Specifically, the Veteran’s military personnel records reflect that his military occupational specialty was a truck driver. However, there is no evidence, aside from the Veteran’s assertions, that he transported radioactive materials. In any event, even if exposure was conceded, the Board determines that presumptive service connection under 38 C.F.R. §§ 3.309 and 3.311, pertaining to ionizing radiation, is not for application because the Veteran’s disorders are not radiogenic diseases under 38 C.F.R. § 3.311(b)(1)(2). With respect to asthma, psychiatric disorder, sleep apnea, diabetes, hepatitis C, and a bilateral knee disorder, the Board concludes that, while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that the Veteran’s disorders began during service, was aggravated by, and/or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. In this case, although the Veteran had several bouts of an upper respiratory infection, the Veteran’s service treatment records do not demonstrate any chronic symptoms or a diagnosis relating to sleep apnea and asthma. Similarly, while the Veteran had a single report of right knee pain during service, the service treatment records are not sufficient to evidence chronic symptoms or a diagnosis of a bilateral knee disorder. Additionally, the service treatment records are silent for any signs, symptoms, complaints, or a diagnosis related to a psychiatric disorder, diabetes, and hepatitis C. Indeed, the Veteran’s September 1977 separation examination does not reflect any complaints, symptoms, or a diagnosis related to the disorders on appeal. The Board notes that while the post-service medical evidence reports the Veteran’s assertions that his disorders have persisted since service, the medical evidence does not show symptoms or a diagnosis of a psychiatric disorder, hepatitis C, and diabetes until approximately 2001. Further, the medical evidence does not reflect symptoms and/or a diagnosis related to asthma and sleep apnea until 2002 and 2003, respectively. Additionally, the evidence does not report symptoms of a bilateral knee disorder until 2006. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of these disorders since service. In this regard, while the Veteran is competent to report that he experienced symptoms such as breathing problems, psychiatric symptoms such as depression, limitation of motion, pain, weakness, and numbness since service, he is not competent to provide a diagnosis in this case as the issue is medically complex and requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless insufficient by itself to establish a relationship between service and his current symptoms. As an initial matter, the 20 plus year gap in treatment for these disorders weighs against the Veteran’s claims - especially in light of the fact that the Veteran has been treated for other disorders that are not on appeal. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Further, the Veteran’s service records, including his September 1977 separation examination, contradict his assertions that his symptoms have persisted since service. Moreover, the VA examinations and treatment records, including from October 1986, April 1987, March 2001, and April 2014, do not reflect that he had continuous symptoms since service. Additionally, the Board notes that the Veteran filed a claim for VA benefits prior to filing his claims on appeal. The fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to some of the disorders he now claims, weighs heavily against his credibility. Next, although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran’s current symptoms. In this case, the Board places significant value on the opinions of the February 2012 VA examiner who performed a detailed review of the Veteran’s service and medical treatment records and a thorough physical examination. Specifically, the examiner opined that although there was a single incident of a knee injury during service, the service and post-service treatment records do not reflect symptoms of a chronic knee disorder after service. More importantly, the examiner determined that the Veteran’s current bilateral knee disorder was related to a car accident in 2009. Therefore, the Veteran’s bilateral knee disorder was not related to service. Next, the August 2013 VA examiner opined that the Veteran’s sleep apnea and asthma were not related to service. Here, the examiner determined that although the Veteran had an upper respiratory tract infection during service, there was no evidence of a chronic breathing condition – especially in light of the fact that he had a normal pulmonary examination on separation. Further, given the current nature and severity of the Veteran’s asthma and sleep apnea as described in the examination report, the Board infers that the Veteran’s respiratory disorders would have manifested with symptoms prior to 2002 if they were related to service. Moreover, with respect to sleep apnea, the examiner also determined that it was more likely than not related to the Veteran’s obesity. Regarding the Veteran’s hepatitis C, in citing the relevant medical research, the February 2016 VA examiner opined that the Veteran’s hepatitis C was more likely related to his “strong history” of cocaine and drug abuse, incarceration, and multiple sexual partners. Further, to the extent the Veteran alleges that he was jaundice during service, the examiner determined that his medical records 10 years after service do not support a finding of hepatitis C at that time. In arriving at this conclusion, the examiner noted the Veteran’s March 2012 private opinion that reflects his hepatitis C was related to an air gun injector. Nevertheless, although the examiner indicated that an air gun injection has a “theoretical” risk of transmitting an infectious agent, “there are no credible medical references showing transmission of [hepatitis C] linked to air gun injector use, and it is not a recognized risk factor for [hepatitis C] transmission.” The Veteran’s medical treatment records report that he first had symptoms of a psychiatric disorder and diabetes in 2001. Thus, there is not sufficient evidence in the medical records to demonstrate a relationship between his active service and his diabetes and psychiatric disorder. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a relationship between the disorders on appeal and active service. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his disorders to active service. While the Veteran believes that these disorders are related to service, he is not competent to provide testimony regarding the diagnosis and etiology of these disorders as he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. See Jandreau, 492 F.3d at 1377, n.4. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the service connection claims, and there is no doubt to be otherwise resolved. As such, the appeal is denied.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Meyer, Associate Counsel