Citation Nr: 20005482 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 18-45 042 DATE: January 23, 2020 ORDER The petition to reopen the claim for service connection for asthma is denied. The petition to reopen the claim for service connection for diabetes mellitus, type II (DMII) is denied. REMANDED A rating higher than 20 percent for degenerative arthritis of the lumbar spine is remanded. A rating higher than 10 percent for radiculopathy of left sciatic nerve is remanded. A compensable rating for hemorrhoids is remanded. FINDINGS OF FACT 1. A July 2005 rating decision denied service connection for asthma. The Veteran did not file an appeal to the decision nor was new and material evidence received within one year of notification. 2. The material added to the record after the July 2005 rating decision denied service connection for asthma does not include evidence that relates to an unestablished fact necessary to substantiate the claim or that is more than cumulative or redundant of that previously considered. 3. An August 2011 rating decision denied service connection for DMII. The Veteran did not file an appeal to the decision nor was new and material evidence received within one year of notification. 4. The material added to the record after the August 2011 rating decision that denied service connection for DMII does not include evidence that relates to an unestablished fact necessary to substantiate the claim or that is more than cumulative or redundant of that previously considered. CONCLUSIONS OF LAW 1. The July 2005 rating decision that denied service connection for asthma is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. As new and material evidence has not been received since the July 2005 denial, the criteria for reopening the claim for service connection for asthma has not been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 3. The August 2011 rating decision that denied service connection for DMII is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 4. As new and material evidence has not been received since the August 2011 denial, the criteria for reopening the claim for service connection for DMII has not been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1983, from September 1990 to August 1991, and from January 2004 to April 2005. Petition to reopen claims for service connection for asthma and DMII To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran’s service connections claims for asthma and DMII were denied in rating decisions in July 2005 and August 2011, respectively. The basis for those denials was that the evidence did not establish a link between those disabilities and service. Since the above-referenced rating decisions, additional evidence has been received, including VA and private treatment records and various statements from the Veteran. Additionally, in September 2016, VA examinations regarding the Veteran’s asthma and DMII were conducted. Those examinations, however, were done as part of a general health assessment of the Veteran and not in conjunction with his claims for service connection. There was no opinion provided on the etiology of the Veterans’ asthma or DMII. Furthermore, the bulk of the new evidence submitted since the final decisions does not relate to either of the claimed disabilities. At best, the evidence only references ongoing respiratory and DMII symptoms and diagnoses. This evidence is new because it was not part of the record at the time of either the July 2005 or August 2011 rating decisions, but it is not material because it does not relate to a previously unestablished element of either claim. The evidence only establishes the continued presence of current disabilities and does not raise a reasonable possibility of substantiating either claims. The Board finds significant that neither the Veteran nor his attorney have identified or submitted any evidence which would support the claims to reopen and, in particular to the Veteran’s claim for service connection for asthma, there has been no argument submitted in support of reopening the claim. The Board does note the Veteran’s October 2017 Notice of Disagreement in which he stated that a December 2012 VA examination regarding DMII was inadequate. However, the record shows that the Veteran’s DMII VA examination occurred in March 2011 prior to the August 2011 final decision regarding the Veteran’s DMII claim. Thus, that examination is not for consideration by the Board in deciding the Veteran’s petition to reopen his claim. In the absence of any new and material evidence, reopening the previously denied claims for service connection for asthma and DMII is not warranted. REASONS FOR REMAND Increased ratings for lumbar spine, sciatic nerve, and hemorrhoids The Veteran has stated that his service connected lumbar spine, sciatic nerve, and hemorrhoid disability symptoms have increased in severity since his last VA examinations in September 2016. Therefore, more contemporaneous examinations are warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records for the Veteran’s claimed disabilities. 2. Thereafter, schedule the Veteran for an appropriate examination to assist in determining the severity of his lumbar spine and sciatic nerve disabilities. The claims file, to include a copy of this remand, should be made available to the examiner. The examiner must review the claims file and that review must be noted in the report. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated tests and studies should be performed and all clinical findings reported in detail. As to the Veteran’s lumbar spine, complete range of motion measurements must be provided. The range of motion testing must include in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, indicate whether, and to what extent, the Veteran experiences functional loss due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. As to the Veteran’s sciatic nerve, the examiner should indicate if the Veteran’s sciatic nerve involvement is mild, moderate, moderately severe, or severe. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his hemorrhoids. The claims file, to include a copy of this remand, should be made available to the examiner. The examiner must review the claims file and that review must be noted in the report. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated tests and studies should be performed and all clinical findings reported in detail. The examiner should comment on the current state of the hemorrhoids and indicate the manifestations, including whether the hemorrhoids are large or thrombotic; irreducible, with excessive redundant tissue, evidencing frequent recurrences; and/or whether there is persistent bleeding with secondary anemia or with fissures. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis Parrish, Associate 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.