Citation Nr: 20021705 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-00 506A DATE: March 26, 2020 ORDER New and material evidence sufficient to reopen the claim of service connection for diabetes mellitus, Type II has not been submitted. Entitlement to service connection for left lower extremity neuropathy is denied. Entitlement to service connection for left upper extremity neuropathy is denied. Entitlement to service connection for right lower extremity neuropathy is denied. Entitlement to service connection for right upper extremity neuropathy is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for pressure in eyes is denied. FINDINGS OF FACT 1. In a January 2010 rating decision, the RO disallowed the Veteran’s claim of entitlement to service connection for diabetes mellitus; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. The evidence received since the January 2010 denial is cumulative or redundant of evidence previously of record with respect to the claim of service connection for diabetes mellitus, and does not relate to unestablished facts necessary to substantiate the claim. 3. The Veteran does not have a current diagnosis of left lower extremity neuropathy related to active service, to include as secondary to a service-connected disability. 4. The Veteran does not have a current diagnosis of left upper extremity neuropathy related to active service, to include as secondary to a service-connected disability. 5. The Veteran does not have a current diagnosis of right lower extremity neuropathy related to active service, to include as secondary to a service-connected disability. 6. The Veteran does not have a current diagnosis of right upper extremity neuropathy related to active service, to include as secondary to a service-connected disability. 7. The Veteran’s diagnosed sleep apnea did not have its onset during active service, and it is not otherwise related to active service. 8. The Veteran’s hypertension did not have its onset during active service, and it is not otherwise related to active service. 9. The Veteran’s claimed pressure in his eyes did not have its onset during active service, and it is not otherwise related to active service. CONCLUSIONS OF LAW 1. The January 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the previously denied claim of entitlement to service connection for diabetes mellitus, Type II have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for left lower extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for left upper extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for right lower extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304. 6. The criteria for entitlement to service connection for right upper extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304. 7. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304. 8. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.309. 9. The criteria for entitlement to service connection for pressure in eyes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to May 1967. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision. The Board previously issued a decision on this case on August 27, 2019; however, the decision preceded the Board’s response to an August 22, 2019 motion for an extension of time to submit additional evidence and argument from the Veteran’s attorney. Accordingly, in an October 24, 2019 decision, the Board vacated the August 27, 2019 decision. On December 11, 2019, the Board, finding good cause for a 90-day extension of time, granted the extension request, allowing the Veteran or his attorney to submit additional materials within 90 days of the December 11, 2019 correspondence. As of the date of this decision, new evidence or argument has not been submitted to the record, and the Board will proceed with adjudication. New and Material Request to Reopen Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1100. Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § § 3.103(b)(1), 19.25, 20.1103. An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c). Likewise, if the Veteran does not timely perfect an appeal to the Board following the RO’s issuance of a Statement of the Case (SOC), the rating decision on which the SOC is based becomes final. The exception to this rule of not reviewing the merits of a finally denied claim 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 shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is required to reopen a final claim. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson, 265 F.3d 1366, 1369. 1. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for diabetes mellitus, Type II New and material evidence has not been submitted sufficient to reopen a claim of service connection for diabetes mellitus, Type II. Prior to the filing of the current claim of entitlement to service connection for diabetes mellitus, Type II, the AOJ denied this claim in a January 2010 rating decision. In the January 2010 rating decision, the Veteran was denied service connection for diabetes mellitus on the basis that the evidence failed to show that the Veteran was exposed to herbicide agents during active service. The Veteran received notification of this decision in January 2013. The Veteran did not submit a notice of disagreement (NOD). The Board finds that the Veteran did not timely appeal this decision within a year of notification, and the January 2010 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In the April 2017 rating decision, the RO continued the denial of the Veteran’s claim for service connection for diabetes mellitus because the evidence submitted was not new and material. The Veteran timely appealed the April 2017 decision with a December 2017 NOD. Evidence received since the January 2010 rating decision includes VA treatment records and duplicate copies of service treatment records (STRs). The Board finds that the VA treatment records and STRs are “new” as they had not been previously considered. However, after review, the Board determines that none of it is “material” to an unestablished fact necessary to support the Veteran’s claim. 38 U.S.C. §§ 1110, 1131. That is, the evidence received since the January 2010 determination does not provide competent and probative evidence to support the Veteran’s contention that he has diabetes mellitus related to active service, to include claimed exposure to herbicide agents. The evidence received is redundant and cumulative of evidence of record at the time of the last final denial. Thus, the additional evidence is not new and material as to the claimed diabetes mellitus. The Board concludes, therefore, that new and material evidence to reopen the claim for service connection has not been received. As such, the requirements for reopening the claim are not met. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 2. Entitlement to service connection for left lower extremity neuropathy 3. Entitlement to service connection for left upper extremity neuropathy 4. Entitlement to service connection for right lower extremity neuropathy 5. Entitlement to service connection for right upper extremity neuropathy The Veteran contends that his claimed neuropathy of the left lower extremity, left upper extremity, right lower extremity, and right upper extremity are related to active service. 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. The Board concludes that the Veteran does not have a current diagnosis of neuropathy of the left lower extremity, left upper extremity, right lower extremity, or right upper extremity and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA treatment records indicate that there was no diabetic neuropathy noted on February 11, 2010, and that the Veteran denied neuropathy in a January 8, 2010 record. While the Veteran believes he has a current diagnosis of neuropathy of the bilateral upper and lower extremities, he is not competent to provide a diagnosis in this case. The issue is medically complex, and the Veteran has denied neuropathy symptoms in VA treatment records. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, indicating no evidence of neuropathy. Moreover, even if the Veteran was subsequently diagnosed with diabetic neuropathy, his diabetes is not service-connected, and therefore any secondary complications due to the diabetes are also not service-connected. 6. Entitlement to service connection for sleep apnea The Veteran contends that his claimed sleep apnea is related to service. While VA treatment records indicate that the Veteran has a diagnosis of and post-service treatment for sleep apnea, there is no competent evidence of record linking the Veteran’s claimed condition to service. The evidence does not indicate that the Veteran had sleep apnea or symptoms of sleep apnea during service or shortly after separation from service. STRs indicate no related complaints, treatment, or diagnoses. The Board has considered the Veteran’s contentions but finds the Veteran’s STRs and medical evidence of record to be highly probative. According to this evidence, the Veteran’s sleep apnea did not have its onset during service and is not otherwise related to service. In weighing the evidence of record, the Board finds that the Veteran’s contentions are outweighed by the competent and probative evidence of record. Medical evidence of record is sufficient to decide this claim and it does not indicate a link between the Veteran’s claimed conditions and service. Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for sleep apnea. Hence, the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 7. Entitlement to service connection for hypertension The Veteran contends that his claimed hypertension is related to service. While VA treatment records indicate that the Veteran has a diagnosis of and post-service treatment for hypertension, there is no competent evidence of record linking the Veteran’s claimed condition to service. The evidence does not indicate that the Veteran had high blood pressure or diagnosed hypertension during service or within one year of separation from service. STRs indicate no related complaints, treatment, or diagnoses. As discussed above, the record does not indicate exposure to herbicide agents, including Agent Orange. The Board has considered the Veteran’s contentions but finds the Veteran’s STRs and medical evidence of record to be highly probative. According to this evidence, the Veteran’s hypertension did not have its onset during service and is not otherwise related to service. In weighing the evidence of record, the Board finds that the Veteran’s contentions are outweighed by the competent and probative evidence of record. Medical evidence of record is sufficient to decide this claim and it does not indicate a link between the Veteran’s claimed conditions and service. Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for hypertension. Hence, the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 8. Entitlement to service connection for pressure in eyes The Veteran contends that his claimed pressure in eyes condition is related to service. All veterans are considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at(b) (1). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. Here, as discussed below, the Veteran’s eye trouble was noted upon enlistment examination, and the presumption of soundness does not attach. As such, further discussion of the presumption of soundness is unnecessary and improper. While VA treatment records indicate that the Veteran has post-service treatment for dry eyes, there is no competent evidence of record linking the Veteran’s claimed condition to service. The evidence does not indicate that the Veteran had pressure in his eyes during service. STRs indicate that the Veteran’s enlistment examination indicates eye trouble and that the Veteran “wears corrective glasses.” A February 1966 report of medical examination indicates that “eye trouble refers to corrective lenses worn since childhood, no comp.” STRs indicate that the Veteran reported eye trouble on the February 1967 separation examination, report of medical history, explaining that the “eye trouble refers to the fact that he wears corrective lenses.” The STRs indicate no other related complaints, treatment, or diagnoses related to pressure in his eyes. The Board has considered the Veteran’s contentions but finds the Veteran’s STRs and medical evidence of record to be highly probative. According to this evidence, the Veteran’s claimed pressure in eyes did not have its onset during service and is not otherwise related to service. In weighing the evidence of record, the Board finds that the Veteran’s contentions are outweighed by the competent and probative evidence of record. Medical evidence of record is sufficient to decide this claim and it does not indicate a link between the Veteran’s claimed conditions and service. Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for pressure in eyes. Hence, the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.