Citation Nr: 20036731 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 20-11 885 DATE: May 28, 2020 ORDER New and material evidence having not been submitted, service connection for nasal deviation is denied. New and material evidence having not been submitted, service connection for a right great toe disorder is denied. Service connection for a heart disorder is denied. Service connection for gastritis is denied. Service connection for sinusitis is denied. Service connection for right upper extremity (RUE) radiculopathy is denied. Service connection for left upper extremity (LUE) radiculopathy is denied. Service connection for right lower extremity (RLE) radiculopathy is denied. Service connection for left lower extremity (LLE) radiculopathy is denied. FINDINGS OF FACT 1. The Veteran had active service from October 1979 to May 1995. 2. An unappealed July 1995 rating decision denied service connection for nasal deviation and a right great toe disorder, finding no current disability. 3. The evidence received since the July 1995 rating decision does not relate to an unestablished fact of a current nasal deviation or right great toe disability to substantiate a claim for service connection. 4. Current diagnoses of a heart disorder, gastritis, sinusitis, or radiculopathy have not been shown. CONCLUSIONS OF LAW 1. The July 1995 rating decision denying service connection for nasal deviation and a right great toe disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the July 1995 rating decision is not new and material to reopen service connection for nasal deviation. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Evidence received since the July 1995 rating decision is not new and material to reopen service connection for a right great toe disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 5. The criteria for service connection for gastritis have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 6. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 7. The criteria for service connection for RUE radiculopathy have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. 8. The criteria for service connection for LUE radiculopathy have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. 9. The criteria for service connection for RLE radiculopathy have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 10. The criteria for service connection for LLE radiculopathy have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material to Reopen Claims for Nasal Deviation and Right Great Toe Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, the Regional Office (RO) denied service connection for nasal deviation and right great toe in July 1995, finding no diagnosed nose and right great toe disorders. The Veteran did not appeal and new and material evidence was not received during the one-year appeal period; thus, the July 1995 rating decision became final, and is not subject to revision on the same factual basis. Since the July 1995 rating decision, additional evidence has been received in the form of VA and private treatment records, lay statements submitted by the Veteran, and service treatment records (STRs). After review, new and material evidence has not been submitted. Specifically, the evidence, to include the VA and private treatment records, does not reflect a current nasal deviation and/or a right great toe disorder, to include functional impairment of the septum or right great toe. No examiner has assessed residuals of a nasal deviation and/or a right great toe disability. Further, while the Veteran has submitted STRs reflecting a December 1980 nasal deviation and June 1984 right big toe pain, having reviewed these records, the STRs are cumulative and redundant of evidence previously of record. The STRs were previously considered in the July 1995 rating decision. Further, and as discussed above, the VA and private treatment records provide no competent medical evidence of a current nasal deviation and/or right big toe disability. Thus, the evidence received since the July 1995 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to the previously unestablished fact of a current nasal deviation and/or right great toe disability. Under these circumstances, new and material evidence has not been submitted to reopen the claims for service connection. As such, the RO’s July 1995 rating decision remains final, and the appeal to reopen must be denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007). Heart Disorder, Gastritis, Sinusitis The Veteran contends generally that a heart disorder, gastritis, and sinusitis began during service. In the January 2018 notice of disagreement (NOD), he maintained that the STRs reflected treatment for symptoms those disorders. After a review of the evidence, the weight of the evidence demonstrates that the Veteran does not have current diagnoses of gastritis, sinusitis, and/or a current heart disorder. Specifically, as to a heart disorder, an August 2017 VA examination report reflected no heart disorder. The August 2017 VA examination report also reflects the Veteran’s heart was clinically normal through chest x-rays. Further, while the August 2017 examiner assessed sinus rhythm and mildly thickened walls of the left ventricle, the examiner did not diagnosis any heart disorder. The VA and private treatment records also do not reflect any diagnosis pertaining to a heart disorder. As to gastritis, the August 2017 VA gastroenterologist opined that there was no current gastritis; rather the assessment was “epigastric” and gastroesophageal reflux disease with self-reported symptoms beginning in 2011. The VA and private treatment records do not reflect any diagnosis pertaining to gastritis. As to sinusitis, an August 2017 VA examiner specifically opined there was no current sinusitis; rather, the evidence shows that sinus symptoms experienced by the Veteran were symptoms of the already service-connected rhinitis. The regulations prohibit rating the same disability under different diagnoses. VA and private treatment records do not reflect a diagnosis of sinusitis immediately prior to or during this claim. The August 2017 VA examination reports are highly probative and are adequately based on objective findings as shown by the record. The VA examiners considered a complete and accurate history of the claimed disabilities as provided through review of the record, which included interview of the Veteran and the Veteran’s subjective complaints as it related to the current symptomatology. The August 2017 VA examiners had adequate facts and data regarding the history and condition of the claimed heart, gastritis, and sinusitis disorders when rendering the medical opinions. For these reasons, the August 2017 VA examination reports provide competent, credible, and probative evidence that shows that the Veteran does not have a current diagnosis of a heart disorder, gastritis, or sinusitis. While, as a lay person, the Veteran is competent to relate injury, treatment, and some symptoms that may be associated with the heart, stomach, and sinuses, under the facts of this case that include VA medical opinions, he does not have the requisite medical knowledge, training, or experience to be able to diagnose medically complex heart, stomach, and/or sinus disorders. Heart, stomach, and sinus disorders are medically complex because of the multiple potential etiologies, can require specialized testing to diagnose, and observable symptomatology can overlap with other disorders. Diagnosing a heart, stomach, and/or sinus disorder also involves internal and unseen system processes unobservable by the Veteran, and he has not been shown to have such knowledge, training, or experience. In sum, the evidence shows that the Veteran does not have a current heart disorder and/or a diagnosis of gastritis or sinusitis; therefore, the appeals are denied.   Bilateral Upper and Lower Radiculopathy The Veteran specifically contends that bilateral upper and lower extremity radiculopathy disorders are related to a service-connected cervical spine residuals and back disability, respectively. As radiculopathy was not shown in service or for many years thereafter and the medical evidence does not reflect a nexus between radiculopathy and service, the analysis will focus on secondary service connection. Nonetheless, the evidence does not reflect that the Veteran has current diagnoses of bilateral upper and lower radiculopathy. VA treatment records and VA examination reports from August 2017 and October 2017 reflect negative findings for right upper, left upper, right lower, and left lower radiculopathy upon examination and clinical testing. Specifically, the August 2017 VA cervical spine exanimation report reflected negative findings for radicular pain and/or other signs or symptoms due to radiculopathy. Similarly, the October 2017 VA back examination report reflected negative findings for radicular pain and/or other signs or symptoms due to radiculopathy. Therefore, the August 2017 and October 2017 VA examination reports are highly probative and are adequately based on objective findings as shown by the record. The examiners considered a complete and accurate history of the claimed disability as provided through review of the record, which included interview of the Veteran and his subjective complaints as it related to the current symptomatology. The August 2017 and October 2017 VA examiners had adequate facts and data regarding the history and condition of the claimed bilateral upper and lower radiculopathy. For these reasons, the August 2017 and October 2017 VA examination reports provide competent, credible, and probative evidence that shows that the Veteran does not have current diagnoses of a radiculopathy disorder. Because the weight of the evidence demonstrates no current diagnosis for right upper, left upper, right lower, or left lower extremity radiculopathy, the claims for service connection, to include secondary service connection, is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Tenney, 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.