Citation Nr: 21000645 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-22 065 DATE: January 5, 2021 ORDER New and material evidence has not been received to reopen the claim of service connection for pulmonary tuberculosis; the appeal is denied. New and material evidence has not been received to reopen the claim of service connection for a back disability; the appeal is denied. New and material evidence has been received to reopen the claim of service connection for kidney cyst; the appeal is granted to this extent only. Entitlement to service connection for peripheral neuropathy is denied. REMANDED Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss is remanded. Entitlement to service connection for left kidney cyst is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the June 2010 Board decision that denied service connection for pulmonary tuberculosis, bilateral hearing loss, a back disability, and kidney cyst; this decision became final. 2. Additional evidence received since the June 2010 Board decision is duplicative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of service connection for pulmonary tuberculosis 3. Additional evidence received since the June 2010 Board decision is duplicative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of service connection for a back disability. 4. Additional evidence received since the June 2010 Board decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for kidney cyst. 5. The Veteran does not have a current diagnosis of peripheral neuropathy of the bilateral upper and/or lower extremities; the evidence weighs against a finding of a current disability at any time relevant to the period under appeal. CONCLUSIONS OF LAW 1. The June 2010 Board decision, which denied service connection for pulmonary tuberculosis, bilateral hearing loss, a back disability, and kidney cyst, is final. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.1100. 2. New and material evidence has not been received to warrant reopening the claim of service connection for pulmonary tuberculosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received to warrant reopening the claim of service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen the claim of service connection for kidney cyst. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1970. These matters come before the Board on appeal from June 2009 and April 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. In a February 2015 decision, the Board reopened the Veteran’s claim of service connection for peripheral neuropathy and remanded the matter for further development. Additionally, the Board remanded the issue to reopen the claims of service connection for pulmonary tuberculosis, bilateral hearing loss, a back disability, and kidney cyst for a statement of the case (SOC), per Manlincon v. West, 12 Vet. App. 239 (1999). In June 2020, the Board remanded the claim of service connection for peripheral neuropathy for further development. In July 2020, the Veteran’s representative withdrew the Veteran’s request for a Board hearing regarding issues not addressed in the November 2014 hearing. New and Material Evidence In general, a RO’s determination that is not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108, 7105. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. The Veteran’s claims of service connection for pulmonary tuberculosis, bilateral hearing loss, a back disability, and kidney cyst were denied in a June 2010 Board decision. Notice of this denial was provided to the Veteran in June 2010. No appeal was taken from the Board decision, and the record does not reflect that the Veteran filed a claim for reconsideration of the June 2010 Board decision. As such, the June 2010 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100. Pulmonary Tuberculosis The Board’s June 2010 decision denied the Veteran’s claim for pulmonary tuberculosis on the basis that there was no history of active tuberculosis. Specifically, the Board indicated that a positive purified protein derivative (PPD) test is not the same thing as medical diagnosis of active tuberculosis nor it is by itself considered a disability that can be service-connected. Unfortunately, evidence added to the record since the June 2010 Board decision is neither new nor material as the submitted evidence still does not tend to show any history of active tuberculosis. Thus, the Board concludes that, even when considering the “low threshold” for determining whether evidence is new and material, the criteria for reopening the claim of service connection for pulmonary tuberculosis have not been met. Back Disability The Board’s June 2010 decision denied the Veteran’s claim of service connection for a back disability on the basis that the Veteran’s back disability was not demonstrated in service and there was no competent medical evidence showing a relationship between his back disability and active service. Rather, the Board noted that the medical evidence related the Veteran’s back disability to a post-service work related injury. The evidence of record at the time of the June 2010 Board decision included the Veteran’s service treatment records (STRs); post-service VA and private treatment records reflecting complaints and treatment for back pain, with several corresponding diagnoses and related X-rays; SSA records relating the Veteran’s back disability to a March 1997 work related incident; and the Veteran’s lay statements asserting that his back condition is related to in-service loading and unloading airplanes and that his condition has continued since service. Since then, VA has received additional VA treatment records, which continue to reflect treatment for back pain, and a November 2014 DRO hearing transcript that reiterates the assertion of the Veteran’s back disability being related to loading and unloading airplanes during service. As stated above, the Board must consider the old and new evidence of record, as a whole, in addressing whether reopening the claim should be allowed; however, while the Board acknowledges that some of the additional evidence of record is new, it is not material, as it does not raise a reasonable possibility of substantiating the claim of service connection for a back disability or cure any prior evidentiary defect. Additionally, the Board notes that the Veteran’s allegations of back pain during and since service are redundant of his previous statements and were considered as part of the prior final denial. Accordingly, the Board finds that the criteria for reopening the claim of service connection for a back disability have not been met. Kidney Cyst The Board’s June 2010 decision denied the Veteran’s claim for kidney cyst on the basis that there was no competent medical evidence that the Veteran’s kidney cyst was related to herbicide exposure. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for kidney cyst. New evidence received since the last final denial in June 2010 includes the Veteran’s testimony detailing his multiple exposures in service to radiation and toxic herbicides while serving aboard the U.S.S. Hickman County. Additionally, the Veteran has submitted numerous articles revealing that the U.S.S. Hickman County was involved in radiation activities. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran’s claim. Accordingly, as new and material evidence has been received, the Board finds that the claim for service connection for kidney cyst is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that exposure to herbicide agents has been conceded. VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e), which include early onset peripheral neuropathy, shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Peripheral Neuropathy After consider all of the evidence of record, to include that set forth below, the Board concludes that the Veteran does not have a current diagnosis of peripheral neuropathy 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). A review of the record illustrates that the Veteran reported experiencing numbness, tinging and coldness; however, there is no diagnosis of upper or lower extremity neuropathy. In addition, there is no record of treatment for peripheral neuropathy during the appellate period. An August 2015 electromyography (EMG) revealed normal results, as there was no definite electrodiagnostic evidence of peripheral neuropathy or lumbosacral radiculopathy. The July 2015 VA examiner noted that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. Additionally, in August 2020, the examiner noted that the Veteran did not have a diagnosis of small fiber neuropathy. The Board finds that the VA examinations are probative as the VA examiner conducted specific neurological testing, to include reflex and sensory examinations. Lastly, the Board notes that there is no indication that the Veteran’s symptoms, to include numbness and tingling, have caused him any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had upper or lower extremity neuropathy or any symptoms in the upper or lower extremities causing functional impairment at any point during the appeal period. Therefore, the Board cannot grant his claim under any theory of entitlement. While the Veteran’s application for service connection for peripheral neuropathy illustrates that the Veteran believes he has a current disability for VA purposes, he is not competent to provide a diagnosis in this case. The issues are medically complex as they require the interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board does not question the Veteran’s sincerity in his belief that service connection is warranted for peripheral neuropathy. However, without evidence of current peripheral neuropathy or symptoms causing functional impairment of earning capacity, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, service connection for peripheral neuropathy is denied. REASONS FOR REMAND New and Material Evidence for Bilateral Hearing Loss The Board notes that additional pertinent VA treatment records were added to the claims file after the last RO adjudication of this claim in a March 2017 SOC. Here, the Veteran underwent a VA audiology consult in November 2019, in which he reported a decline in hearing abilities. Upon examination, the audiologist indicated that pure tone testing revealed right ear mild, rising to normal, sloping to moderately-severe sensorineural hearing loss and left ear moderate, rising to normal, sloping to severe sensorineural hearing loss. The audiologist noted that he has a speech recognition score of 96 percent in the right ear and 88 percent in the left ear using the Maryland CNC test. The Board notes that the record indicates that an audiogram was completed, but that it has not been associated with the VA medical records. On remand, the RO will have an opportunity to properly adjudicate this claim, and efforts should be made to obtain and associate with the claims file the missing audiogram. 38 U.S.C. § 5103A. In this regard, the Board notes that the Veteran’s claim to reopen may depend on such audiometric results. Service Connection for Kidney Cyst The Veteran contends that his kidney cyst is due to in-service exposure to harmful radiation on more than one occasion, to include as a result of service aboard the U.S.S. Hickman County which had previously been involved in radiation activity. This contention has not been developed or considered by the RO. Accordingly, on remand, the RO should adequately develop the Veteran’s claim. The matters are REMANDED for the following action: 1. Obtain the VA audiological evaluation results conducted on November 15, 2019. The complete audiogram should be uploaded to the Veteran’s claims file. Then, after conducting any development deemed necessary, readjudicate the application to reopen the claim of service connection for bilateral hearing loss. (Continued on the next page)   2. Develop the Veteran’s assertion that he was exposed to radiation on the U.S.S. Hickman County. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion. If more details are needed, contact the Veteran to request the information. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.