Citation Nr: 21061546 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-28 599 DATE: October 4, 2021 ORDER Reopening of service connection for left wrist fracture residuals is denied. Service connection for lumbar spine degenerative joint disease (DJD) and degenerative disc disease (DDD) is denied. Service connection for hypertension, to include claimed as due to herbicide exposure, is denied. Service connection for diabetes mellitus, to include claimed as due to herbicide exposure, is denied. Service connection for right upper extremity neuropathy, to include claimed as due to herbicide exposure and/or diabetes mellitus, is denied. Service connection for left upper extremity neuropathy, to include claimed as due to herbicide exposure and/or diabetes mellitus, is denied. Service connection for right lower extremity neuropathy, to include claimed as due to herbicide exposure and/or diabetes mellitus, is denied. Service connection for left lower extremity neuropathy, to include claimed as due to herbicide exposure and/or diabetes mellitus, is denied. FINDINGS OF FACT 1. An unappealed September 1975 rating decision denied service connection for left wrist fracture residuals, finding no current disability and no nexus to service. 2. The evidence received since the September 1975 rating decision does not relate to an unestablished fact of a current left wrist fracture residual disability to help substantiate a claim for service connection. 3. The current diagnoses include DJD and DDD of the back, hypertension, diabetes mellitus type II, and bilateral upper and lower extremity peripheral neuropathy disorders. 4. The Veteran served in Thailand while on active duty and was not exposed to Agent Orange or herbicides. 5. There was no cardiovascular, endocrine, cardiovascular, or upper/lower extremity neurological injury, disease, or event during service. 6. Symptoms of arthritis of the back, hypertension, diabetes, and an upper/lower extremity neurological disorder were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 7. A back disorder, hypertension, diabetes, and an upper/lower extremity neurological disorder did not have their onset during service and are not otherwise related to service. 8. There is no service-connected diabetes mellitus or back disorder on which secondary service connection for an upper/lower extremity neurological disorder may be granted. CONCLUSIONS OF LAW 1. The September 1975 rating decision denying service connection for left wrist fracture residuals became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the September 1975 rating decision is not new and material to reopen service connection for left wrist fracture residuals. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. A back disorder, to include DJD and DDD, was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 4. Hypertension was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 5. Diabetes mellitus was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 6. Right upper extremity peripheral neuropathy was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. 7. Left upper extremity peripheral neuropathy was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. 8. Right lower extremity peripheral neuropathy was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. 9. Left lower extremity peripheral neuropathy was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from January 1969 to August 1975. In July 2019, in pertinent part, the Board remanded the issues on appeal for additional development, including for potential Social Security Administration (SSA) medical records. In November 2019, the SSA National Records Center explained that the requested medical records do not exist; therefore, an additional remand to comply with the July 2019 remand directives is not required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Reopening Service Connection for Left Wrist Fracture Residuals is Denied. 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). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. In a September 1975 rating decision, the VA Regional Office (RO) denied service connection for left wrist fracture residuals, finding no current disability and no nexus to service. The Veteran did not appeal the rating decision, and new and material evidence was not received during the one-year appeal period; thus, the September 1975 rating became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. New evidence received since the September 1975 rating decision includes multiple service treatment records, VA and private treatment records, and statements from the Veteran reflecting left wrist pain. Having reviewed these records, the Board finds this evidence, by itself or when considered with previous evidence of record, does not reflect a current disability of a left wrist fracture residual disorder. No examiner has diagnosed a left wrist fracture residual disorder, and the evidence does not show functional impairment of the left wrist. See also VA and private treatment records; Saunders v. Wilkie, 886 F.3d 1356 (2018). The material question is whether the Veteran has a current left wrist fracture residual disability. There is no new evidence suggesting a diagnoses or current functionally impairing disability. Under these circumstances, the Board finds that new and material evidence to reopen service connection for a left wrist residual fracture disorder has not been received. As such, the RO's September 1975 rating decision remains final, and the appeal to reopen service connection must be denied. 2. Service Connection for a Back Disorder is Denied. 3. Service Connection for Hypertension is Denied. 4. Service Connection for Diabetes Mellitus is Denied. 5. Service Connection for Right Upper Extremity Neuropathy is Denied. 6. Service Connection for Left Upper Extremity Neuropathy is Denied. 7. Service Connection for Right Lower Extremity Neuropathy is Denied. 8. Service Connection for Left Lower Extremity Neuropathy is Denied. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Arthritis, hypertension, diabetes mellitus, and neuropathy (as an organic disease of the nervous system) are considered chronic diseases under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Hypertension is not one of the diseases presumed to be due to herbicide exposure. 38 C.F.R. § 3.309(e). The Department of Defense has confirmed to VA that herbicides were used in Thailand during the Vietnam Era. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era, from February 28, 1961 to May 7, 1975. The Veteran seeks service connection for a back disorder, hypertension, diabetes, and neuropathy disorders. In various statements the Veteran has alleged that hypertension, diabetes, and bilateral upper and lower neuropathy disorders are related to herbicide exposure during service in Thailand. The service personnel records show that the Veteran was stationed in Korat, Thailand, from September 1972 to September 1973. The Veteran's military occupational specialty (MOS) was an aircraft repairman. See DD Form 214. The military personnel records also reflect that, while stationed in Korat, Thailand, the Veteran was responsible for the "removal, replacement, troubleshooting, and rigging of aircraft flight controls, landing gears, drag chutes and associated system." See military personnel records. The military personnel records reflect that while stationed in Korat, Thailand, the Veteran assisted in "crash recovery operations"; however, the evidence in the military personnel records and DD Form 214 does not suggest that the Veteran patrolled around the perimeter of any Air Force Bases or that he was required to maintain the flight lines, and the Veteran has not alleged otherwise. The MOS also does not indicate that the Veteran would have regularly handled or been exposed to herbicide agents. For these reasons, the weight of the evidence is against a finding that the Veteran was exposed to Agent Orange while stationed in Thailand. Next, the Board finds the Veteran is currently diagnosed with arthritis of the back, hypertension, diabetes mellitus (type II), and neuropathy disorders. See VA and private treatment records. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a back, endocrine, cardiovascular, or neurological injury or disease occurred during service, or that chronic symptoms of a back disorder, hypertension, diabetes, or a neurological disorder were manifested during service. The service treatment records, which are complete, show no complaints, findings, diagnoses, or treatment related to hypertension, diabetes mellitus, or an upper/lower extremity neurological disorder. Further, the July 1975 service separation examination report reflects the back, endocrine, cardiovascular, and neurological systems were each clinically evaluated as normal. Because the service treatment records are complete, and the Veteran sought treatment for various other symptoms during service, clinical testing including blood tests, pulse, and blood pressure monitoring were conducted during service, the Board finds that a back disorder, hypertension, diabetes mellitus, and neurological disorders are conditions that would have ordinarily been recorded during service had they been present during service. While service treatment records reflect that the Veteran sought treatment for lower muscular back pain in November 1968, the records also indicate that the back pain experienced at that time subsequently resolved prior to service separation. The July 1975 service separation examination report reflects the back was normal at service separation. In this case, the service treatment records reflect that the Veteran sought treatment for an episode of back pain, pseudofolliculitis, and reported headaches. As the service treatment records are complete and show complaints and treatment for other disorders, the Veteran similarly would have reported or complained of back, endocrine, cardiovascular, neurological disability symptoms, had such occurred during service. Additionally, routine blood tests and blood pressure testing, which includes physical pressing on the pulse, would have noted such irregularities had they been present during service. Further, the May 2013 VA examination report reflects the Veteran denied any in-service back injury or trauma and specifically reported back pain beginning in 1994, approximately 20-years after separation from service. For these reasons, the Board finds that symptoms of a back, endocrine, cardiovascular, or neurological disorder were not chronic, to include an episode of back pain in November 1968 which resolved prior to service separation and no other in-service injury or disease of the back. The lay and medical evidence generated contemporaneous to service, which showed no in-service back, endocrine, or cardiovascular, or neurological injury or disease and no chronic symptoms of arthritis of the back, hypertension, diabetes, and a neurological disorder, is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of back, endocrine, cardiovascular, or neurological disorder symptoms during service. Accordingly, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The Board next finds that the weight of the evidence shows that symptoms of a back disorder, hypertension, diabetes, and a neurological disorder were not continuous since service, including not to a degree of 10 percent within one year of service separation. The numerous VA and private treatment records reflect that a back disorder was not manifested until approximately 2000, over 25 years after service separation. In addition, the VA and private treatment records reflect the Veteran was diagnosed with hypertension and diabetes in approximately 2000, approximately 25 years after separation from service, and diagnosed with a neurological disorder at least 25 years post-service. See VA and private treatment records. Considered together with the absence of an in-service back, endocrine, cardiovascular, or neurological injury or disease or symptoms during service, the 25-year gap between service and the onset and diagnosis of a back disorder, diabetes, hypertension, and a neurological disorder is one factor that tends to weigh against a finding of continuous symptoms service separation. As the weight of the evidence demonstrates no "continuous" back disorder, hypertension, diabetes, or neurological symptoms since service, including to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" symptoms or symptoms manifested to a degree of 10 percent within one year of service separation are not met. 38 C.F.R. §§ 3.307, 3.309. Regarding the theory of direct service connection, the weight of the evidence shows that hypertension, diabetes, and a neurological disorder are not related to service because the weight of the evidence demonstrates no in-service injury or disease or even event to which the disorders could be related. As discussed above, while the Veteran has contended that the claimed disorders were due in-service herbicide exposure during service in Thailand, the Board has found that the Veteran was not exposed to Agent Orange or herbicides during service. Further, service treatment records reflect no injury or disease to the cardiovascular, endocrine, or neurological systems. As to the back disorder, the May 2013 VA examiner opined that a back disorder was not incurred in or caused by service, to include an episode of back pain. In support of the medical opinion, the VA examiner explained that the service treatment records did not reflect chronic treatment for back pain and that the back was clinically envaulted as normal at service separation. The VA examiner also reasoned that the Veteran denied any in-service back injury or trauma and explicitly reported back pain beginning in 1994, approximately 20-years after separation from service. The May 2013 VA examiner has medical expertise, had adequate information on which to base the medical opinions, and provided adequate rationale based on an accurate medical history and known medical principles. For these reasons, the May 2013 VA medical opinion is of significant probative value. While the Veteran is competent to relate symptoms of a back disorder, hypertension, diabetes, and a neurological disorder experienced at any time, he is not competent to opine on whether there is a link between these disorders and active service, including to the alleged exposure to herbicides, because such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the cardiovascular, endocrine, and neurological systems and the development of arthritis, knowledge of the various risk factors and causes of hypertension, diabetes, and neuropathy, specific clinical testing for hypertension and diabetes, and knowledge of the incubation period or ranges of such disorders that the Veteran was not shown to possess, especially in the context of this case where there was no exposure to herbicides during service. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). For these reasons, the Board finds that the preponderance of the lay and medical evidence that is of record weighs against service connection for a back disorder, hypertension, diabetes, and right and left upper and lower neuropathy disorders; consequently; therefore, the claims must be denied. As to secondary service connection for right and left upper and lower neuropathy disorders, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310. In the instant decision, the Board is denying service connection for diabetes and a back disorder. As such, secondary service connection (38 C.F.R. § 3.310) for a right and left upper and lower neuropathy disorders is not warranted as a matter of law, whether or not the disorders were caused by diabetes or a back disorder, because there is no primary service-connected disability upon which secondary service connection may be granted. As diabetes and back disorders that may have caused or aggravated a neuropathy disorder is not a service-connected disability, service connection on a secondary basis must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. PARKER 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.