Citation Nr: 21063732 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-52 747 DATE: October 15, 2021 ORDER New and material evidence has not been received to reopen a previously denied claim for service connection for hypertension; thus, this petition is denied. Entitlement to service connection allergic rhinitis is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a sleep disorder, including insomnia, is denied. FINDINGS OF FACT 1. The evidence submitted or otherwise obtained since a prior, final and binding, May 2008 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension. 2. The most probative (competent and credible) evidence is against finding that the Veteran's allergic rhinitis initially onset during her service or is otherwise related or attributable to her service. 3. The most probative evidence is against finding that she has a current right foot disability or that her reported pain in this foot causes functional impairment of her earning capacity to warrant considering it a de facto ratable disability. 4. The most probative evidence is against finding that she has a current sleep disorder. CONCLUSIONS OF LAW 1. Since there is not new and material evidence, the criteria are not met to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria are not met for entitlement to service connection allergic rhinitis. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria are not met for entitlement to service connection for a right foot disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 4. The criteria are not met for entitlement to service connection for a sleep disorder, including insomnia. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U. S. Army from January 1974 to September 1976. This appeal to the Board of Veterans' Appeals (Board) is from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board remanded these and other claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including to obtain all outstanding medical treatment records relevant to these claims, whether from VA or private providers, as well as any other pertinent documents. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 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 relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain diseases like hypertension and arthritis are considered "chronic", per se, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Whether there is new and material evidence to reopen the claim for service connection for hypertension A previously denied, unappealed claim of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 prior 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed, unless it is inherently incredible or beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). This claim of entitlement to service connection for hypertension was originally considered and denied in a May 2008 rating decision based on an ultimate finding that this disease was neither incurred in nor caused by the Veteran's service and did not initially manifest to a compensable degree within a year of her separation from service to, in turn, warrant presuming it was incurred during her service. The evidence considered in making that determination included her service treatment records (STRs), VA treatment records, private treatment records, and personal correspondence. The Veteran did not appeal that May 2008 decision earlier considering and denying this claim, nor did VA actually or constructively receive any new and material evidence within a year following notification of it; therefore, that decision became final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). As that May 2008 rating decision is the last final and binding denial of this claim, it marks the "starting point" for determining whether new and material evidence since has been submitted or otherwise obtained to warrant reopening this claim. See Evans v. Brown, 9 Vet. App. 273 (1996). The additional evidence received since the May 2008 rating decision includes more recent medical records showing a diagnosis of hypertension. This evidence is new in the sense that it was not of record at the time of the prior May 2008 rating decision, but it is cumulative or redundant of the evidence that was and not material because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. This evidence only further establishes that the Veteran has hypertension, but this already was known and conceded, even when the RO previously adjudicated this claim in May 2008. In short, this additional evidence does not tend to establish that her hypertension is etiologically related to her military service either by showing that it initially manifested during or within a year of her service or that it is otherwise related or attributable to her service. Consequently, the Board concludes that the evidence submitted since the May 2008 rating decision is not new and material and does not serve as grounds for reopening this claim for service connection for hypertension. And inasmuch as the Veteran has not fulfilled this threshold burden of submitting new and material evidence to reopen the finally-disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Entitlement to service connection allergic rhinitis The Veteran contends that she has allergic rhinitis (seasonal allergies) because of sinus congestion she experienced during her service. The Veteran had a VA examination for her allergic rhinitis in December 2020. The examiner found greater than 50% obstruction of the nasal passage on both sides with complete obstruction of the left side, although there was no permeant hypertrophy of the nasal turbinates or nasal polyps. The examiner diagnosed allergic rhinitis but indicated it did not have any impact on the Veteran's ability to work and was not incurred in or caused by her military service. The examiner explained this conclusion was because there was no reported history of the Veteran having allergic rhinitis during her service. There is no equally or certainly no more probative (competent and credible) medical nexus opinion refuting that VA examiner's unfavorable conclusion of no correlation between the Veteran's service and her later diagnosed allergic rhinitis. The Board has considered her lay statements and pleadings regarding the origin or cause of her allergic rhinitis. But, while she is certainly competent to report on her symptoms, she does not have the competence to ascribe her symptoms to a particular diagnosis and provide a probative opinion regarding their etiology, especially in terms of whether related or attributable to her service or her service-connected disabilities. This determination is outside the realm of her lay competence since this condition at issue is medically complex, not instead merely simple. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); 38 C.F.R. § 3.159(a)(1) and (a)(2). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). 3. Entitlement to service connection for a right foot disability 4. Entitlement to service connection for a sleep disorder, including insomnia The Veteran additionally contends that she has a right foot disability and sleep disorder due to her service. However, the Board finds that there is no current diagnosis of a right foot disability or sleep disorder upon which to predicate a claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there necessarily can be no valid claim because, for all intents and purposes, there is no current disability to in turn relate or attribute to the Veteran's military service). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has had the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability has resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Here, the post-service treatment records show no probative indication of a right foot disability or sleep disorder. To the contrary, a December 2020 VA examination revealed no then present diagnosis of a right foot disability or even subjective reports of pain. Similarly, the Veteran's VA medical records are grossly unremarkable for a diagnosis of any sleep disorder, including insomnia. To qualify for entitlement to compensation, a Veteran must prove the existence of a disability and one that has resulted from a disease or an injury that occurred during active military service in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Symptoms, alone, generally are not a disability for which service connection may be granted. See id. A more recent Federal Circuit Court case, however, held that a diagnosis is not always required to meet the current disability requirement and that pain, alone, can in certain instances constitute a ratable disability if it causes functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). This holding does away with the notion, including cited in Sanchez-Benitez, that "pain alone is not disability" in all circumstances, but this concept is still valid in that a Veteran still needs to show disability due to disease or injury in service to get service connection. Here, despite her assertions that she presently has a right foot disability and a sleep disorder, the Veteran has not offered any competent and credible medical evidence supporting her assertions nor has she demonstrated that she has the knowledge, training, or education required to diagnose these medical disabilities, herself. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there necessarily can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board therefore finds that service connection for a right foot disability and sleep disorder is not warranted as there are no current diagnoses of these claimed disabilities or required showing of functional impairment of her earning capacity, so de facto ratable disabilities, if considering the "pain" scenario discussed in Saunders. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.