Citation Nr: 21073050 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-42 851 DATE: December 7, 2021 ORDER 1. The petition to reopen the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. 2. Entitlement to service connection for hypertension is denied. 3. Entitlement to service connection for a lumbar spine disability is denied. 4. Entitlement to service connection for a gastric ulcer is denied. FINDINGS OF FACT 1. In the November 2012 rating decision, the claim for service connection for PTSD was denied as the Veteran did not have a current disability, nor had he provided a valid stressor. 2. Evidence submitted since the November 2012 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for PTSD. 3. The preponderance of the evidence is against finding that hypertension had an onset in service, manifested to a compensable degree within one year of service discharge, or is otherwise related to service. 4. The preponderance of the evidence is against finding that a lumbar spine disability began during active service or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that a gastric ulcer, diagnosed as GERD is related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The November 2012 rating decision denying service connection for PTSD is final. New and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a gastric ulcer, diagnosed as GERD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1970 to April 1973 with an honorable discharge for this time period. The Veteran also served from April 1973 to October 1978. However, this period of service has been considered dishonorable for VA purposes, due to a discharge under conditions other than honorable. See Nov. 2014 Form DD 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A videoconference hearing was scheduled in August 2020. The Veteran did not appear at the hearing. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). New and Material Evidence 1. The petition to reopen the claim for entitlement to service connection PTSD Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). 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 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 prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 11720 (2010). The claim for service connection for PTSD was previously considered and denied by the RO in August 2004, July 2006, and November 2012 rating decisions as there was no diagnosed PTSD or a valid stressor. At the time of the November 2012 rating decision, the relevant evidence consisted of service treatment records (STRs), VA treatment records, statements of the Veteran related to his reported stressors, and the Veteran's application for benefits. The Veteran was notified of these decisions and of his appellate rights. The Veteran did not appeal any of these previous decisions and did not submit new and material evidence within one year of the November 2012 rating decision, and the November 2012 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Relevant evidence added to the file since the November 2012 rating decision consists of the Veteran's statements, VA treatment records, and a July 2017 VA psychiatric examination. Since the November 2012 rating decision, VA treatment records do not document that the Veteran has continuously reported symptoms that could reasonably be construed as symptoms of PTSD or any other psychiatric disability. The Board acknowledges that the Veteran was provided a VA examination to assess the nature of the Veteran's psychiatric disorder following the November 2012 rating decision. However, this examination did not include new and material evidence as the Veteran reiterated his previously reported stressors, and the examiner documented that the Veteran did not have a diagnosis of PTSD or any other mental health disorder. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for PTSD. Therefore, the application to reopen the previously-denied claim for service connection for PTSD is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 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, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Initially, the Board notes that the Veteran has asserted that all of his claims for entitlement to service connection are based, at least in part, as due to his exposure to Agent Orange (AO)/herbicides during his service in Vietnam. If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service connected even if there is no in-service record of the disease in service. 38 C.F.R. § 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a Veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). The Board acknowledges that the Veteran served in Vietnam during his period of honorable service. However, the Veteran's claims are not disabilities for which service connection is presumed based exposure to AO/herbicides under 38 C.F.R. § 3.309(e). Furthermore, the Veteran, despite providing a vague assertion that his disabilities are caused by exposure to AO/herbicides in service, has not provided any specific argument or evidence as to why he believes any specific disability is at least as likely as not directly related to AO/herbicide exposure in service. Thus, to the extent the Veteran asserts service connection is warranted based on exposure to AO/herbicides, the claims are denied. 2. Entitlement to service connection for hypertension The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for hypertension. The reasons follow. First, the claims file reflects multiple instances in which medical providers have noted hypertension for the Veteran. In a February 2006 VA general medical examination, the examiner noted an impression of hypertension Further, in a December 2011 VA emergency department treatment note, the provider noted that the Veteran's hypertension was stable. Therefore, the Board finds that it is at least likely as not that the Veteran has a current diagnosis of hypertension and the first element of service connection is met. However, regarding the presence of an in-service event, injury, or illness, the Board finds that the preponderance of the evidence is against the claim. STRs from the first period of service do not reflect any abnormal blood pressure readings. Further, in the September 1978 separation examination, a clinical examination of the heart was normal and the blood pressure reading was 120/70. On his September 1978 Report of Medical History, the Veteran reported that his health was "excellent" and specifically denied having or having had high or low blood pressure, shortness of breath, pain or pressure in the chest, palpation or pounding heart, or heart trouble. Absent an onset of hypertension in service or symptoms suggestive of an onset of hypertension in service, the second element of service connection requiring an in-service event, injury, or illness has not been met, and service connection on a direct basis is denied. Despite not meeting the requirements for service connection on a direct basis, the Board notes that hypertension is a chronic disease under 38 C.F.R. § 3.309, which allows for service connection on a presumptive basis if the chronic disease is manifested to a compensable degree within one year of discharge from service. However, in this case the preponderance of the evidence is against finding that the hypertension had an onset within one year of discharge from service. Rather, the February 2006 VA general medical examination documented that the Veteran was diagnosed with hypertension in 1996, over twenty years after the Veteran was discharged from his period of honorable service. Thus, service connection on a chronic presumptive basis is also denied. VA did not provide the Veteran with an examination or medical opinion in connection with the claim for service connection for hypertension. The Board finds that entitlement to a VA examination or medical opinion is not warranted. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of evidence is against evidence establishing that an event, injury, or disease occurred in service or manifested during an applicable presumptive period, nor was there an indication that the disability may be associated with the Veteran's service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this claim. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for hypertension is denied. 3. Entitlement to service connection for a lumbar spine disability The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability. The reasons follow. First, in the February 2006 VA general medical evaluation, the examiner noted an impression of lumbar disc disease. A February 2006 x-ray of the lumbar spine revealed degenerative disc disease. Accordingly, the Board finds that the first element of service connection is met. However, the Board finds the preponderance of the evidence is against an onset during the honorable period of active service. STRs during his first period of service do not reflect any injuries or complaints relating to his lumbar spine. Additionally, the September 1978 separation examination documented that a clinical examination of the spine was normal. On his September 1978 Report of Medical History, the Veteran reported that his health was "excellent" and he specifically denied having or having had recurrent back pain. The Board acknowledges that the STRs do contain documentation of treatment for a low back sprain in October 1973. However, as this was during the second period of service, the period for which the Veteran was discharged under other than honorable conditions, this incident in service is not relevant for VA compensation purposes. Absent an onset of a lumbar spine disability in service or symptoms suggestive of an onset of a lumbar spine disability in service, the second element of service connection requiring an in-service event, injury, or illness has not been met, and service connection on a direct basis is denied. VA did not provide the Veteran with an examination or medical opinion in connection with the claim for service connection for a lumbar spine disability. The Board finds that entitlement to a VA examination or medical opinion is not warranted. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of evidence is against establishing that an event, injury, or disease occurred in service nor was there an indication that the disability may be associated with the Veteran's service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this claim. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for a lumbar spine disability is denied. 4. Entitlement to service connection for a gastric ulcer, diagnosed as GERD The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a gastric ulcer. The reasons follow. First, in an October 2012 VA examination, the Veteran was diagnosed with duodenitis and gastroesophageal reflux disease (GERD). Accordingly, the Board finds that the first element of service connection is met. Second, the Board notes that the Veteran experienced epigastric pain in February 1971 while on duty during his period of honorable service. The Board finds this evidence reflects that it is at least in equipoise as to whether the Veteran experienced an in-service event regarding his claimed gastric ulcer. Accordingly, the second element of service connection is met. Regarding the third element of service connection, nexus, the Board finds that the preponderance of the evidence is against the claim. In the October 2012 VA examination, the examiner opined that it was less likely than not that the currently diagnosed GERD or duodenitis was related to the in-service epigastric pain. The examiner explained that the Veteran's symptoms resolved with maalox and donnatal and that, according to the Veteran, he returned to full duty five days later. The examiner found that the in-service event was consistent with a viral syndrome, not a gastric ulcer. The examiner further noted the Veteran's discharge examination did not document ongoing stomach problems or symptoms that could be related to stomach problems. The Board finds that the October 2012 VA medical opinion is highly probative, as the examiner reviewed the file, listened to the Veteran's report of history, physically examined the Veteran, and provided a rationale for the opinion that relied on the specific facts of the case, which facts are accurate. This is evidence against a nexus between the current disability and service. There is no competent evidence to weigh against this medical opinion. Thus, the Board finds that the preponderance of the evidence is against finding a nexus between the Veteran's currently diagnosed GERD and treatment for epigastric pain in service. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for a gastric ulcer, diagnosed as GERD, is denied. A. KENINGER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.