Citation Nr: 21009887 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-43 367 DATE: February 23, 2021 ORDER New and material evidence not having been received, the application to reopen the claim for service connection for bilateral hearing loss is denied. New and material evidence not having been received, the application to reopen the claim for service connection for tinnitus is denied. New and material evidence not having been received, the application to reopen the claim for service connection for hypertension is denied. Service connection for diabetes mellitus is denied. Service connection for a bilateral eye disorder is denied. Service connection for missing toes of the right foot is denied. Service connection for a quarter of the left leg amputated is denied. FINDINGS OF FACT 1. In a final rating decision issued in December 2006, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss, tinnitus, and hypertension. 2. Evidence added to the record since the final April 2009 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for bilateral hearing loss, tinnitus, and hypertension. 3. Diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of discharge from active duty. 4. A bilateral eye disorder is not caused or aggravated by a service-connected disability. 5. Missing toes of the right foot is not caused or aggravated by a service-connected disability. 6. A quarter of the left leg amputated is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied service connection for bilateral hearing loss, tinnitus, and hypertension is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2008). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been received to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has not been received to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a bilateral eye disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for missing toes of the right foot have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for a quarter of the left leg amputated have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from October 2015 and December 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board remanded the case for additional development and it now returns for further appellate review. In this regard, the January 2020 remand directed that the Veteran be provided an opportunity to submit or identify any outstanding private treatment records relevant to the claims on appeal, to include those from private treatment provides in Oklahoma City, Oklahoma, and, thereafter, all identified records, to include updated VA treatment records dated from July 2016 to the present, be obtained. Thereafter, in a February 2020 letter, the AOJ requested that the Veteran submit or identify and authorize the procurement of relevant private treatment records; however, he did not respond to such letter. Further, the AOJ obtained updated VA treatment records dated through May 2020. Thus, the Board finds that there has been substantial compliance with the January 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension. By way of background, the Veteran’s original claim for service connection for bilateral hearing loss, tinnitus, and hypertension was received in January 2009. In an April 2009 rating decision, the AOJ considered the Veteran’s service treatment records (STRs) and lay statements. As pertinent to his claimed bilateral hearing loss and tinnitus, the AOJ noted the Veteran’s report of in-service noise exposure while working in a warehouse and adjacent to a flight line, but found that, due to the nature of his military occupational specialty as a materials facilities specialist responsible for issuing, requisitioning, receiving, and accounting for equipment and supplies, and the inability to verify his work location, acoustic trauma was not shown. Furthermore, the AOJ found that the Veteran’s STRs were negative for any treatment or diagnosis of bilateral hearing loss or tinnitus, and the evidence failed to show a current diagnosis of either disorder related to his military service. In regard to the Veteran’s claimed hypertension, the AOJ observed that his May 1971 enlistment examination showed a normal blood pressure reading of 128/82. It was also noted that he underwent a 3 day blood pressure check in January 1975, which revealed some borderline elevated readings that were not consistently elevated, with readings of 122/88, 118/90, 120/92, 120/80, 120/90, 118/90, 118/80, 120/90, and 118/90; however no clinical diagnosis was provided. Further, the Veteran’s May 1975 separation examination showed a normal blood pressure reading of 128/88. Ultimately, the AOJ found that the evidence failed to show a current diagnosis of hypertension related to his military service. Later that month, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Also, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the April 2009 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2008). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the April 2009 rating decision, additional evidence consisting of VA treatment records, an October 2015 VA examination, and lay statements from the Veteran, to include his testimony at the May 2019 Board hearing has been received. In this regard, while the Veteran offered testimony regarding his in-service noise exposure, such evidence is duplicative of such that was previously of record at the time of the issuance of the April 2009 rating decision. Furthermore, while VA treatment records and the October 2015 VA examination reflects current diagnoses of bilateral hearing loss as defined by VA regulations, tinnitus, and hypertension, such evidence fails to suggest a relationship between such current disorders and the Veteran’s military service. In this regard, the Veteran’s VA treatment records do not address the etiology of his claimed disorders. Furthermore, the October 2015 VA examiner opined that the Veteran’s hearing loss and tinnitus were less likely than not caused by or a result of an event during active service, to include noise exposure. In this regard, he noted that the Veteran’s STRs reflected hearing sensitivity within normal limits bilaterally at entrance and separation from military service and there was no clinically significant shift in hearing sensitivity at any tested frequency. The examiner further stated that there is no evidence in the record that the Veteran sustained noise injuries based on audiograms, and there is no basis to conclude that any current hearing loss was causally related to military service. He further found that the Veteran’s tinnitus is more likely related to his post-military acquired hearing loss. Moreover, at the May 2019 Board hearing, the Veteran started that he began noticing problems with his hearing and ringing in the ears about 20 years ago when he was about 45 years old, which is well after his separation from service in June 1975. Additionally, he indicated that his treatment providers have not indicated whether his hypertension had its onset in service or is otherwise related to his military service, to include the elevated readings. Furthermore, while the Veteran recently argued that his hypertension is caused or aggravated by his diabetes mellitus, service connection for the latter disorder is denied herein and, thus, such theory of entitlement is not viable. Therefore, as the Veteran’s claims for service connection for bilateral hearing loss, tinnitus, and hypertension were previously denied based on the lack of a current diagnosis of a disorder related to his military service and the newly received evidence likewise fails to address such missing element, the Board finds the evidence added to the record since the final April 2009 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating such claims. Therefore, as new and material evidence has not been received, his applications to reopen such claims must be denied. 4. Entitlement to service connection for diabetes mellitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as diabetes mellitus, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an initial matter, the Board finds that the evidence reflects that the Veteran has a current diagnosis of diabetes mellitus, as demonstrated by his VA treatment records. However, his STRs are negative for any complaints, treatment, or diagnosis referable to such disorder and such disorder was not diagnoses for many years after his separation fro service in June 1975. Furthermore, there is no indication in the record that the Veteran’s diabetes mellitus may be related to his military service. In fact, at his May 2019 Board hearing, he testified that he first discovered his diabetic problems about 25 years ago, when he was about 40 years old, and his physicians have not related such disorder to his military service. The Veteran also stated that he was not sure how his diabetes mellitus is related to his military service. Based on the foregoing, the Board finds that VA’s duty to provide a medical examination and/or opinion regarding such claim is not trigger in the instant case. Specifically, there is no indication that the Veteran’s diabetes mellitus may be related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Board again notes that the Veteran’s STRs are negative for such disorder and he has not described any in-service injury, disease, or event that he believes led to such disorder. Likewise, he has not reported a continuity of relevant symptomatology since service. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. Based on the foregoing, the Board finds that the Veteran’s diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of discharge from active duty. As such, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for diabetes mellitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 5. Entitlement to service connection for a bilateral eye disorder, claimed as secondary to diabetes mellitus. 6. Entitlement to service connection for missing toes of the right foot is denied, claimed as secondary to diabetes mellitus. 7. Entitlement to service connection for a quarter of the left leg amputated, claimed as secondary to diabetes mellitus. In regard to the Veteran’s bilateral eye disorder, missing toes of the right foot, and a quarter of the left leg amputated, he does not allege, and the record does not suggest, that such disorders are related to his military service on a direct or presumptive basis. Specifically, the Veteran’s STRs are negative for any complaints, treatment, or diagnoses referable to such disorders and they had their onset many years after service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, he claims that such disorders are caused or aggravated by diabetes mellitus. In this regard, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). In this regard, VA treatment records reflect diagnoses of diabetic retinopathy, and right toe amputations and left below the knee amputation related to diabetic vasculopathy and gangrene. However, as discussed previously, the Veteran is not entitled to service connection for diabetes mellitus. As such, the Board finds that under the law, he lacks legal grounds to establish entitlement to service connection for the aforementioned claimed disorders. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Insofar as service connection is not in effect for the disability claimed by the veteran to have proximally caused his bilateral eye disorder, right toe amputations, and left leg amputation, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, the claims of entitlement to service connection for such disorders as secondary to diabetes mellitus is without legal merit and must be denied. Id. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.