Citation Nr: 21011674 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-39 307 DATE: March 2, 2021 ORDER New and material evidence not having been received, the application to reopen a claim of service connection for diabetes mellitus (DM) is denied. New and material evidence not having been received, the application to reopen a claim of service connection for hemorrhoids is denied. Service connection for bilateral inguinal hernias is denied. FINDINGS OF FACT 1. The Veteran had active duty from December 1970 to October 1981. 2. In an unappealed January 2013 rating decision, the Regional Office (RO) denied service connection for DM and hemorrhoids on the basis of no nexus to service. The evidence submitted since the January 2013 decision, to the extent that it is new, is not material with regard to the application to reopen the claims. 3. Bilateral inguinal hernias were not shown in service and are not etiologically related to service. CONCLUSIONS OF LAW 1. The January 2013 RO rating decision, which denied service connection for DM and hemorrhoids, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 2. The evidence received since the January 2013 rating decision is not new and material; the claim for DM is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. The evidence received since the January 2013 rating decision is not new and material; the claim for hemorrhoids is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 4. Bilateral inguinal hernias were not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In connection with this appeal, the Veteran testified at a January 2021 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. New and Material Evidence to Reopen Claims 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). The Veteran is currently seeking to reopen his claims for service connection for DM and hemorrhoids. Historically, the claims were denied in a January 2013 rating decision on the basis of no nexus shown to service. The Veteran did not appeal and no documentation constituting new and material evidence was submitted within the one-year appeal period. Accordingly, the January 2013 rating decision became final. The evidence of record at the time of the January 2013 rating decision consisted of service treatment records (STRs) and post-service VA and private medical treatment records. The evidence received since the January 2013 rating decision includes additional STRs, VA medical records, VA examination reports, military personnel records, and lay testimony and statements. This evidence is new as it was not of record at the time of the final decisions; however, the evidence is not material as it does not raise a reasonable possibility of substantiating the claims. As noted, the claims were denied due to the lack of a medical nexus. None of the evidence submitted since the prior final denial, including updated VA clinical records and VA examinations, pertained to DM or hemorrhoids. Further, the VA treatment records do not contain any medical opinions detailing an etiological relationship between DM or hemorrhoids and service. As the current diagnoses were already substantiated, the ongoing treatment records alone, without an etiological opinion, do not substantiate the medical nexus element of these claims, and the claims to reopen are denied. In sum, the evidence, while new, fails to raise a reasonable possibility of substantiating the claims. Based on the above, the medical and lay evidence do not support the Veteran’s request to reopen his claims of service connection for DM and hemorrhoids and there is no doubt to be otherwise resolved. Service Connection for Bilateral Inguinal Hernias Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran alleges that he was misdiagnosed with epididymitis in-service rather than bilateral inguinal hernia. He has not claimed nor does evidence show that it is related to service-connected disability, and bilateral inguinal hernia is not a chronic disease as defined in 38 C.F.R. § 3.309. As such, only direct service connection will be discussed. Turning to the evidence, the first element of service connection, a current disability is met. Specifically, a March 2015 VA hernias examination report and multiple medical treatment notes reflected a diagnosis of bilateral inguinal hernia with bilateral herniorrhaphy with scar. As such, the first element is shown by the medical evidence. As to an in-service incurrence, a review of the service treatment records (STRs) does not reflect complaints, findings, or diagnoses of bilateral inguinal hernia. The Veteran asserts that he was misdiagnosed in service. A review shows that he first sought treatment at the Outpatient Clinic in March 1979 for sudden pain in his right testicle. He was referred to the Surgical Clinic for rule/out epididymitis. The Surgical Clinic consultation reflected a diagnosis of epididymitis. As such, the Veteran was assessed by two different clinician with the first noting a diagnosis of rule/out epididymitis and the second, presumably a more specialized clinician, confirming a diagnosis of epididymitis. In addition, the May 1981 separation examination did not reveal complaints, treatment for, or a diagnosis of bilateral inguinal hernia and the clinical assessment was normal. Therefore, despite the Veteran’s contentions that he was misdiagnosed in service with epididymitis and should have been diagnosed with an inguinal hernia, the evidence reflects a diagnosis of epididymitis by two different clinicians but no evidence of a bilateral inguinal hernia and the second element of direct service connection – an in-service incurrence – has not been met. To the extent that the Veteran asserts a direct nexus to service, the medical evidence does not support the claim. A March 2015 VA examiner opined that the Veteran’s bilateral inguinal hernia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, to include epididymitis, that occurred during service. The examiner noted that there was no medical literature connecting the Veteran’s double inguinal hernia to epididymitis. The examiner considered the Veteran’s statements that he was misdiagnosed with epididymitis; however, the examiner accepted the in-service diagnosis of epididymitis despite the Veteran’s contentions that he was misdiagnosed. Further, a review of the medical records fails to show any competent medical professional opining that there is an etiological connection between his current disability and any event, to include epididymitis, that occurred during active duty or in support of the Veteran’s contention that he was misdiagnosed. With regard to the above service connection claim, the Board has considered the Veteran’s lay statements and testimony that his claimed disorder is related to service, including his statements that he was misdiagnosed. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical evidence, and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.