Citation Nr: 21013833 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-08 941 DATE: March 10, 2021 ORDER Service connection for ischemic heart disease (IHD) is denied. Service connection for peripheral neuropathy of the bilateral legs and feet is denied. Service connection for peripheral neuropathy of the bilateral hands and arms is denied. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for epididymitis; as such, the appeal is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against finding that the Veteran has had IHD at any time during or approximate to the pendency of the claim. 2. The preponderance of the competent evidence of record is against finding that the Veteran has had peripheral neuropathy of the bilateral legs and feet at any time during or approximate to the pendency of the claim. 3. The preponderance of the competent evidence of record is against finding that the Veteran has had peripheral neuropathy of the bilateral hands and arms at any time during or approximate to the pendency of the claim. 4. An unappealed November 2006 rating decision, in pertinent part, denied service connection for epididymitis on the basis that that the Veteran did not have a current diagnosis. 5. New evidence has been received since the final November 2006 rating decision, but it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for epididymitis and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for IHD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral neuropathy of the bilateral legs and feet have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for Entitlement to service connection for peripheral neuropathy of the bilateral hands and arms have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The November 2006 rating decision that, in pertinent part, denied the claim of entitlement to service connection for epididymitis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. New and material evidence pertaining to epididymitis has not been received since the final November 2006 rating decision; accordingly, the claim for service connection for epididymitis is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from August 1973 to July 1978. He testified at a Travel Board hearing before the undersigned in August 2019. These issues were before the Board in January 2020 when they were remanded for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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). Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IHD, Peripheral Neuropathy of Lower Extremities and Upper Extremities The Veteran has generally asserted that he has IHD secondary to in-service exposure to herbicide agents and peripheral neuropathy of the legs, feet, arms and hands related to service-connected diabetes mellitus. See August 2019 hearing transcript. The Veteran’s service treatment records are silent for any complaints or findings related to heart disease or peripheral neuropathy. Likewise, his post-service treatment records are also silent for any findings of heart disease or peripheral neuropathy. Notably, outpatient treatment records show that myocardial perfusion imaging and a stress test were normal in 2011. Outpatient treatment records, including in November 2013, April 6, 2015, and July 2020, also show that the Veteran denied numbness and neurological examination was normal. Finally, when asked at the August 2019 Board hearing as to whether he had been given a formal diagnosis of peripheral neuropathy, the Veteran testified that he had only mentioned having symptoms of such to his treatment providers. However, as noted above, there is no indication in the Veteran’s post-service treatment records that he has sought treatment for such. Thus, the Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have IHD, peripheral neuropathy of the bilateral legs and feet, or peripheral neuropathy of the bilateral hands and arms at any time during the pendency of the claim or recent to the filing of the December 2013 claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, with regard to obtaining VA examinations, there is no indication in the record, to include no competent evidence of record (other than the Veteran’s lay assertions, which have been non-specific in this regard) showing that he been diagnosed with IHD, peripheral neuropathy of the bilateral legs and feet, or peripheral neuropathy of the bilateral hands and arms. The Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In this case, VA’s duty to provide examinations is not triggered, and VA examinations regarding the Veteran’s claims is neither necessary nor warranted. Id. As the Veteran does not have diagnoses of IHD, peripheral neuropathy of the bilateral legs and feet, or peripheral neuropathy of the bilateral hands and arms, there is no current disability and the first element of service connection has not been met for any of these issues. See Brammer v. Derwinski, supra. Therefore, service connection must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claims, the doctrine is not for application. Gilbert v. Derwinski, supra. Claim to Reopen In general, decisions of the Regional Office (RO) and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. In a November 2006 rating decision, the RO, in pertinent part, denied service connection for epididymitis, finding that although service treatment records noted treatment for swelling and tenderness in the right scrotum, right testicle and inguinal area in January 1976, complaints or findings related to epididymitis were not shown on subsequent service treatment records or currently. The Veteran did not appeal the November 2006 rating decision or submit new and material evidence within one year of this decision. Therefore, the November 2006 rating decision is final based on the evidence then of record. 38 U.S.C. § 7105. (Continued on the next page)   Evidence submitted since the November 2006 rating decision includes VA treatment records and examination reports which are new, but do not provide competent evidence as to whether the Veteran currently has epididymitis that may be related to service. Therefore, this evidence would not reasonably substantiate the claim, were the claim be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, supra. New and material evidence to reopen the claim for service connection for epididymitis has not been received, and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fletcher, Kathleen 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.