Citation Nr: 21025126 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 20-27 854 DATE: April 27, 2021 ORDER The application to reopen a claim for service connection for peripheral neuropathy of the bilateral lower extremities for substitution purposes is denied. The application to reopen a claim for service connection for hypertension for substitution purposes is denied. The application to reopen a claim for service connection for a kidney disability for substitution purposes is denied. The application to reopen a claim for service connection for a vision disability for substitution purposes is denied. The application to reopen a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) for substitution purposes is denied. FINDINGS OF FACT 1. A September 2012 decision by the Board of Veterans Appeals (Board) denied entitlement for service connection for peripheral neuropathy of bilateral lower extremities, to include as due to herbicide exposure. It was held that no competent evidence established a current diagnosis of peripheral neuropathy of the lower extremities. The Veteran was notified and did not appeal. 2. The evidence received subsequent to the September 2012 Board decision is either cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim for service connection for peripheral neuropathy of the bilateral extremities, does not relate to an unestablished fact necessary to substantiate the claim for service connection, and does not raise a reasonable possibility of substantiating the claim. 3. An April 2014 Board decision denied the Veteran’s claims for service connection for hypertension, a kidney disability, and a vision disability, to include exposure to herbicides and service connection for an acquired psychiatric disorder, to include PTSD, after further development was conducted per the September 2012 remand. The Veteran was notified and did not appeal. 4. The April 2014 Board decision found current diagnoses of these conditions, but did not find any evidence to show either hypertension or kidney disease had its clinical onset during or shortly after service. 5. The April 2014 Board decision found that the Veteran was prescribed glasses for correcting his visual acuity while in service, due to refractive error, not subject to service connection under 38 C.F.R. § 3.303(c). Otherwise, it did not find any current diagnosis of an acquired eye disability in the record. 6. The April 2014 Board decision found that there was no well-supported, current diagnosis of PTSD in the medical evidence. Moreover, while he was diagnosed with dementia and depression, the Board found no evidence that served to link any of the acquired psychiatric disorders to an in-service event or incidence. 7. The evidence received subsequent to the April 2014 Board decision is either cumulative or redundant of the evidence of record at the time of the last prior final denial of the claims for service connection for hypertension, kidney disability, vision disability, and acquired psychiatric disorder, to include PTSD, does not relate to an unestablished fact necessary to substantiate these claims for service connection, and does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The September 2012 Board decision denying entitlement for service connection for peripheral neuropathy of bilateral lower extremities, to include as due to herbicide exposure, is final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. 2. New and material evidence has not been received, and the claim of entitlement to service connection for peripheral neuropathy of bilateral extremities is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The April 2014 Board decision is final with respect to the claims for hypertension, kidney disability, vision disability, and psychiatric disability. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 4. New and material evidence has not been received, and the claims of entitlement to service connection for hypertension, kidney disability, vision disability, and psychiatric disability are not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to June 1966. The Veteran died in June 2018. The appellant is the Veteran’s surviving spouse. She has been accepted as the Veteran’s substitute (see April 2020 notification letter) for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The April 2020 notification letter explained how to designate a person or organization as her representative for VA purposes, with a VA Form 21-22 enclosed. The appellant has not appointed her representative, and thus, she is not represented on this appeal. New and Material Evidence The Veteran’s claim for entitlement to service connection for peripheral neuropathy of bilateral extremities was denied in the Board decision in September 2012, and no appeal was filed. Therefore, the September 2012 Board decision is final with respect to the claim of peripheral neuropathy of bilateral extremities. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1100 (2012). Moreover, his claims for entitlement to service connection for the other disabilities on appeal were denied in the Board decision in April 2014, and no appeal was filed. Therefore, the April 2014 Board decision is final with respect to the claims for hypertension, kidney disability, vision disability, and psychiatric disability. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2013). Prior to his death, in November 2015, the Veteran requested to reopen these Board decisions. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. 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 (a). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant’s claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant’s claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Id. at 118. Moreover, the claimant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159 (c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310 (b). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as cardiovascular-renal disease including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the appellant is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Request to reopen a claim of service connection for peripheral neuropathy of bilateral lower extremities In September 2012, the Board denied the Veteran’s claim for service connection for peripheral neuropathy of bilateral lower extremities, to include as due to herbicide exposure, for lack of competent evidence to establish a current diagnosis of peripheral neuropathy of the lower extremities. It was also found that the service personnel records showed his oversea service in Greece, but they did not show he had any service in the Republic of Vietnam. The September 2012 Board decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1100 (2012). Based on the grounds stated for the denial of service connection for peripheral neuropathy of bilateral lower extremities in the September 2012 decision, new and material evidence would consist of competent evidence for a current diagnosis of peripheral neuropathy of bilateral lower extremities. In this regard, additional evidence received since the September 2012 decision includes medical evidence; however, the new evidence does not include competent evidence for a current diagnosis of neuropathy of bilateral lower extremities, for new evidence is mostly cumulative and redundant. On this point, a June 2017 VA treatment record indicates that the Veteran was assessed with hemiparesis, a condition that might be productive of similar symptomatology and impairment as the claimed peripheral neuropathy. However, this new evidence is not material; it does not raise a reasonable possibility of substantiating the claim because the record clearly states that it was due to recurrent post-service cardiovascular accidents and the Veteran was not service-connected for any pertinent disability. As a result, the claim is not reopened. 38 U.S.C. §§ 1110, 5108 (2017); 38 C.F.R. §§ 3.156 (a), 3.303. 2. Request to reopen a claim of service connection for hypertension 3. Request to reopen a claim for service connection for a kidney disability 4. Request to reopen a claim for service connection for a vision disability 5. Request to reopen a claim for service connection for an acquired psychiatric disorder, to include PTSD In April 2014, the Board denied the Veteran’s claims for service connection for hypertension, a kidney disability, a vision disability, and an acquired psychiatric disorder, to include PTSD, after further development was conducted per September 2012 remand. As for hypertension and kidney disability, the Board found current diagnoses of these conditions, but did not find any evidence to show either hypertension or kidney disease had its clinical onset during or shortly after service. As for a vision disability, the Board found that the Veteran was prescribed glasses for correcting his visual acuity while in service, due to refractive error, not subject to service connection under 38 C.F.R. § 3.303(c). Otherwise, it did not find any current diagnosis of an acquired eye disability in the record. As for an acquired psychiatric disorder, to include PTSD, the Board found that there was no well-supported, current diagnosis of PTSD in the medical evidence. He was diagnosed with dementia and depression, but the Board found no evidence that served to link any of the acquired psychiatric disorders to an in-service event or incidence. In fact, the Board found that the evidence showed dementia was due to cardiovascular accident and mood disorder due to general medical condition (cardiovascular accident) and no indication that either of these conditions was related to service in any way. The April 2014 Board decision is final with respect to the claims for hypertension, kidney disability, vision disability, and psychiatric disability. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2013). Based on the grounds stated for the denial of service connection for hypertension, kidney disability, and acquired psychiatric disability in the April 2014 Board decision, new and material evidence would consist of competent evidence for an in-service event or incidence and a nexus between the current disability and the in-service event. As for a vision disability, new and material evidence would consist of competent evidence for a current diagnosis of acquired eye disability in addition to an in-service event or incident and a nexus between a current disability and the in-service event. Evidence received since the last final decision includes VA and private treatment records and lay statements by the Veteran or the appellant. While this evidence is new, it is not material because it does not relate to an unestablished fact necessary to substantiate the claims for hypertension, kidney disability, and acquired psychiatric disability. The new evidence associated with the claims file is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claims. As for the claim of a vision disability, a September 2017 private treatment record indicates that he was diagnosed with acute angle-closure glaucoma in the right eye and senile cataract in the bilateral eyes. While this evidence is new and shows a current diagnosis of acquired eye disability, it is not material because it does not substantiate the claim for service connection under any theory of entitlement in light of lack of any new evidence that would indicate an in-service incurrence or nexus for these conditions and lack of any service-connected disability from which a claim of secondary service connection might arise. As a result, the claims are not reopened. 38 U.S.C. §§ 1110, 5108 (2017); 38 C.F.R. §§ 3.156 (a), 3.303. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor 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.